By Brendan O’Connor
June 29, 2012
The case of PFC Bradley Manning raises significant questions about our government's willingness to respect the rule of law when it is politically inconvenient to do so, not just with regard to the content of the information PFC Manning is alleged to have leaked-- though the implications of the conduct revealed by those cables are indeed troubling, they are well-discussed elsewhere -- but in the way our government, bound by our constitution, has treated an innocent person. Innocent? Yes; it is important to remember that in the United States, as in almost every country in the modern world, we presume that every person is innocent as a matter of law, until his or her guilt has been proven beyond a reasonable doubt. While this requirement has existed in law for millennia-- there are examples of it in Roman law, and even in Deuteronomy -- the Supreme Court stated that it was clear error for any judge in a criminal trial not to state it to a jury in 1895, in Coffin v. U.S.: 
“The inevitable tendency to obscure the results of a truth, when the truth itself is forgotten or ignored, admonishes that the protection of so vital and fundamental a principle as the presumption of innocence be not denied, when requested, to any one accused of crime.”
Let us consider what our government has deemed acceptable to do to this innocent person.
Of course it is not surprising that the government should wish to detain persons accused of some serious crimes; there are many concerns with letting those accused run free, such as their absconding from justice, or even that members of the community may decide to “take the law into their own hands” and commit physical violence upon the accused. There are, however, limits in the law as to for how long the government may hold an innocent person, and their conditions of confinement.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial...” is the beginning of the Sixth Amendment. While what defines a “speedy” trial may vary between states, in federal cases a trial may commence at most 130 days from an arrest.  PFC Manning has been in custody since May 29, 2010; pre-trial motions began on February 23, 2012, a full 635 days later, or nearly five times the legal limit, and as of June 11, 2012, the actual trial has not yet begun. However, PFC Manning is not being tried under federal law; as an enlisted member of the military, charged with a crime committed in uniform, PFC Manning is subject to the provisions of the Uniform Code of Military Justice (UCMJ). The UCMJ also includes a right to a speedy trial,  which has been defined as approximately 120 days. 635 being significantly more than 120, clearly procedural safeguards have been violated-- and the right to a speedy trial has been ruled by the military courts to be of even more significance than the right in the civilian courts. 
In addition to the length of confinement before a sentence has been imposed, the constitution imposes restrictions on the conditions of such confinement-- just as it imposes upon all confinement, regardless of innocence. There have been several serious concerns regarding PFC Manning's detention, with the United Nations actually referring to the conditions (including waking PFC Manning every five minutes, all day and night, to prevent him from sleeping ) as breaking the United States' obligations under the Convention Against Torture . Tellingly, the military refused to allow the United Nations' Special Rapporteur to have an unmonitored conversation with PFC Manning-- a behavior from the government that we traditionally associate with brutally oppressive regimes, not with prisoners in Virginia and Kansas (the two states where PFC Manning has been kept). This treatment violates not just the Eighth Amendment prohibition on “cruel and unusual punishment,” but also the UCMJ's prohibition on punishment before trial. 
To protect PFC Manning's consciousness from this intentionally mind-degrading treatment, doctors have prescribed high doses of antidepressant medication, administered without consent. This treatment, too, is shocking-- and yet, in the United States, has been repeatedly affirmed by the Supreme Court, beginning with a case in which Justice Holmes famously wrote that “Three generations of imbeciles are enough,” when allowing the forced sterilization of a woman, said to be mentally handicapped, who lived in the custody of the state.  This case has in later years formed the foundation of laws which allows the government to treat those in custody without their consent; while it allows jails to control the spread of infectious diseases, such as tuberculosis, it has also been used in cases much like Manning's to medicate prisoners until they are “sane enough” to execute. 
“In all criminal prosecutions, the accused shall enjoy the right... to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor....” - Sixth Amendment
Because those accused of crimes are innocent until proven guilty, we have established high standards for what constitutes proof, and by what process such proof is to be introduced. The Sixth Amendment lays out a few baselines: a person accused must know the charges, must be able to present evidence on his or her own behalf (including using the subpoena, the state's power to require the presence of persons or documents at trial), and must have the assistance of a lawyer. Each of these rights has been trampled upon during the prosecution of PFC Manning.
The right to be confronted with the evidence against a person accused of a serious crime is, perhaps, the most basic and fundamental right in common law. In addition to the Sixth Amendment, this right is codified in the UCMJ.  Unfortunately, the government has refused to provide PFC Manning with the evidence-- both entirely, in some regards, and substantively, in others. The prosecution has in some instances turned over entire files full of blacked-out pages as “evidence,” and when asked how the defense was supposed to work with the information, said “well, that is what they have to do.” 
Full-page redactions still count, to the prosecution at least, as giving the defense something; by contrast, much of the discovery process has been characterized by the prosecution giving the defense nothing whatsoever. This has traditionally been for one of two reasons: first due to what have been, ostensibly, mistakes by the defense counsel in asking for the “right” information, which seems to change on the fly as convenient for the prosecution.  The second, however, has been the even more troubling reason-- that of “national security,” or occasionally, the “state secrets” privilege.
To say that the state secrets privilege has enjoyed a checkered past would be to imply that there have, at times, been beneficial uses of the privilege in our history. Unfortunately, that would appear not to be the case. The first case in which the Supreme Court recognized this privilege was U.S. v. Reynolds, in which the widow of an engineer killed during the flight of a B-29 Superfortress sued the government both for her husband's death, and to find out what happened; citing national security, the government refused to produce the accident report for the plane.  The Supreme Court held that a “reasonable possibility that military secrets were involved” was sufficient to deny the widow the information about why her husband died. When the documents were, decades later, declassified in a routine measure, a reporter realized that the accident report revealed nothing that had been secret-- except that the Air Force had not followed its own maintenance guidelines, causing the plane to crash.  The first exercise of the state secrets privilege was, therefore, a fraud perpetuated upon the court to cover up government wrongdoing-- and there is no reason to think that things have changed in the time since then. Every time, then, that the government cites “national security” to help to keep PFC Manning from the justice to which every citizen is entitled, every person should be greatly concerned.
Besides the right to have the evidence against oneself, the Constitution also guarantees the right to be presumed innocent until proven guilty beyond a reasonable doubt. While the specific words are not in the Bill of Rights, the Supreme Court has repeatedly affirmed this right to all citizens.  The UCMJ affirms the right as well,  and also states that no person in the chain of command may attempt to influence the outcome of a court-martial.  Unfortunately, President Obama saw fit to publicly tell the American people-- including the court-martial-- that PFC Manning is guilty, well before any evidence has been presented. 
The public also has a right in a criminal proceeding-- the right to be able to observe the trial, the “public trial” clause in the Sixth Amendment. This is a foundational principle of justice in society-- that since the prosecutor stands on behalf of the people, the people ought to be able to know what they are doing (if only by proxy). Since this is a right granted to the people at large, the Supreme Court, as recently as 2010, has ruled that the public has the right to gain access to every part of a trial.  This right is also noted under the UCMJ, in the Manual for Courts-Martial.  It will come, however, as no shock to anyone that the proceedings for PFC Manning have not been open to the public; indeed, the defense counsel has had to obtain specific permission to release every motion that he has filed to the public, and this permission has often not been forthcoming. 
So many fundamental rights have been violated; what can be done? One fact little-known outside the ranks of the armed forces is that active-duty members of the armed forces cannot sue the federal government for injuries done to them while serving; this rule, called the Feres doctrine,  means that PFC Manning has, essentially, no remedy outside the court-martial for violations of the guarantees that must be afforded to all military personnel. Other citizens of the United States cannot bring suit for the same reasons, as they would lack the necessary standing to bring such a claim. While Presley v. Georgia recognized that all members of the public have a cause of action to see criminal trials, it is likely that the government would simply argue, once again, that “national security” requires secrecy in this case.
Is there, then, no remedy? There is one: publicity. The late Supreme Court Justice Louis Brandeis once remarked that “Publicity is justly commended as a remedy for social and industrial diseases. Sunlight is said to be the best of disinfectants; electric light the most efficient policeman.”  Only through the concerted outrage of the American people can the guarantees that must be afforded to all citizens of the United States be brought back to PFC Manning. Does this mean, in the end, that a court might find this defendant not guilty? Ultimately, that is not the point; whether PFC Manning is ultimately found guilty or not is less important than that the trial conform with the rule of law. A show trial aids no one; a real trial, where prosecutors must abide by constitutional mandates, and where judges cannot be ordered to produce a certain verdict beforehand, must be the rule not only when it is convenient, but always. Anything less dismembers the concept of justice for every citizen.
 For more details from the leaks alleged to be as a result of PFC Manning's actions, consult http://www.cablegatesearch.net/.
 “When any person subject to [the UCMJ] is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.” Article 10, Uniform Code of Military Justice.
 “We have consistently noted that Article 10 creates a more exacting speedy trial demand than does the Sixth Amendment.” United States v. Mizgala, 61 M.J. 122, 124 (C.A.A.F. 2005) (citations omitted).
 David E. Coombs, “A Typical Day for PFC Bradley Manning,” December 18, 2010, http://www.armycourtmartialdefense.info/2010/12/typical-day-for-pfc-bradley-manning.html.
 Juan E. Mendez, “Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment,” February 29, 2012, p. 74, http://www.wired.com/images_blogs/threatlevel/2012/03/UN-Report-on-Bradley-Manning.pdf.
 “No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence....” Article 13, Uniform Code of Military Justice.
 Buck v. Bell, 274 U.S. 200, 47 S.Ct. 584 (1927). Interestingly, when a Georgia State University law professor, Paul Lombardo, found Carrie Buck in the 1980s, he noted that she was actually of normal intelligence, and was simply poor. http://findarticles.com/p/articles/mi_m1134/is_6_111/ai_87854861/.
 “The trial counsel to whom court-martial charges are referred for trial shall cause to be served upon the accused a copy of the charges upon which trial is to be had.” Article 35, Uniform Code of Military Justice.
 Kevin Gosztola, “Secrecy Games By Prosecution & Government Postpone Bradley Manning’s Trial”, June 8, 2012, http://dissenter.firedoglake.com/2012/06/08/secrecy-games-by-prosecution-government-postpones-bradley-mannings-trial/.
 David E. Coombs, “Additional Motion for June 25th Hearing,” June 24, 2012, http://www.armycourtmartialdefense.info/2012/06/additional-motion-for-june-25th-hearing.html.
 “No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings.” Article 37(a), Uniform Code of Military Justice.
 M.J. Lee and Abby Phillip, “Barack Obama on Bradley Manning: 'He broke the law,'” Politico, April 22, 2011, http://www.politico.com/news/stories/0411/53601.html.
 “Except as otherwise provided in this rule, courts-martial shall be open to the public. For purposes of this rule, 'public' includes members of both the military and civilian communities.” Manual for Courts-Martial, Rule 806(a).
 David E. Coombs, “Redacted Defense Motions,” April 17, 2012, http://www.armycourtmartialdefense.info/2012/04/redacted-defense-motions.html.
 Louis Brandeis, “What Publicity Can Do,” Harper's Weekly (December 20, 1913), http://www.law.louisville.edu/library/collections/brandeis/node/19.
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