Bradley Manning no longer in solitary confinement – but it doesn’t end here

As of Friday morning, Kansas time, Bradley Manning will no longer be in solitary confinement, no longer under a Prevention of Injury Order and no longer under the kind of conditions that have made the Obama Administration the subject of widespread condemnation from around the world. The formal announcement was made at the end of a press tour of the Fort Leavenworth pre-trial facility yesterday evening.

According to Associated Press, Bradley will now be housed with other military inmates awaiting trial – in his own cell, but with access to a communal area- and will have the opportunity to associate with others during three hours of daily recreation time. He will now be able to make telephone calls and freely receive letters (once they have been inspected) for the first time since his arrest, almost a year ago – subject to a restriction of having only twenty items of correspondence in his cell at any one time. Some footage of where Bradley is to be housed may be viewed here. All of this is, in the main, clearly good news.

Nevertheless, we should be aware that what we are celebrating here is the move of a prisoner awaiting trial – a prisoner who has now been awaiting trial for almost a year, itself problematic – into conditions that befit an ostensibly civilised country. In passing Bradley at his initial assessment, Fort Leavenworth have implicitly accepted that the Quantico authorities were wrong in keeping Bradley under a Prevention of Injury Order for ten months, against the repeated recommendation of military psychiatrists, that James Averhart was wrong in putting Bradley on suicide watch (well, we knew that one already) and that Denise Barnes was wrong in stripping Bradley of his clothes and his dignity.

Bradley is not a suicide risk. If he were, he would not now be being housed with other prisoners. What happened to Bradley at Quantico was and continues to be an outrage against universally accepted minimum standards and common human decency. Redress simply must be sought for this in due course and we will continue to press for this to happen. It continues to be absolutely key that independent authorities such as UN Special Rapporteur Juan Mendez be allowed confidential access to Bradley so that he may talk freely about what he was forced to endure for those ten months. We have had no indication that the restrictions imposed under Bradley’s Monitoring Order have been lifted.

Do not be under any illusions that the US military have now decided to treat Bradley in civilised fashion out of the kindness of their hearts: they will have done this because this campaign – and its sister campaigns internationally – have made it absolutely impossible for them to do otherwise. We have taken the treatment of Bradley Manning to the highest level in at least three countries and publicised his plight to the extent that he is now the subject of wide popular support internationally. All of this has, clearly, made an enormous difference and is testament to the ability of those with valid concerns to provide effective oversight to the illegitimate use of government authority.

We must now turn our attention to the wider legal process and what is likely to happen to Bradley at trial. Subpoenas citing the controversial US Espionage Act have been issued this week, an ominous move that should remind us all that this stage of the process is drawing ever nearer. We have concerns about how any trial is likely to be conducted. We have already seen Barack Obama pre-judging Bradley’s guilt and this “unlawful command influence” seems likely to become an issue when this case comes before a judge. It is also important that any trial takes place in the full light of public scrutiny. More now than ever, justice must not only be done in this case, it must also be seen to be done.

Now that it has been confirmed that Bradley Manning may receive correspondence – albeit that he’s only allowed to hold on to 20 letters at any one time – you may like to take the opportunity to write to him. His address at Fort Leavenworth is the following:

Bradley Manning 89289
JRCF
830 Sabalu Road
Fort Leavenworth, KS 66027-2315
USA

Update

Further details on Bradley’s conditions at Fort Leavenworth from National Catholic Reporter. Note the careful phrasing that indicates that Bradley Manning’s Monitoring Order, which prevents him from speaking to anyone other than his lawyer in monitored conditions in which he may incriminate himself, may well still be in place:

The commandant of the Fort Leavenworth facility, Lt. Col. Dawn Hilton, said the suspected Army private’s new classification — which “starts tomorrow morning” — allows Manning to receive Army inspected mail freely, make phone calls, and meet with preapproved visitors.

Prisoners at the facility are housed separately depending on whether they have or haven’t faced trial. There are currently ten “pre-trial” prisoners at the facility, said Hilton. Each are placed in individual 80 square foot cells and are connected by a shared common room to three other cells.

During the tour of the six-month-old facility, members of the press were able to see its indoor recreation center, work rooms, outside recreation area, medical facilities, and an empty cell block which Army officials said was similar to the one where Manning is housed.

Each of the cells contained a metallic toilet and sink, along with a bed and metal seat attached to the wall. There was a light switch on the wall inside the cell. Army officials said the space gives the prisoner 35 square feet of “unencumbered space” which can be used for exercise, including jogging in place.

Medium custody prisoners are afforded three hours of recreation each day, one hour of which is outdoors, Hilton said. They also have allotted time each day to use a recreational library. No internet use is allowed by inmates.

The indoor recreation facility was housed inside a large, gym-like structure with six basketball hoops and about a dozen stationary exercise machines. The outdoor area, located on the north side of the complex, was about a football field long, with an open grass field, two basketball courts, and more exercise equipment.

Hilton said prisoners’ visitors must be approved by the facility. While visits by journalists are forbidden, visits from nongovermental organizations such as Amnesty International are decided “on a case by case basis.” Prisoners are allowed to have up to five visitors at one time.

Update II

As was widely expected, Bradley Manning has been found fit to stand trial.

Update III

In the wake of David Coombs’ confirmation that Bradley’s conditions have indeed changed, the Bradley Manning Support Network have issued a press release making clear the contribution of the campaign in getting this done. The Guardian have picked up the story today and they make due note of the British dimension.

Daniel Ellsberg and Eugene Fidell on “unlawful command influence”

The suspicion that Barack Obama may have prejudiced the legal process against Bradley Manning is not going away. “Unlawful command influence” is, essentially, the misuse of the military chain of command to influence a legal process that not only needs to be independent, but needs to be seen to be so. Here’s how UCI is defined under the Uniform Code of Military Justice, the rules that govern how Bradley’s case will proceed:

ART. 37. UNLAWFULLY INFLUENCING ACTION OF COURT
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.
No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts.

The logic of how command influence works in practice was well described by Daniel Ellsberg on Democracy Now yesterday (Tuesday). A transcription of what he said follows below:

Nearly everything the President has said represents a confusion about the state of the law and the extent of his responsibilities.

Everyone has focused on the fact that this commander-in-chief has virtually given a directed verdict to his subsequent jurors who will all be his subordinates in deciding guilt in the trial of Bradley Manning.

He has told them already that their commander, on whom their whole career depends, believes him as guilty and they can disagree with that only at their peril. In career terms it’s clearly enough grounds for a dismissal of the charges, as in my trial, which was dismissed eventually for government misconduct.

Elsewhere, NBC’s Jim Miklaszewski (who broke this hugely important story back in January) reported on the “unlawful command authority” issue this morning. His piece breaks the following new ground:

Eugene Fidell, president of the National Institute of Military Justice, a nonprofit group that promotes the fair administration of justice in the military system, told NBC News that the president’s remark “is unlawful command influence,” which includes an assumption of guilt.

“The president shouldn’t have said it. He should have been more circumspect,” Fidell said.

Eugene Fidell was also cited in the Politico piece last week, but this statement goes further in confirming that – in the opinion of an expert in military law – Obama’s words do indeed constitute unlawful command influence. Fidell goes on to remark that this is not necessarily a problem for the trial, provided that “potential jurors could be screened to ensure they are not aware of the remark.” Presumably, therefore, if there did prove to be difficulties finding jurors who were ignorant of what Obama said on Friday, then that could have serious implications for the viability of any prosecution. A high profile piece on NBC/MSNBC, needless to say, contributes towards that possibility, as does the continuing online coverage of what seems to be, in the eyes of just about everyone, a seriously misjudged Presidential remark.

Update

Morris Davis, the former chief prosecutor for the military commissions at Guantánamo (he resigned in 2007 amid allegations of political interference in the process) has written an Op-Ed piece for the Los Angeles Times on this subject in which he assesses the likely impact of Obama’s words to be rather serious:

In 1949, Gerald Ford, then a congressman from Michigan, described his firsthand experience with command influence when he served as a Navy officer in World War II. He said: “Too often a court-martial board does not determine the guilt or innocence of the accused.” Instead, he recalled military jurors retiring to the deliberation room to ponder, “What does the Old Man [the commander] want us to do?”

When the jurors retire to the deliberation room at the Manning court-martial, they will not have to speculate on the answer; arguably the most important “Old Man” of them all has spoken, and he said Manning is guilty.

He also concludes strongly, warning of the danger for America’s moral integrity and external reputation when “the judicial process becomes a stage for political theater — when justice appears to be scripted rather than blind.”  The idea of a predetermined judicial process as a vehicle for “political theater” is one that should raise uncomfortable comparisons in anyone with a more than glancing knowledge of 20th century history.

Update II

A new MSNBC article has appeared this evening with a much more conservative spin (“Obama Comment Unlikely to Affect Outcome of Bradley Manning Trial”) and a new quote from Eugene Fidell:

“It will generate motions by the defense and will require some care in selecting the military members of the jury, a process already complicated by the extensive press coverage of this case,” Fidell said. “It was going to have to be a very careful questioning process for potential jurors, to ask if they have seen reports or read about the case. Now they’ll also have to be asked whether they heard the president’s comment and if that would make any difference to them. But that will be the extent of it, and they’ll get on with the trial.”

Update III

Glenn Greenwald, speaking on Democracy Now, has described Obama as exerting “an amazing amount of improper influence over the military process.”

One of the cardinal rules about being a President is that you don’t decree private citizens guilty of crimes before they’ve been adjudicated of having been convicted of a crime. Amazingly, John Mitchell – the most corrupt Attorney General in American history – knew that, because Richard Nixon once stood up in the middle of the Charles Manson trial, who everyone thought was guilty while the jurors were sequestered and said, “he’s killed eight people.” John Mitchell knew that that was inappropriate, that you can’t do that and forced Nixon toretract it.

Here it’s much worse for Obama do to that because Bradley Manning is a member of the military under his command. The people who will decide his guilt are inferior officers to Obama as Commander in Chief. It’s an amazing amount of over- and improper influence over the military process.

Barack Obama on Bradley Manning – “We’re a nation of laws!”

On Thursday morning Pacific Time, a group of Bradley Manning supporters staged a flashmob at a Barack Obama fundraising event in San Francisco. Even more amazingly, one of those supporters, Logan Price, was able to question the US President directly afterwards:

Here’s a close-to-verbatim account of what was said:

So people can have philosophical views [about Bradley Manning] but I can’t conduct diplomacy on an open source [basis]… That’s not how the world works.

And if you’re in the military… And I have to abide by certain rules of classified information. If I were to release material I weren’t allowed to, I’d be breaking the law.

We’re a nation of laws! We don’t let individuals make their own decisions about how the laws operate. He broke the law.

[Q: Didn't he release evidence of war crimes?]

What he did was he dumped…

[Q: Isn't that just the same thing as what Daniel Ellsberg did?]

No it wasn’t the same thing. Ellsberg’s material wasn’t classified in the same way.

I suppose it’s reassuring to hear the US President reaffirming the importance of the rule of law (if not, unfortunately, the principle of innocent until proven guilty). Nevertheless, if “we don’t let individuals make their own decisions about how the laws operate” maybe he should point this out to James Averhart, who decided off his own back that suicide watch could be used as a means of punishment rather than protection.

Barack Obama might also want to have a quiet word with Denise Barnes about the use of forced nudity as a punitive measure. The President may moreover find it worthwhile to talk to that “senior official” at Quantico who reportedly ruled back in January that Bradley Manning should never have his Prevention of Injury Order lifted, against the repeated recommendations of Quantico psychiatrists. This same official is quoted as saying: “We’ll do whatever we want.”

It seems increasingly evident that at least one civilian and at least one military official at the Pentagon has come to the conclusion that these three individuals and their – how should I put this? Interesting use of initiative? – now have the potential to cause them very serious problems indeed once David Coombs’ writ of habeas corpus receives due consideration. There is ample precedent in case law that members of the US military are entitled to due process in that they are presumed innocent until proven otherwise and that procedures for the relief of their conditions need to work in a fair way and not be subject to the predetermination of military authorities.

Not only do the acts of certain individuals at Quantico risk putting the entire legal process against Bradley Manning in jeopardy, should those inividuals be found to be at fault, there is a mechanism by which they may be found personally responsible. Article 93 of the Uniform Code of Military Justice provides that “Any person … who is guilty of cruelty toward, or oppression or maltreatment of, any person subject to his orders shall be punished as a court-martial may direct.” If the US is indeed a “nation of laws”, then they should have reason to be concerned.

(Many thanks to Marcy Wheeler whose close analysis of who has been saying what to whom provided the impetus for this post.)

Update I

A great piece has just been posted at WLCentral that takes a different – somewhat more pessimistic – slant on Obama’s words, noting that the US President is an individual who very much can “make decisions about how the law operates”:

Ideally, the US is a nation of laws but in reality it is not. The Executive Branch led by the President of the United States can choose what legal restrictions to abide by and what not to and it can choose what violations of the law to prosecute and what not to prosecute.

This being so, the author argues that when a figure with this kind of discretion openly dispenses with any sensitivity to the case being sub judice, the ramifications are very serious indeed:

Displaying this attitude that he is guilty before he actually is put on trial and convicted may prejudice Manning’s case. In the same way that criminal and civil liberties lawyer Alan Dershowitz suggested former President George W. Bush was prejudicing the legal process against WikiLeaks founder Julian Assange when he declared [he had] “willfully and repeatedly done great harm” and refused to participate in an event with Assange.

Update II

Michael Whitney at firedoglake clarifies that the writ of habeas corpus David Coombs was considering filing is now “moot” as a result of the move. Shame.

Update III

Barack Obama’s predetermination of the case against Bradley Manning is now being picked up by mainstream media outlets. CBS are now covering the story, the New York Daily News (whose record on reporting this case is not great) concede it “may have run afoul of Presidential protocol” and Politico actually cite a couple of commentators unafraid to take the President to task:

“The comment was not appropriate because it assumes that Manning is guilty,” Steven Aftergood, a classified information expert at the Federation of American Scientists, told POLITICO. “The president got carried away and misspoke. No one should mistake a charge for a conviction – especially the nation’s highest official.”

Eugene Fidell, president of the National Institute of Military Justice and military law expert, predicted that before the end of the day the White House will have issued a corrective statement.

That “corrective statement” has yet to appear.

Update IV

An updated version of the Politico article includes a not-terribly-convincing response from the White House:

White House spokesman Tommy Vietor said Obama was in fact making a general statement that did not go specifically to the charges against Manning. “The president was emphasizing that, in general, the unauthorized release of classified information is not a lawful act,” he said Friday night. “He was not expressing a view as to the guilt or innocence of Pfc. Manning specifically.”

This is, to say the least, an interesting interpretation of the sentence “He broke the law.”

Politico then cite Steven Aftergood and Eugene Fidell on the likelihood of Obama’s comments having an influence on Manning’s court martial:

Aftergood and Fidell agreed that Obama’s remarks — while unfortunate — probably will not affect whether Manning will receive a fair trial. “It’s not that hard to ensure that unlawful command influence hasn’t in fact prejudiced the right to a fair trial,” Fidell explained. “If the case goes to a court marshal, the military court will have to make sure that none of the members of the military jury have been influenced by the president’s stated belief that Manning broke the law.”

It is not surprising that the White House is keen to play down this incident. Military case law indicates that “pretrial publicity itself may constitute unlawful command influence” (United States v. Simpson, 58 MJ 368) and, if this is raised at court martial, the US Government will have to prove beyond reasonable doubt that the case has not been prejudiced. (United States v. Reed, 65 M.J. 487) Should unlawful command influence be proven, incidentally, then dismissal of the case is possible “as a last resort.” (United States v. Douglas, 68 M.J. 349)

Update V

Glenn Greenwald has now written a typically excellent piece on all this, pointing out the hypocrisy of Obama calling the US a “nation of laws”:

…it’s long been clear that this is Obama’s understanding of “a nation of laws”: the most powerful political and financial elites who commit the most egregious crimes are to be shielded from the consequences of their lawbreaking — see his vote in favor of retroactive telecom immunity, his protection of Bush war criminals, and the way in which Wall Street executives were permitted to plunder with impunity — while the most powerless figures (such as a 23-year-old Army Private and a slew of other low-level whistleblowers) who expose the corruption and criminality of those elites are to be mercilessly punished. And, of course, our nation’s lowest persona non grata group — accused Muslim Terrorists — are simply to be encaged for life without any charges. Merciless, due-process-free punishment is for the powerless; full-scale immunity is for the powerful. “Nation of laws” indeed.

Greenwald also draws attention to this interesting precedent of a US President pre-judging a criminal case. This example involves Richard Nixon and, as Greenwald points out, what Obama has done is arguably far worse:

Amazingly, this incident … is highly redolent of the time Richard Nixon publicly declared Charles Manson’s guilt before the accused mass murderer had been convicted. Nixon’s Attorney General, John Mitchell, was at Nixon’s side when he did it and immediately recognized the impropriety of Nixon’s remarks, and the White House quickly issued a statement claiming that Nixon misspoke and meant merely to suggest Manson had been “charged” with these crimes, not that he was guilty of them. Obama’s decree was worse, of course, since (a) Obama has direct command authority over those who will judge Manning (unlike Nixon vis-a-vis Manson’s jurors); (b) Manson’s jurors were sequestered at the time and thus not exposed to Nixon’s proclamation; and (c) Obama is directly responsible for the severe punishment to which Manning has already been subjected (h/t lysias).

“An Egregious Breach” – Bradley Manning denied prison visit

Earlier today, David House and Jane Hamsher of firedoglake arrived at Quantico Marine Base in Virginia to visit Bradley Manning – as David House has been doing since September – and to deliver a 42,000 signature petition protesting against the conditions of Bradley Manning’s pretrial detention. They were not able to do either.

House and Hamsher were detained on the grounds of the base, not only unable to enter the brig, but also unable to leave, for two full hours – the full time allotted to Bradley Manning for visits from the outside. Full details of this detention are given in this statement.

I think it’s worth remembering what David House himself said in his CBC interview a couple of days back:

Do you think you’ll get a chance to see Bradley Manning tomorrow, when you’re in Virginia?

I think I will. I have had some trouble in the past actually making it into the brig due to security precautions on the base. I do not think the brig would deny access to what has become one of his only visitors. To do so would be an egregious breach on the part of the brig. I cannot imagine them doing that.

This action, then, from the Quantico authorities marks a real step up in their intimidation of Manning and his supporters. House and Hamsher’s visit had been previously announced to the proper authorities and guards on the ground were candid about their orders to frustrate both the visit and the delivery of the petition having come from the top (see also this and this).

It’s appalling to even have to think about this, but this action from Quantico comes hard on the heels of public protests outside the complex, the letter from Amnesty and renewed legal protest from Manning’s lawyer, David Coombs. It is probably also significant that this was David House’s first attempt to see Manning after speaking out about what Bradley has been experiencing, most recently after his two-day spell under suicide watch last week. Cancelling visits is, of course, something that will harm Bradley Manning directly – as per usual Glenn Greenwald is on the money here – so, if we are to frustrate the Marine top brass’ aims, spreading the news about what has happened today is critically important.

Update I
I’ve just seen that chomp.fm have prepared an emergency broadcast on this subject.

Update II
Here’s Jane Hamsher’s account of what happened at Quantico. David House will attempt to visit Bradley again next weekend.

Update III
Now covered in The Guardian too. I’m not holding my breath for the New York Times article.

Amnesty weighs in

And about time too. The contents of a letter sent to US Defense Secretary Robert M. Gates last week have been released. Here are a few of the critical paragraphs:

Amnesty International recognizes that it may sometimes be necessary to segregate prisoners for
disciplinary or security purposes. However, the restrictions imposed in PFC Manning’s case appear to
be unnecessarily harsh and punitive, in view of the fact that he has no history of violence or disciplinary
infractions and that he is a pre-trial detainee not yet convicted of any offence.

The conditions under which PFC Manning is held appear to breach the USA’s obligations under
international standards and treaties, including Article 10 of the International Covenant on Civil and
Political Rights (ICCPR) which the USA ratified in 1992 and which states that “all persons deprived of
their liberty shall be treated with humanity and with respect for the inherent dignity of the human
person”. The UN Human Rights Committee, the ICCPR monitoring body, has noted in its General
Comment on Article 10 that persons deprived of their liberty may not be “subjected to any hardship or
constraint other than that resulting from the deprivation of liberty; respect for the dignity of such
persons must be guaranteed under the same conditions as for that of free persons …”.

The harsh conditions imposed on PFC Manning also undermine the principle of the presumption of
innocence, which should be taken into account in the treatment of any person under arrest or awaiting
trial. We are concerned that the effects of isolation and prolonged cellular confinement – which
evidence suggests can cause psychological impairment, including depression, anxiety and loss of
concentration – may, further, undermine his ability to assist in his defence and thus his right to a fair
trial.

There are now a sizeable number of medical, psychological and international legal authorities who have expressed serious concerns about the conditions Bradley Manning is experiencing at the Quantico brig. Some of these authorities would be inclined to use the word ‘torture’ to describe these conditions and, indeed, the situation is now under official investigation from the UN’s Special Rapporteur on torture, Juan E. Mendez.

Bradley Manning is a dual UK/US citizen and as such is entitled to consular assistance from the UK. The UK Government tends not to intervene where dual citizens are involved with their other nation of citizenship, apart from in cases where they see “a special humanitarian reason to do so” – but I would have thought that a case under investigation by the UN and Amnesty would qualify, frankly. So just where is the British Government’s comment on all this?

Two Revelations

This blog was directly inspired by Glenn Greenwald’s article of 15th December, The inhuman conditions of Bradley Manning’s detention. This article profoundly shocked me, and for two distinct reasons.

I already knew, of course, that Bradley Manning was a young soldier awaiting trial in the US on charges of releasing military and State Department data. I knew that at least some of what Manning was alleged to have leaked exposed significant wrongdoing on the part of the US military, wrongdoing that the world needed to be made aware of.

I also already knew that penal conditions in the United States can be extremely tough, more so than would be tolerated in Western Europe, and that military justice was likely to be even worse, if anything.

What I wasn’t aware of was the exceptional, solitary, higher-than-supermax, regime that Bradley Manning was – and still is – experiencing, even though he has not yet had his trial date set, let alone been convicted of any crime.  An increasing number of doctors, psychologists and international legal authorities would be inclined to say that such conditions amount to torture.

I also was not aware of the following:

…because Manning holds dual American and U.K. citizenship (his mother is British), it is possible for British agencies and human rights organizations to assert his consular rights against these oppressive conditions.

There is much more to say about all this. But that was my starting point, just over a month ago.