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March 08, 2011

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I'm not sure what to do with this information. Sickening, disgraceful, evil (particularly since the frenzy to punish Wikileaks has more to do with embarrassment than with national security)... granted. Agreed.

But the US is profoundly indifferent to the cries of its own citizens, unless said citizens control a few hundred millions of dollars. Resolution passing and letter writing are about as useful as shoveling sand against the tide.

There just doesn't seem to be any use to appealing to higher selves, better natures, simple justice, or even the arc of history. We've sold off or shat on every value we used to hold as a self-evident truth.

I don't know. Maybe if someone set themselves on fire? It worked in Tunisia...

I am ashamed that I volunteered for the Obama campaign in 2008. My "but the Republicans are worse" justificaiton is sounding more hollow by the day.

I'm interested in this discussion, but most of what I see seems to link back to Greenwald. Greenwald was challenged by Ed Babbin on why an IG complaint hasn't been filed, noting it could be filed even by Greenwald himself. The implication is "no IG's complaint no reason to complain." I know Coombs questions the efficacy of such an investigation since the IG's office has no enforcement authority.

And why hasn't the SJA acted? I'm not clear on what they are seeing. Is there some justification not being voiced?

A commenter at Balloon Juice (soonergrunt) discussed his view that Obama can't lawfully act in this case without raising the specter of unlawful command influence. Although I'm reading up, I don't know enough to have an opinion about it. I do think that the "blame Obama" brigade might also consider looking into what it would mean for Obama to intervene personally.

The UCMJ is a law passed by Congress, and can be amended by Congress. Bradley Manning's case is going through the process provided for by the UCMJ, and whatever conclusion is reached will be subject to appeal (including defense motions regarding Manning's pretrial treatment, as well as procedural irregularities).

Anyway, it's interesting that Manning is being charged under 18 U.S.C. 641, a possibility that was discussed here previously.

A commenter at Balloon Juice (soonergrunt) discussed his view that Obama can't lawfully act in this case without raising the specter of unlawful command influence.

That claim seems to bring in some interesting assumptions. It assumes that no one in the White House has ever informed anyone in the DOD that punishing leakers should be a priority or that bringing charges against Assange was a priority or that Manning should be "encouraged" to say all the magic words needed to convict Assange. And maybe all those assumptions are true. I don't think we can know for certain unless the government is prepared to publish all manner of internal communications that it will never publish in a million years. This is one fo the downsides of the national security state: it becomes impossible to demonstrate that government is acting properly, even when it is.

It seems kind of odd that some random brig workers took it upon themselves to humiliate and degrade Manning all of their own volition, all while the White House is desperately seeking evidence they can use to convict Assange.

Greenwald was challenged by Ed Babbin on why an IG complaint hasn't been filed,

Is that some sort of conservative parody/spoof site bc?

"That claim seems to bring in some interesting assumptions. It assumes that no one in the White House has ever informed anyone in the DOD that punishing leakers should be a priority or that bringing charges against Assange was a priority or that Manning should be "encouraged" to say all the magic words needed to convict Assange."

I don't think that the unlawful command influence has anything to do with the first things you mention. It probably does have to do with Obama directing anything specific about Manning.

Jed Babbin is making an odd sort of argument: that because Greenwald hasn't made a complaint to some outfit he may not even have known the existence of, he therefore certainly is aware that all of these allegations of abuse & neglect are bogus.

Also, that because Manning certainly did what he was alleged to have done, there is every reason to inflict arbitrary indignities upon him.

Pretty shoddy reasoning, I think.

I don't think it was ever Greenwald's point that Manning should not be punished for crimes he's found guilty of committing. I think Greenwald is saying something more like: let's have the trial first, and then punishment, provided a guilty verdict is reached.

And if that happens: punishment along some standard guidelines, and not some vindictive infliction of indignity and discomfort.

This may very well be a liberal position to take in this matter, but if it is: sign me up. This is the way our system of justice is supposed to work. If being a conservative means we can suspend rules for people we don't particularly like, I discard the label.

"I don't think it was ever Greenwald's point that Manning should not be punished for crimes he's found guilty of committing. I think Greenwald is saying something more like: let's have the trial first, and then punishment, provided a guilty verdict is reached."

No, I think Greenwald's point is (quoting Greenwald): "The treatment of Manning is now so repulsive that it even lies beyond what at least some of the most devoted Obama admirers are willing to defend." His point is that Obama is guilty of torture. It's Obama's fault, and Obama could fix it if Obama were a better President. This is Greenwald's refrain.

bc, I link numerous other sources above, including Manning's official complaint. Greenwald is not the only source.

Turbulence, it's not random brig workers but the brig commander who has ordered this. What I find disturbing is that Manning's complaint was supposed to be routed *through* the brig commander's office on its way to a more powerful official office, and it apparently never reached its goal. I am no military authority, but that seems like overreaching to me.

Ah, thanks for the correction fiddler.


sapient: I don't think that the unlawful command influence has anything to do with the first things you mention. It probably does have to do with Obama directing anything specific about Manning.

I don't understand. Presumably, if the White House sent the brig commander a memo saying "make Manning's life as hard as possible until he cooperates with prosecutors", that would be unlawful command influence, right?

So, if the White House sends different memos to different groups at the DOD, and the intended and actual effect is for the brig commander to make Manning's life as hard as possible until he cooperates with prosecutors, is that still unlawful command influence? I mean, if the White House launders their request through different people and uses sufficiently vague language, secure in the understanding that at the end of the day, the cossacks work for the czar, that certainly seems problematic to me.

If Manning cracks under his treatment and tells the prosecutors everything they want to know, that might just translate into a very good rating at the brig commander's next review. Because, you know, making the boss happy tends to be good for your career, whether or not the boss ever asked for anything specific.

There's no underwear that can be issued that is useless for killing oneself?

In Army facilities, there most certainly is. Standard issue to prisoners on suicide watch. Either the Navy lacks this sophisticated technology, or they're choosing not to use it because Manning is sufficiently wily that even harmless items can be used to harm himself. Obviously.

Navy, because Manning is being held by Marines, who are associated with the Navy instead of the Army. I can't help thinking that Manning was given to the Marines because of concerns that he would receive too much sympathy for his whistleblowing from soldiers if he were to be confined in an Army brig. Putting him with the Marines isolates him from all lines of contact with the Army people he knows.

This actually may not be an effort to isolate him from his service. The Army does not currently operate an eastern regional confinement facility, so if they want him accessible to any VIPs thereabouts, the closest Army facility would be in Kansas.

Turbulence: "So, if the White House sends different memos to different groups at the DOD, and the intended and actual effect is for the brig commander to make Manning's life as hard as possible until he cooperates with prosecutors, is that still unlawful command influence?"

Did the White House do that? Must have missed reading about the memos that Obama supposedly wrote that had the "intended and actual effect" of making Manning's life as hard as possible. Link?

'His point is that Obama is guilty of torture. It's Obama's fault, and Obama could fix it if Obama were a better President.'

If conservatives are the main demons and Babbin writes for a 'conservative spoof site' and Slarti might discard the conservative label, is President Obama now a conservative or are there actually other classes of people, maybe even modern day liberals, who do not always do the right thing?

And, of course, this all assumes Greenwald has the facts. And, of course, he knows about IG's and their roles in these types of episodes.

I can, I suppose, see that some actions by the President might constitute "unlawful command influence." But the treatment that PFC Manning is being subjected to would be excessive even if he had already been tried and found guilty. To order that it be stopped would seem to fall well within the President's oath to see that "the law is faithfully executed."

sapient, please note the conditional in the sentence that you quoted. I don't know whether the White House has passed on marching orders to the DOD to abuse Manning or whether the brig commanded decided to do that completely on his own initiative. But I don't see why we should just naively assume that the White House would never ever communicate its desires in such a fashion.

envy, I'm not sure why Manning would be required to be located on the East Coast, as opposed to anywhere else in the US -- I don't have a sense that putting him at Quantico was done so that he would be available to anyone in particular. Is it common for one branch of service to drop its prisoners-awaiting-court-martial into another branch's brig?

However, from what I've heard of conditions at the military prison at Leavenworth, that wouldn't be an improvement.

wj: "But the treatment that PFC Manning is being subjected to would be excessive even if he had already been tried and found guilty. To order that it be stopped would seem to fall well within the President's oath to see that 'the law is faithfully executed.'"

I'm not at all certain that taking an interest in the plight of particular federal prisoners, particularly soldiers, is something that Obama should be doing as commander-in-chief. If he did, wouldn't every single prisoner expect similar scrutiny?

"I don't see why we should just naively assume that the White House would never ever communicate its desires in such a fashion." I naively assume what there's evidence for rather than rashly accusing the President of encouraging prisoner abuse.

I wasn't trying to explore Glenn's position so much as contradict Babbin's cartoon version of it.

Which is hard to do, given that Glenn is an abject Commie, and all.

sapient, I agree that it would not be good to establish a precedent that the President follow the details of every case that comes along. On the other hand, if it comes to his attention that the law is not being properly followed (which would seem to be the case here), directing SecDef to see that the Navy/Marines, not just in this case but generally, are clear on the law is hardly at that level.

Yeah, if "Don't torture anybody" isn't something the president can tell the DOD, well, that's just weird. I'm no lawyer, but still...

"directing SecDef to see that the Navy/Marines, not just in this case but generally, are clear on the law is hardly at that level."

I think that there's an appropriate procedure where the law is tested before a judge. Obama doesn't really know whether Manning is being treated unlawfully or not unless he is presented with evidence. All he knows is what's been reported, mostly by Glenn Greenwald and Manning's attorney - not exactly objective people. It certainly seems from their accounts that he is being treated badly. I'm glad that Manning's lawyer is fighting hard for him.

So the corollary to "Don't torture anybody" is "I'm hearing bad things. I don't want to find out that they're true."

"Yeah, if "Don't torture anybody" isn't something the president can tell the DOD, well, that's just weird. I'm no lawyer, but still..."

I'm pretty sure he's said that.

Maybe they forgot to post it on the bulletin board in the kitchen. Someone should remind them.

I'm pretty sure he's said that.

Funny, I looked that up myself today because of this thread, and I'm not sure it even applies to Manning because I don't think he's categorized as an "individual detained in any armed conflict." Further, I'm not sure he's being actively interrogated, as opposed to being subject to this sort of treatment with the unexpressed hope that he'll "get the message" and coorporate, though I think I recall reading somewhere (probably Greenwald's site) that there had been an offer (or an allegation of an offer) of better treatment in exchange for cooperation.

One interesting note is that Jed Babbin says Manning is gay, based on what I'm not sure and this is the first I've heard of that (assuming it's true). But if it's true, it certainly gives another potential reason why the USMC might be treating him so badly (the USMC not being the most gay-friendly place in the world).

"And that is why I can stand here tonight and say without exception or equivocation that the United States of America does not torture." 2009 State of the Union.

Obama doesn't have to direct people not to torture federal prisoners - it's presumed in the Constitution, and it's tested in the courts. The question is whether it's incumbent upon Obama to intervene in specific cases that come to his attention - surely the unlawful command influence problem would come into play then.

I'm not sure why anyone would assume that Obama 1) wants people tortured; 2) wants the PR problems associated with mistreating Bradley Manning. He probably would like to see Assange prosecuted, but I don't think that he's so diabolical (or politically stupid) to think that it would be worth torturing Manning to obtain that result (especially since it hasn't had any success). Nothing in Obama's biography points to "pro-torture" values. On the other hand, I'm sure he does defer to federal officials charged with administering the law to follow procedures that are authorized under the law and appropriate regulations, especially when there are due process protections available (and being pursued in this case) to defendants. I mean, this is going to come before a judge. Then it will probably be appealed to an appellate judge. If the judge decides that there has been abuse, there will be remedies. If those remedies aren't adequate under the law (which I don't think they are), then Congress should enact better remedies. This is not for Obama to solve.

sapient, are you saying that (contrary to Harry Truman's saying) the buck doesn't stop with Obama? I seem to recall that during the Bush administration the policies on treatment of prisoners were either reviewed by or issued from Defense Secretary Rumsfeld with (probably nonwritten) consent from Cheney and/or Bush. Or does ultimate responsibility for the treatment of prisoners only rise to the president's desk when the prisoners are "them" and not "us"?

It is not undue command influence for any commander to tell his subordinates to comply with the law, whether generally, or in a specific case. What undue command influence refers to is a higher level commander directing what level of punishment an offense warrants. I can't tell a subordinate commander that all DWI offenses must result in a general court martial. What I can do is reserve all DWI offenses to my level of command, and then apply that measure myself. The point of the rule is that the convening authority is exercising his own judgment.

An example of this would be as a company commander, my 1st sergeant gets busted for DWI. In order to protect him from greater punishment, I quickly execute a company grade article 15, and suspend all fines and punishment. By doing this, I can prevent my higher commander exercising his authority to punish, because it would be double jeopardy. Even though an Article 15 is "non-judicial" punishment, it is in lieu of a court martial (soldiers waive the right to try it by court martial when accepting the article 15). Most commands therefore specify that company commanders do not have authority over DWI cases (in part because they do not have the authority to exact the level of punishment thought necessary).

If Obama was to declare that Manning is guilty, and deserves the death penalty, that would be undue command influence (though with the commander in chief role this is something of a theoretical issue: he is not subject to UCMJ and he can't be the convening authority, so the extent that it even applies is questionable).

Demanding that a high profile prisoner receives proper treatment is well within his role and duties if he chooses to exercise them.

Obama doesn't have to direct people not to torture federal prisoners - it's presumed in the Constitution, and it's tested in the courts.

Tested? Really? So, does that mean that people who have been tortured by the US government can present their case and have it investigated in good faith?

As I understand it, the current administration has fought tooth and nail against previous victims of US government torture getting any relief in court. Their behavior in this regard is no different than the Bush administration. In fact, I believe it is the stated policy of the current administration that people who have committed torture on behalf of the US government will not be brought to justice. Americans who drive 10mph over the speed limit or who carry 1oz of marijuana on their persons will be prosecuted to the full extent of the law, but Americans who waterboard people while collecting a government paycheck? They need not fear: the administration will not prosecute them.

I'm not sure why anyone would assume that Obama 1) wants people tortured;

People with power generally engage in torture because it advances their interests. Of course Obama has no interest in torturing Manning for the sake of torture. But that doesn't mean that torturing Manning wouldn't advance Obama's other goals.

2) wants the PR problems associated with mistreating Bradley Manning.

What PR problem? Manning's not on the TV news. 99% of voters have no idea what sort of treatment he's getting. There is no PR problem.

He probably would like to see Assange prosecuted, but I don't think that he's so diabolical (or politically stupid) to think that it would be worth torturing Manning to obtain that result (especially since it hasn't had any success).

The US government has a long history of continuing stupid ineffectual policies in the hope that eventually, they'll succeed. Surely you're familiar with the war on drugs?

Nothing in Obama's biography points to "pro-torture" values.

You mean besides his administration's documented refusal to prosecute US government agents who tortured people? And besides the administration's efforts to suppress and delay civil cases by torture victims against the US government?

I want to emphasize this: the administration's stated policy is that it will not prosecute government officials who have engaged in or authorized torture. That's a straight up violation of the Convention Against Torture. Violating the CAT seems like the dictionary definition of "pro-torture" values.

CaseyL, it's taken me a while to think of how to respond to your comment. I don't think it's out of line to feel overwhelmed by Manning's situation. But I don't think that's the end of the story. Putting information together like this may be the first step, or maybe the second, since I have pulled quotes from all over the place to do it. The next step might be for people who are distressed by this to take an action that might help change things. It's not up to me to say what that would be for anyone, though writing to or visiting one's Congressperson may be in order. I do not think self-immolation would be helpful.

I realize that I'm not always as skillful at putting together a post as I would like; it is considerably more difficult to write about the deliberate cruelty that Manning endures than to write about the considerable stupidity that occurred within HBGary Federal. If all that has occurred is that you were distressed and made hopeless, I apologize.

I do not think that everyone in government or the military is corrupt, venal or compromised. Where I live, I see people who work in both of those areas daily, and many are hardworking, honorable and a credit to their places of employment. But sometimes the people who are in power may need to be reminded that they, too, are subject to laws, rules, and regulations -- and the appearance of the abuse of power can be harmful, too.

I hope some of this can be an answer to what you said.

fiddler, Bradley Manning's situation is quite different from the Bush torture regime for many, many reasons. I'll name a few of them:

1) Bush/Cheney Rumsfeld opened up prisons that were beyond the jurisdiction of United States courts specifically so that prisoners (taken in foreign countries) would not have any court to test their treatment.

2) Bush/Cheney's Office of Legal Counsel (John Yoo) wrote memos specifically authorizing treatment of prisoners that was contrary to any prior understanding of acceptable treatment. These memos were specifically requested by Bush, Cheney or cabinet members. In other words, the OLC memos were barely subject to court challenge since they authorized actions which were taken beyond the purview of any court.

3) The abuse that occurred under Bush/Cheney was much more obviously "torture." Although some would describe Manning's treatment as torture, it occurs all over the United States in federal and state prison systems. Thus it is not outside the realm of authorized prisoner experience. Again, I'm not arguing in favor of the treatment, but whether the treatment is torture or not can be litigated before a judge (remember three branches of gov't? checks? balances?).

4) Guantanamo (for example) wasn't a prison created by Congress with statutory procedures governing it. Bush/Cheney created it under Bush's executive authority. Quantico is a facility created by Congress. Criminal procedure is governed by the UCMJ, passed by Congress. Prisoners have various avenues for appeals to judicial authorities.

See the difference? Sure, Obama has a certain remote accountability for things that happen as a matter of executive policy. On the other hand, if he intervenes in certain cases, he can be accused (rightly) of exercising political influence.

Unlike Bush/Cheney victims, Manning has access to due process. His lawyer has made defense motions in order to officially bring issues concerning his treatment before appropriate fact finders and judicial officers. Maybe what's happening to him is allowed. Maybe they'll eventually find that it isn't. But there is a procedure to determine that through the UCMJ. Etc. It's a crummy system, military justice (IMHO). But it's a system under laws passed by Congress, that allows redress for treatment found to be unlawful. That's why Manning has a lawyer going through these procedures. Otherwise, he'd be petitioning the King (or Obama). That's not how it works in the U.S. system of justice.

This is not for Obama to solve.

Um...his position at the top of the military chain of command makes it his to solve, if he should so choose. If not, why not?

Turbulence, you're forever hung up on the failure of Obama to prosecute people in the previous administration. But doing so is politically impossible. I don't want to discuss this subject because we will never agree. You, who are such a self-proclaimed public policy expert on the art of the possible (when it comes to other issues) have a blind spot about how impossible it would be for Obama to prosecute Bush/Cheney/Rumsfeld, people who were "elected" [questionable, of course], and supported by the Republican party and the rich. Hell, his attempts to close Guantanamo was met with overwhelming (and effective) opposition from both parties. Get it? Not practical; not possible; would derail any other decent thing that might actually be possible during his time in office. But I won't convince you of that, so fine.

Turbulence, you're forever hung up on the failure of Obama to prosecute people in the previous administration.

sapient, this isn't about me. You stated that there was no reason to believe that Obama had "pro-torture values". I pointed out that he's publicly stated that he plans on violating the CAT. Which contradicts your claim. Now, maybe he's violating the CAT because he thinks that to do otherwise is politically impossible. That might be true (although I don't think any administration official has raised that point, even on background). But that doesn't change the reality: we have ample evidence of Obama's "pro-torture values".

Moreover, you still haven't addressed the fact that the administration is doing everything in its power to block, delay and suppress civil claims by torture victims. In fact, based on the Wikileaks data, we know that it is working hard to suppress inquiries in other countries! I don't see any political justification for such behavior.

'I pointed out that he's publicly stated that he plans on violating the CAT."

If by violating the CAT, you mean he's not going to pursue a losing prosecution of torturers, I disagree that this shows "pro-torture values." And, as I said, we won't agree on this. And if you think his Justice Department shouldn't defend cases against the United States, you don't understand the role of the Justice Department. But I wouldn't have assumed that you would have understood it, or agreed with me about it in any case. (Of course, in his most important role as pertains to justice, appointing justices, his appointees would be likely to decide cases just as you would hope, even in the face of his Justice Department's fervent advocacy of positions you oppose. Too bad he has so little opportunity to appoint people since the Senate has failed to confirm his appointees, both judicial and executive - another reason the President has trouble accomplishing your dreamy agenda).

And if you think his Justice Department shouldn't defend cases against the United States, you don't understand the role of the Justice Department.

When someone working for the US government kidnaps some innocent dude and wires up a car battery to his genitals, and said innocent dude then sues the government, I think the DoJ's role is to arrange for a large cash settlement before the case ever winds up in court.

But perhaps you can enlighten me: why shouldn't the DoJ arrange cash settlements with innocent people who can prove that they have been horrifically tortured by the US government?

sapient,

The question is whether it's incumbent upon Obama to intervene in specific cases that come to his attention - surely the unlawful command influence problem would come into play then.

The answer is "Yes. It is." I don't see the "unlawful command influence" point at all.

I'm not sure why anyone would assume that Obama 1) wants people tortured; 2) wants the PR problems associated with mistreating Bradley Manning.

I think his actions are fair grounds for that assumption. I agree that I don't understand WTF he is doing or why, but the fact is he's doing it.

Turbulence: "car battery ... genitals"

Could you tell me which case this is? I can think of a couple of reasons. Maybe they're disputing the facts. Maybe they're wanting a court to create some precedent for what should happen in the case in all administrations, rather than shoving it under the rug as a matter of Obama's particular policy.

Bernard: "I don't see the "unlawful command influence" point at all."

Are you a lawyer and have you worked on military cases? Just curious, because it's a problem particular to military law, apparently. If you aren't, I'll do my best to explain what I know. If you are, perhaps you could expand on your comment a bit?

Thank you, Countme--in. This is what I'm talking about - the sad reality.

Could you tell me which case this is?

Didn't you read my comment? It was part of a hypothetical. I thought that was clear....

I mean, there have been many people tortured by the US government. So far as I know, they've all been denied justice. Are you aware of any cases where someone has been tortured by the US government and won a non-trivial monetary award in court or received a non-trivial monetary settlement outside of court?

I can think of a couple of reasons. Maybe they're disputing the facts.

Do you really find it plausible that the US government is disputing the facts in EVERY SINGLE TORTURE case? All of them? Even cases like Maher Arar where our allies have concluded that the US was responsible for torturing him? Doesn't that strike you as...implausible?

Maybe they're wanting a court to create some precedent for what should happen in the case in all administrations, rather than shoving it under the rug as a matter of Obama's particular policy.

Is there any evidence to support this notion? Any at all? Can you find even one administration official discussing this possibility, even anonymously in the press?


Your response puzzles me because I think the ethical obligation to right wrongs one has made in the past is pretty clear. And I don't see what aspect of the DOJ's "role" removes that obligation. If the Department of Justice can't manage to cut a settlement with even one torture victim....well, maybe they're not serious about redressing US government torture.

sapient, I'd like to see your response to jrudkis' 5:19 PM comment. Thanks for your consideration.

So, Turbulence, you basically make stuff up and argue that if Obama did whatever you dreamed, he'd pro-torture? Go for it, buddy - I'm not going to argue with your fantasy world.

Are we now permitted to use the word Zeitgeist to describe the synchronicity of Egyptian, Libyan, Bahraini, Saudi, Iranian and American government torture methods.

Or is it kismet in the air.

If I'm not mistaken, my taxpayer dollars are being stolen from me to pay for all current and future health care costs and the pensions of the government employees who are ordering and carrying out the torture of Bradley Manning.

These brave American specimens do work twelve months a year unlike the lout, leechy teachers in the Wisconsin school system who are accused of torturing and maiming the helpless taxpayers and are receiving their just desserts.

But couldn't we cut the Manning torturers pay and benefits to improve productivity and reduce overhead, you know, do more torture for less?

I wonder if these "Marines"* would douse the flames when Bradley Manning bursts into fire?

Firefighters in New Jersey probably would, but they are described as selfish for expecting a pretty good return on their labor.

The Zeitgeistian similarities in the U.S. I sense are between the period just prior to 1861-1865 and now.


*When these specimens who are carrying out this treatment of Manning leave the "service", are they going hire themselves out as private (low pay, no benefits) security guards to prevent teachers from entering Republican statehouses?

So, Turbulence, you basically make stuff up and argue that if Obama did whatever you dreamed, he'd pro-torture? Go for it, buddy - I'm not going to argue with your fantasy world.

Ummm...what? What exactly did I make up?

I have no idea what you're talking about.

Boil those frogs before they can set themselves on fire:

Hmmm....a violation of Kermit's Law. Darn. Back to the drawing boards.

hairshirthedonist: jrudkis assumes that Obama needs to examine Greenwald's and Manning's lawyer's accusations, hear arguments from the people making the decisions about Manning's treatment, find out the particular facts regarding Manning's treatment, and determine that Manning's treatment is either lawful or unlawful. Then he has to order that Manning be treated in a particular way.

But isn't that what the Article 138 hearing is for? In other words, Obama is supposed to be the Commander-in-Chief, dealing with the economy, the two wars, the health care legislation implementation, the terrorist threat, the environment, the Republican assault on workers' rights, the Tunisian, Egyptian, Libyan, etc., revolutions, etc., and the full-time job of being the Quantico base commander? Sorry, but I don't think he needs to do that. Of course, he can issue a general policy statement that rules need to be followed, procedures need to be adhered to, torture isn't tolerated, people need to be treated humanely, etc. - but there are administrative proceedings to ensure that those things happen. He's not the one to do it.

An administrative proceeding apparently did happen under Article 138. Manning lost. Unfortunate and maybe appealable. That's the way it works. If you were able to do a little tour of the court system, and look at individual trials across the country, you'd be shocked, I mean Shocked! at how many of the judges' rulings you'd disagree with. Is Obama supposed to do that tour in all federal trials and make a statement regarding every one? No. Our system is that Manning goes through the motions, the trial, the appeal. Sorry - due process. It sucks, doesn't it?

sapient,

I'm not a military lawyer or any other kind. When I think of "undue command influence," (and sometimes I go all day without thinking about it at all) I think in terms of a superior officer doing or saying things that will influence the outcome of a case. So a general or admiral would be guilty of undue command influence if he made statements that would affect the behavior of the military lawyers involved in a case or the courtmartial board hearing it. If the general says, "X is guilty as hell," the colonel on the board might well be influenced.

I don't see how this extends to the treatment of prisoners. To say, "We will treat prisoners in a humane and decent fashion," is not to offer any opinion on guilt or innocence, or appropriate punishment in the event of conviction. It goes only to the treatment of prisoners. To exercise authority to see to it that humane standards are followed is no more or less than acting in accordance with that stated policy. I see no reason why doing so ought to affect the behavior of anyone involved in the case.

How is 'some torture is OK' meaningfully different from 'all torture is OK'?

Really. Seriously. I am not trying for laughs. I would like to know.

envy, I'm not sure why Manning would be required to be located on the East Coast, as opposed to anywhere else in the US -- I don't have a sense that putting him at Quantico was done so that he would be available to anyone in particular. Is it common for one branch of service to drop its prisoners-awaiting-court-martial into another branch's brig?

A pretrial's unit retains certain responsibilities for them, and hence it is normal for pretrials to be kept geographically accessible to the unit. Manning was stationed in Ft. Drum, so that they would send him to Quantico rather than the DB in Kansas does not astonish me. I'm not saying there isn't a political element involved here, I'm just saying it's probably not the only thing in play.

As to your question regarding confinement of pretrials, they're actually usually kept in the custody of their units. If they're considered a risk (flight or violence), they'll get confinement. If that means dropping them in a joint service facility that's administered by another service, well, it is what it is. Granted, should they be found guilty, they're more than likely find their way into one of their own service's facilities.

fiddler: I fear my comment about self-immolation may have caused you some concern. If so, my apologies: in no way did I mean to say or imply I was thinking of doing such a thing, only that it was likely to take something that extreme to get the country's attention.

My disgust and despair at my government is quite real, but I'm not about to destroy myself or anyone/anything else over it.

"I don't see how this extends to the treatment of prisoners. To say, "We will treat prisoners in a humane and decent fashion," is not to offer any opinion on guilt or innocence, or appropriate punishment in the event of conviction."

If the brig's rules are, "no pillows for people on suicide watch" and the President says, c'mon, give the guy a pillow! Isn't that undue command influence? If the brig's policy is: "no underwear for people who intimate that they're going to hang themselves with their underwear" and the President says, "C'mon, give the guy his underpants!", isn't that undue command influence? It's a matter of whether Quantico really has those policies, whether the policies are being followed, whether exceptions are made for a particular prisoner, etc. All we have to go on is Manning's attorney's arguments (one side of the story), and Quantico's insistence that procedures are being followed (the other side). Manning just had a proceeding (Article 138) before a judicial officer and lost. Do people believe that the judicial officer was bought, or otherwise corrupted? Do people here not believe that the UCMJ offers fair procedural protections? Then write your Congressman and fight for the UCMJ to be changed!

Obama can't be a circuit rider and find out which jails are treating which prisoners badly and pontificate and rant. He's got other stuff to do.

Turb, he's referring to your hypothetical about an American torturing a prisoner with electricity. No need for hypotheticals, of course. We can talk about the fact that the US tortured people to death--

link

Fortunately, that's all in the past now. No need to worry ourselves with investigations and so forth.

sapient, when you get a chance, I'd appreciate it if you would explain what exactly I made up.

By the way, from today's NYT:

Prosecutors asked a federal judge on Monday night to order Jared L. Loughner, the suspect in the Tucson shooting spree, to undergo psychiatric testing to determine if he is competent to stand trial.

“The defendant’s online postings are indicative of an individual who may have mental issues,” prosecutors said of Mr. Loughner, who was indicted last week on 49 felony counts, including murder and attempted murder.

Judy Clarke, Mr. Loughner’s lawyer, asked for a delay in the start of the trial until January 2013, because of the complexity of the issues involved; Judge Larry A. Burns of Federal District Court had tentatively set the trial for September.

Neither Loughner nor Manning has been tried. In both cases, a probable cause determination has been made regarding detention. in both cases, a psychiatric evaluation has been requested. (In Bradley Manning's case, I believe the request was originally made by his own attorney.)

Note that the arrest in the Loughner case was January 8, 2011, and the case won't come to trial until 2013. Right now, he's in solitary confinement. He was on suicide watch, but I don't know whether that's still the case or not. He's not been tried (obviously). I don't think he's been arraigned. Who's complaining? Anyone?

Thanks, sapient. (Now I'm interested in jrudkis' response to your response.)

Is that some sort of conservative parody/spoof site bc?

The first time I heard of Babbin was re this issue and his debate with Greenwald. So I just googled and linked to the first article I found that talked about this issue (IG). I didn't pick the site specifically.

Obama doesn't really know whether Manning is being treated unlawfully or not unless he is presented with evidence. All he knows is what's been reported, mostly by Glenn Greenwald and Manning's attorney - not exactly objective people. It certainly seems from their accounts that he is being treated badly.

this was kinda my point. We don't see the whole picture. I'm not backing Babbin's view per se. But I see his point. Just don't know if it's correct.

They aren't saying something due to "privacy." That could be complete hogwash. But it's at least hogwash that is being bought by the SJA. Hmmm. What can you do to harm yourself with just a pair of underwear that's too embarassing to reveal as a justification for making you lie naked with two blankets at night? I don't know.

One other thought: It would look bad, really bad, if he died on the Marine's watch. I can see erring on the side of caution. From the Article 138 complaint: 1) he was suicidal, 2) he's been repeatedly and validly on a POI watch. I can see disagreeing with a psych eval in these circumstances. This, of course, assumes there is some connection between the conditions and suicide/injury.

jrudkis assumes that Obama needs to examine Greenwald's and Manning's lawyer's accusations, hear arguments from the people making the decisions about Manning's treatment, find out the particular facts regarding Manning's treatment, and determine that Manning's treatment is either lawful or unlawful. Then he has to order that Manning be treated in a particular way.

I do not assume anything like that. I am saying that undue command influence is not an issue when it comes to ensuring prisoners or a particular prisoner is treated in accordance with law. Whether Obama should involve himself is a different issue. All I am saying is that he can.

Turbulence, i was referring to your hypothetical (made up) civil defendant who'd been kidnapped by federal officers and had his genitals wired to a car battery. That wasn't made up? I asked you for a link to the case, and you said it was a "hypothetical." In my mind, "hypothetical" means "made up" for the purposes of argument.

Donald Johnson - There was real, horrible, shameful torture that occurred during the Bush regime, torture that ideally should have been prosecuted. I'm disappointed too that it wasn't. Unlike you, I understan why it wasn't. Since the people are so fond of hypotheticals, would you mind just hypothetically pondering the future of a torture prosecution that Eric Holder might have tried to bring against Bush administration people?

Please include in your hypo: potential defendants (would it be Bush, Cheney, CIA officials, etc. - please run the gamut), discuss potential reaction by Congress (including cutting off of funding for prosecutions, etc., in addition to collateral political punishment on unrelated issues such as healthcare, etc.), and probable outcome in the courts (including predicting the eventual Supreme Court opinion and the precedent set thereby). Then calculate the fiscal cost and attention devoted to this losing battle as compared to what might have been accomplished without its taking place. Finally, assess the popular opinion of the value of those prosecutions as compared to the value of the things he accomplished: the stimulus, healthcare, 2 supreme court appointments, Lily Ledbetter Fair Pay act, repeal of don't ask, don't tell; public lands bill, credit card reform, ethics in government; etc. But none of that stuff matters as much as losing a prosecutorial battle against the prior administration.

But sure. I would have liked to see them go to jai - in that hypothetical universe that you and Turbulence inhabit.

Turbulence, i was referring to your hypothetical (made up) civil defendant who'd been kidnapped by federal officers and had his genitals wired to a car battery. That wasn't made up? I asked you for a link to the case, and you said it was a "hypothetical." In my mind, "hypothetical" means "made up" for the purposes of argument.

Ah, I see. If you don't want to answer my hypothetical question, let me ask you a very concrete question: why has the Obama administration refused to settle with Maher Arar?

Both the Syrian government that was torturing him and the Canadian government have concluded that he is completely innocent. The US State Dept has cited Syria for torturing prisoners for years.

(1) Do you sincerely believe that Arar was not tortured?

(2) Do you sincerely believe that he was guilty of something?

(3) Do you have any evidence at all to support your fantastic theory that the DOJ is trying to set some sort of weird precedent by blocking the case at every opportunity?

I really want to know: what possible reason could the Obama administration have for doing anything but just settling with him and giving him cash?

Finally, would you mind answering the question I raised in an earlier comment: Are you aware of any cases where someone has been tortured by the US government and won a non-trivial monetary award in court or received a non-trivial monetary settlement outside of court? I trust that question is sufficiently concrete....

CaseyL, thank you for the reassurance. I have learned to take such comments seriously; I am very glad yours was metaphorical rather than literal.

I just don't get it. If the President of the United States (supposedly The Most Powerful Person In The World, as we're told) can't stop an instance of blatant mistreatment verging on - if not tantamount to - torture by his own military, then what's the point of being president?

And why are so many people *here* apparently content with this state of things? (I know why they are out there; I just thought we were better than that.)

"why has the Obama administration refused to settle with Maher Arar?"

Maher Arar lost his case before Obama took office. Although the case was reheard a year later (and affirmed), Obama's Justice Department, not having the power of the purse, was not able to hand out money to a losing defendant.

My opinion of the Arar case is irrelevant. The Executive Department has no authority to hand out money to people who have no case (since the case was decided - against Arar - already by a court). Congress has the power to appropriate money, and I know of no fund that it's created where Obama can hand out money to losing defendants - even ones who are worthy. In fact, people can't even bring a lawsuit against the government unless sovereign immunity is waived BY CONGRESS in a statute. It's really unfortunate how the self-styled public policy experts around here know so little about how government works.

dr. ngo - Is it possible that reality is sometimes different than what "we're told"? And is it possible that the president might want to do some good things without being able to do all good things?

correction to 10:56 comment: meant "losing plaintiff" not "losing defendant".

And why are so many people *here* apparently content with this state of things?

Doc, I'm with you. I don't understand it either. There used to be a time when the defense that "(some someone) made the trains run on time" was subjected to appropriately cruel derision as a really unsupportable argument.

Good thing Gandhi never became Prime Minister I guess, since he, too, would undoubtedly have succummed like a slowly boiled frog to the pragmatic need to countenance some justifiable amount of evil.

The Greater Good is, after all, a never ending source of comfort. More comforting still this principle cannot, by definition, apply to one's political opponents.

And thus refusing to make the perfect the enemy of the good is....well....perfect.

any excuse for torture is by default an act of complicity, whether direct or indirect.

legalese is merely a fine way to excuse torture, just more of the same BS.

holding someone accountable for torture is more than just semantics or legal theatrics. those who defend torture are definitely not worth any respect, any respect at all.

to say the President can't do whatever he dare well choses is quite simplistic and naive. we all make choices for whatever reasons we have. that Obama willingly chooses, as POTUS, to allow this torture of Manning to continue is obvious by his actions, or lack thereof.

all the legal BS wont hide the fact of Obama ownership/responsibility for allowing this abuse continuing. didn't stop Bush at all. like Obama is "ethical" compared to Bush, lol. don't even go there. lol

if you want to argue about legal technicalities over human rights, i wouldn't want to depend on you for help, or anything else for that matter. some things are simple and simply seen. other things are quite complex and not so simply dealt with.

Torture is simple and not easily obfuscated like some of the answers i see here. Outrage is not amenable to fancy footwork.

don't know who you are, but reading your fancy footwork/words does not bode well for my impression of you, as you and i have no values we apparently share. so, it's not like any of this matters , other than both of us being humans and supposedly Americans as well.

Torture is not a human value in my book of values. correct me if i am wrong, i get the impression from your words you are dancing around with some fancy legalese to explain your point of view. which i surmise is a defense of inaction on the part of Obama as POTUS to stop this "torture of Manning" on principle of law rather than humanity.

i hope i read this flow of conversations wrong, cause that is the impression i get. i do hope i am wrong. two wrongs never make a right. at least in my book.

intelligence is supposed to be used for good, in my book, and not for evil, otherwise the monkeys are doing a bang up job of being much smarter than humans. or maybe we have just highlighted our devolution away from homo sapiens to some animal less evolved.

Is it possible Obama is condoning torture?

Hell, yes.

Is it possible some people at ObWi are OK with that?

Sadly, yes.

All manner of things are possible . . .

sapient asked:

Please include in your hypo: potential defendants (would it be Bush, Cheney, CIA officials, etc. - please run the gamut), discuss potential reaction by Congress (including cutting off of funding for prosecutions, etc., in addition to collateral political punishment on unrelated issues such as healthcare, etc.), and probable outcome in the courts (including predicting the eventual Supreme Court opinion and the precedent set thereby).
I'll bite.

Bush, Cheney, Rumsfeld. The buck stops with them.

The assumption that the most likely reaction by Congress would be obstruction, delay, and revenge is IMHO premature capitulation. It reflects a profound belief that Americans have no moral center and couldn't find one if we tried.

The only way to bring war crimes, torture, and treason accusations home to roost is to first, have Serious People talk about it Seriously. You have to change the zeitgeist, *then* you bring the case. You only get a Truth and Reconciliation Commission *after* the searing national trauma.

Now, the idea of changing the zeitgeist is pretty enormous -- but (a) Obama already changed the boundary of what Americans thought was possible, he *has* the technology to do this, tool and (b) American acceptance of torture is horrifically widespread, but it's not all that deep, it hasn't been in place for decades.

The fact is, absent major sunlight and major prosecutions, I must assume that the Obama Administration is continuing Bush Admin policies: torture, kidnapping, murder. Bush already *proved* that the statement "the United States does not torture" is worthless; Obama making it himself doesn't make it true, it makes him just another liar.

My best-case scenario? Cheney is convicted and turns off his battery rather than do time. Bush goes to Paraguay and never comes back, not even for his parents' funerals. Rumsfeld goes to Spandau for a few years.

It would IMHO be better to have done that in the first 2 years of this Administration than get a health care bill through, bitter though the tradeoff would have been. At least I wouldn't have to face the fact that we have already meanly lost the last, best hope of earth.

Sorry, but I don't think he needs to do that.

"needs to do that" != "cannot do that" != "should not do that".

I don't think you've answered the question, sapient. Not that I'm demanding an answer; just noting that you looked as if you were attempting to answer the question, but didn't. "I don't think he needs to do that" is an opinion, not a fact. "needs to" is inherently subjective. Maybe you don't need him to do that, and maybe the brig commander doesn't need him to do that, but maybe Bradley Manning does.

Just to root this rebar in some concrete, let's talk about what you think undue command influence is, actually. Here's a nice (although possibly incorrect) synopsis to get the discussion kicked off:

Unlawful Command Influence (UCI) has frequently been called the "mortal enemy of military justice." UCI occurs when senior personnel, wittingly or unwittingly, have acted to influence court members, witnesses, or others participating in military justice cases. Such unlawful influence not only jeopardizes the validity of the judicial process, it undermines the morale of military members, their respect for the chain of command, and public confidence in the military.

While some types of influence are unlawful and prohibited by the Uniform Code of Military Justice (UCMJ), other types of influence are lawful, proper, and in certain circumstances a necessary part of leadership.

If this is correct, Obama's intervention to make the custody of Manning compliant with whatever norms exist for military custody awaiting trial (and, realistically: is it really anyone's point that Manning's treatment is anywhere near the usual?) doesn't constitute unlawful command influence. He's not attempting to affect the outcome of the trial (if this were a civilian case, the odds of getting a favorable-to-the-government outcome would actually be increased by removing sources of prisoner abuse), and he's not attempting to influence the punishment meted out.

So: 'splain, please.

My hypothetical is that Obama launches a serious investigation into everything that happened with regard to torture, rendition, and other possible crimes. Where it all leads is determined by what the investigators discover. Whether it results in prosecutions is a judgment call, I suppose.

I didn't and don't expect it, not because I think Obama is this person who'd like to do this if he could but is constrained by The Evil Republicans, but because I don't think Western democracies in general have a good record on prosecuting high ranking war criminals. War crimes trials are for the little people (and sometimes not even them, but if you need a scapegoat they're it) and for foreign dictators who are on our enemies list.

How to change our culture I don't know. But I expect anyone who makes it to the White House to see himself or herself as part of the club, not as someone who is going to prosecute fellow club members.

Nothing except fear of RWers saying (even more) bad things (more obstruction in congress is difficult to imagine) stands in the way of Obama officially apologizing to Arar (and maybe adding that he'd love to do more, if those guys with the inverted moral compass had not control of the purse). Actually Obama gets attacked constantly for any thing that he says even if he's quoting GOP talking points verbatim and approvingly, so the political damage of an apology would drown in the sea of current 'normalcy'. Or shorter: Obama is attacked daily for apologizing too much. What difference would an actual apology make?
I think that Obama is either delusional about what he can get out of the current helmsbeings of the Right by not talking turkey or he is a coward or (still not fully believing it) he actually agrees and just pretends not to.

While reading economics and political science in grad school, I ran across the concept of Pareto optimality (named for economist/sociologist Vilfredo Pareto). Simply put, an action is Pareto optimal when it increases the wellbeing of the whole group without harming anyone. This can be applied to laws made by Congress, departmental policy decisions, administrative systems, and so on. Examples might include the program to eliminate smallpox and similar efforts to increase public health at all levels, water quality testing to ensure safe drinking water, but smaller actions that have a large effect can also be evaluated with this criterion.

By this measure, the brig commander and everyone above her in rank all the way up the line are acting in a non-Pareto-optimal way by treating Manning badly. His suffering does not increase the common good; it sets a precedent that may be used against other servicepeople on active duty if they are captured during wartime. ("Why should we treat you according to the Geneva Conventions when your own government keeps your soldiers naked?") It also further harms the public (domestic and foreign) opinion of the military, the administration, and to some degree the whole country (some people are more generalists than others.)

If it's meant to squeeze info on Assange out of Manning, it's a failure; they've never met. Manning allegedly gave files to someone else, who then passed them on; there may have been other people in the chain between himself and Assange as well. If it's meant to show that the US has a no-whistleblower policy, it's a failure; it makes Obama a liar, which does not increase his stature in the international arena. And the thought of the entire weight of the U.S. Marine Corps brig at Quantico enclosing one skinny, naked and very young-looking private gives the mental impression of something between bullying and child abuse (yes, he's of age but he's got a baby face.)

None of this is ultimately beneficial to Obama, to the case, to the military, to the country.

How to change our culture I don't know. But I expect anyone who makes it to the White House to see himself or herself as part of the club, not as someone who is going to prosecute fellow club members.

Yes. This very well may be the truth, but that doesn't mean we have to like it. (Not that I think you do, Donald.) Nor does it mean that we have to accept it as immutable, thereby leaving the president somehow without fault for acting within this established framework.

I don't know how to change our culture, either. What I do know is that it won't change if no one tries to change it.

I hope that sapient is right about our courts being able to sort this out at some point - that due process, if our (Manning's, really) only recourse, will get it right eventually. Then again, there's that thing about justice delayed being something or other.

Feh.

Nothing except fear of RWers saying (even more) bad things (more obstruction in congress is difficult to imagine) stands in the way of Obama officially apologizing to Arar (and maybe adding that he'd love to do more, if those guys with the inverted moral compass had not control of the purse).

I'm going to be courteous and simply note that there's a great deal of speculation involved in the above quote.

Unless you have cites, that is.

That aside, closing ranks around the president because he's your guy, and because the opposition is only trying to bring him down, doesn't have that moral high ground feel to it. I'm speaking from experience, here.

fiddler:

By this measure, the brig commander and everyone above her in rank all the way up the line are acting in a non-Pareto-optimal way by treating Manning badly.
Well, in the first place, Pareto optimality is against everything the military (any military) stands for. Nothing is less Pareto-optimal than war.

slarti asked:

realistically: is it really anyone's point that Manning's treatment is anywhere near the usual?
Oh, I think there is *way* too much evidence that Manning's treatment is within usual&customary parameters for the way the US military treats prisoners they really don't like. Even if it's not all that "usual", I assume it falls within the general sense of what is usual or appropriate.

Otherwise it wouldn't be happening. This has been going on for *months*, for a very high-profile prisoner. Everybody up the chain of command knows, and on some gut level they all agree, or they'd put a stop to it. That's why there's a chain of command.

Oh, I think there is *way* too much evidence that Manning's treatment is within usual&customary parameters for the way the US military treats prisoners they really don't like.

I'd just like to try and separate out the "foreign combatant" classification from the people in-service who have been arrested and placed into the brig.

This might not be novel for the latter category; I really don't know. Certainly we have some confidence that it's not novel for the former category.

@DoctorScience 2:07 AM:
Bush, Cheney, Rumsfeld. The buck stops with them.

I am not certain this is entirely correct. Bush and Rumsfeld, yes -- they were in the chain of command which authorized torture and thus responsible.

But Cheney? Granted he probably argued in favor of it. Perhaps he even told someone (Rumsfled?) to do it. But was he in the chain of command? If Bush specifically delegated to him the authority to give orders in that area, then yes. Likewise if he (falsely) represented himself as having been given that authority.

But unless that happened, then legally his arguments in favor of torture had no more impact than if you or I had argued that it was an appropriate action. That is, Rumsfeld et al. had no responsibility to pay any attention to him.

Consider a parallel: If the Congress passes a law mandating that everybody buy health insurance (and either the President signs it or it is passed over his veto), then the Executive branch has a responsibility to enforce that law. But absent such a law, if one congressman argues that it should be done, there is no responsibility to enforce it -- quite the contrary. Even if he is Chairman of the committee responsible for healthcare bills.

P.S. Note that I'm not saying that Cheney isn't a scumbag for pushing for torture. Just that I'm not clear that he is legally accountable. But perhaps one of the lawyers here can explain how his doing so, from outside the chain of command, would be different from one of us doing so.

That aside, closing ranks around the president because he's your guy, and because the opposition is only trying to bring him down, doesn't have that moral high ground feel to it. I'm speaking from experience, here.

I don't think Hartmut is suggesting closing ranks around the president. He's suggesting that the president is being cowardly or dishonest, and that that's what's preventing the president from saying (or doing) what (some people think) needs to be said (or done), while also suggesting that the cowardice is misplaced, since whatever the president does will be met with criticism from the right.

Yes, there's speculation there (though it sounds generally right to me, for whatever that's worth). But it's more criticism, fairly harsh at that, than closing ranks AFAICT.

Nothing except fear of RWers saying (even more) bad things (more obstruction in congress is difficult to imagine) stands in the way of Obama officially apologizing to Arar (and maybe adding that he'd love to do more, if those guys with the inverted moral compass had not control of the purse).

I think this is wrong. Or at least, there is no evidence backing it up.

Huge entities like the US government generally don't like to admit wrongdoing. According to Jane Mayer's book, we know that hundreds if not thousands of people were kidnapped and tortured by our secret prison system and extraordinary renditions. So far as I know, not one of them has gotten any apology or settlement or even acknowledgment that they were brutalized. Obama's the most powerful man in the world. If his administration was interested in redressing this torture, they'd do...something, anything for even one of these cases. But so far, there's no evidence that his administration is interested in doing anything for them.

I think that if the administration was honest, they'd start working to leave the Convention on Torture. If sapient is right in insisting that current political environment makes it impossible to prosecute people who have publicly boasted about ordering torture, then I don't see how the US can remain a party to the treaty in good faith. Dropping the treaty would at least indicate honesty. And hey: there should be no political fallout to dropping the treaty; congressional republicans will probably love it.

I'd just like to try and separate out the "foreign combatant" classification from the people in-service who have been arrested and placed into the brig.

there might even be a separate category for people placed in the brig on suspicion of "aiding the enemy" / "giving intelligence to the enemy" during time of war. it's one thing to end up in the brig for disobeying an order, borderline (?) treason is another thing. not gonna get a lot of sympathy from anyone in the government after you've tried to bring it down.

and given the penalty (death) for the crimes he's charged with, he might very well be suicidal.

hairshirthedonist, yes, that's what I meant.
The three choices are delusion, cowardice, or outright evil/dishonesty.
Closing ranks around him would be wrong in all three cases. Support should be strictly conditional and declared as such. On the case we are talking about here 'The Left' should attack him as viciously as the right. Unfortunately the Right is far better at this (I feel tempted to quote Ford Prefect here from the third part of the Hitchhiker about why evil tends to win).

Slarti thinks foreign combatants are a different case; cleek thinks suspicion of "giving intelligence to the enemy in the time of war" makes Manning different.

But I really meant that Manning's treatment is not based on a legal category at all, but on "people we really don't like". Once you get in that category "Other", all legal restrictions are, at most, guidelines.

I can't remember if Mayer says so explicitly, but one of the consequences of the US terror apparatus is a pervasive sense that it can be applied to *anyone* who we (when we have power) really don't like. It's a government of men, not of laws -- and will be supported by anyone who's sure they're one of the Right Men, or can suck up to them enough.

Slarti thinks foreign combatants are a different case

It is, isn't it? I mean, isn't that why Gitmo was used as a place to house those classified as "illegal combatants"?

You might reject that distinction, but I don't think you can pretend that such a dividing line has not, in fact, been drawn.

BTW I'd be careful with constructs like "Slarti thinks" or "cleek thinks". I spoke to differences in treatment & location, not to what I believe about those differences.

I read cleek as speculating, which is not to say that he agrees with the reasoning.

OK, I wasn't being clear. ISTM "foreign combatants" are a different case de jure, but not de facto. The *law* says there are crucial differences between foreign and domestic, non-combatants and combatants, military and not.

What I see *in practice* is only a distinction between Other and Human. And though this distinction correlates with some objective qualities, it's really all about the emotions of the powerful (or those who desperately need to think of themselves as powerful).

Ok, let's take this tack: if we can assume Gitmo was a ploy to place prisoners outside the scope of any laws except those of executive preference, does the fact that Manning is at Quantico change the game in any real way, that you can see?

does the fact that Manning is at Quantico change the game in any real way, that you can see?

Unfortunately, it makes the situation *worse*. Manning being at Quantico *should*, as you imply, put him under the protection of the law that Gitmo was designed to elude. The fact that he is not being protected -- that executive preference still rules his day -- is a terrible proof that there *is* no protection of law.

I'd love to be persuaded that I'm wrong.

The fact that he is not being protected -- that executive preference still rules his day -- is a terrible proof that there *is* no protection of law

I agree with that, Doc, if the worst of what we've heard about Manning's treatment is true.

BTW "executive preference" isn't, to my knowledge, a term of art. I just made it up. It seemed to fit.

I learned about the concept of Pareto Optimization from my girlfriend who studied econ and worked at the NY Fed, and your definition sounded off to me, so I just looked it up on wikipedia. Based on the WP article, I think a system is Pareto optimal if no changes to the system can can be made without incurring >0 harm. A change that can be made to a system that incurs at least some benefit without incurring any harm increases Pareto efficiency. I am not sure that it's correct usage to call an action Pareto optimal when it merely increases Pareto efficiency. Optimal suggests that nothing more can be done; a Pareto efficient action can help a system approach Pareto optimization but it does not mean no further improvement is possible.

Having said that, IANAE(conomist) and it's a niggling point (and I do love niggling points!).

On topic, sapient's argument reminds me of some writer (it might've been Lithwick)who said that the defense of torture now boils down "We [the politicians and lawyers] were just giving orders!" Whereas the military and CIA cry "we were just following orders!" The second one is old news, but the Reverse Nuremberg is a neat trick.

I agree with Slarti. IANAL either, but I don't see how ensuring that the USCMJ is adhered to in a trial would constitute Unlawful Command Influence. To sapient's point that it wouldn't be fair to other prisoners, then hell, appoint a commission, because maybe every prisoner is being treated like an animal.

Julian, I'm not certain that optimality = optimization, where Pareto is concerned. I'm using the term that was used during grad school discussions in economics and political science classes, but that was a couple of decades ago and terminology does sometimes change over time. At the time we were discussing how changes in policy affected both demand curves and results in a population.

I also agree with Slarti and you.

Julian: "because maybe every prisoner is being treated like an animal."

Well, I think it's pretty common for prisoners to be treated like animals, and it's shameful. The issue of prison reform generally is a serious human rights issue, and one that I support wholeheartedly. I have no problem with the public (people commenting here, for example) focussing on particular prisoners such as Bradley Manning in pursing the idea that prisoners are at the mercy of a system that is often false in its promise of justice. What I condemn about the attitude of the people arguing on this blog is that Manning's treatment is evidence of Obama's "pro-torture" values. I also object to the false equivalence between Obama and Bush. But my throat is getting sore ranting about that (although I believe strongly that the same false equivalence is what brought Bush/Cheney into power in the first place and significantly adversely affected human rights, causing harm in a way that's very difficult to redress - and you're all at it again).

Slartibartfast: As to the "unlawful command influence" issue, I'll paste in a comment from Balloon Juice written by soonergrunt, who brought the issue to my attention:

It’s not torture. It’s humiliation, and it’s absolutely unnecsessary. The humiliation part comes from him having to stand at attention, naked in his cell at First Call, and await his clothing to be returned to him. The primary reason for this appears to be to dissuade him from continued complaint about the circumstances of his confinement. Only a forensic psychiatrist can make the determination that a detainee is a risk to himself or others. This situation appears to be engineered to justify extra restriction while evading the letter and spirit of the Naval Brig regulations.

The Convening Authority, MG Karl R. Horst, Commanding General of the U.S. Army Military District of Washington needs to get involved at this point. It is absolutely within his purview and within his responsibility. The President cannot. Seing as how the President’s position is inherently political, ANYTHING he does can be painted by either the Defense or the Trial Counsel as bowing to political pressure and exerting Unlawful Command Influence.

Soonergrunt's comments throughout the particular thread are worth a read. Although I don't have much experience in military criminal law (one case, not at all similar, a long time ago), I do know that it would be very easy for any case, civilian or military, to become tainted by an appearance of undue political influence. Perhaps, rather than echo Greenwald's "blame Obama" meme, people can write to this guy, Karl Horst, to see what he says. In fact, I wonder whether the crack journalists at Salon or FDL have considered interviewing this guy.

I'm afraid I have to walk away.

(Ironically, there are a variety of copies of the full story googleable, but given how strongly Ursula feels about that, and that they're all clearly illegal copies, I won't link.)

Quite a lot of reading, though.

My point (and I think it is Glenn's also) is that this case already seems tainted by the appearance of undue political influence because of the unusually punitive treatment Manning has received while in custody. The reason that this case reflects poorly on Obama w/r/t torture is that Manning's treatment is consonant with the degradation and torture practiced at Guantanamo and Abu Ghraib. Which Obama specifically disavowed and said we would no longer do.

Justifications advanced by DoD spokespeople for Manning's treatment (such as the risk of his suicide) seem flimsy to me, as noted by people who point out the existence of nonlethal underwear.

Soonergrunt asserts that "[the nudity]'s not torture," and I guess it isn't if this line in the CAT is the only relevant one:

"torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as ..."

I suppose I agree forced nudity in a properly climate-controlled cell won't cause severe mental pain or suffering, but I do think that 23 hour daily isolation would.

I understand you to mean Obama doesn't bear the immediate command authority over Manning's incarceration conditions. However, Manning's (mis)treatment at U.S. hands is part of a larger edifice of torture and violation of due process that was institutionalized under Bush and (to address your dispute of the continuity or equivalence between Bush and Obama) which does not seem to be going away. Accountability or charges for the personnel or politicians who authorized torture? No. Continuation of indefinite detention? Yes. Inhumane treatment (if not necessarily rising to the level of violent torture of mere suspects? Yes.

Sapient, which equivalence between Bush and Obama do you find false, in the context of the War On Terror?

"Firedoglake questions this"

Jane Hamsher, actually.

Great post, Fiddler. As usual, stuff I wanted to write about, posted some quick links to Facebook about last week, haven't had more time to do anything about. Excellent stuff!

On a very trivial note, save to science fiction collectors, or those who bought it at the time, rather than two years later, or since, the story New Dimensions 3, the fine anthology series by Robert Silverberg, a highly respected series well worth picking up.

The story has been anthologized many dozens of times, and is a classic.

Title: The Ones Who Walk Away from Omelas
Author: Ursula K. Le Guin
Year: 1973

Note: “The Ones Who Walk Away from Omelas” © 1975, 2003 by Ursula K. Le Guin. First appeared in New Dimensions 3, edited by Robert Silverberg (Doubleday: New York).
Awards:

* 1974 - The Ones Who Walk Away from Omelas Hugo Award, Best Short Story (Win)
* 1974 - The Ones Who Walk Away from Omelas Locus Poll Award, Best Short Fiction (Place: 6)

Publications:

* New Dimensions 3, (Oct 1973, ed. Robert Silverberg, publ. Nelson Doubleday / SFBC, #5889, $1.49, vii+212pp, hc, anth) Cover: Dennis Anderson - [VERIFIED]
* New Dimensions III, (Feb 1974, ed. Robert Silverberg, publ. Signet, 451-Q5805-095, $0.95, vii+183pp, pb, anth) Cover: Charles Moll - [VERIFIED]
* The Best Science Fiction of the Year #3, (Jul 1974, ed. Terry Carr, publ. Ballantine, 0-345-24063-4, $1.50, 365pp, pb, anth) Cover: Larry Sutton - [VERIFIED]
* The Wind's Twelve Quarters, (1975, Ursula K. Le Guin, publ. Harper & Row, 0-06-012562-4, $8.95, 303pp, hc, coll) Cover: Patricia Voehl
* The Wind's Twelve Quarters, (Mar 1976, Ursula K. Le Guin, publ. Harper & Row / SFBC, #1901, $2.49, 246pp, hc, coll) Cover: Patricia Voehl - [VERIFIED]
* The Best Science Fiction of the Year #3, (Jun 1976, ed. Terry Carr, publ. Ballantine, 0-345-25015-X, $1.95, xi+368pp, pb, anth) - [VERIFIED]
* The Wind's Twelve Quarters, (Oct 1976, Ursula K. Le Guin, publ. Bantam, 0-553-02907-X, $1.75, 278pp, pb, coll) - [VERIFIED]
* The Hugo Winners, Volume Three, (Aug 1977, ed. Isaac Asimov, publ. Doubleday, 0-385-12218-7, $12.50, xvi+603pp, hc, anth) Cover: Robert Jay Silverman
* The Hugo Winners, Volume Three, (Dec 1977, ed. Isaac Asimov, publ. Doubleday / SFBC, #1845, $4.50, xvi+603pp, hc, anth) Cover: Robert Jay Silverman - [VERIFIED]
* Le Livre d'Or de la Science-Fiction: Ursula Le Guin, (Dec 1977, Ursula Le Guin, publ. Presses Pocket (Presses Pocket - Science Fiction #5012), 2-266-00490-5, 381pp, pb, coll) Cover: C. Broutin - [VERIFIED]
* The Wind's Twelve Quarters, (1978, Ursula K. Le Guin, publ. Harper & Row, 0-06-012562-4, 303pp, hc, coll) Cover: Patricia Voehl - [VERIFIED]
* The Wind's Twelve Quarters Volume II, (1978, Ursula K. Le Guin, publ. Panther Granada, 0-586-04622-4, £0.75, 138pp, pb, coll) Cover: Peter Gudynas - [VERIFIED]
* The Hugo Winners, Volume Three, Part Three: 1974-1975, (1979, ed. Isaac Asimov, publ. Dennis Dobson, 209pp, hc, anth)
* Wolf's Complete Book of Terror, (Jun 1979, ed. Leonard Wolf, publ. Clarkson N. Potter, 0-517-53634-X, $14.95, xvi+473pp, hc, anth) Cover: Virgil Finlay
* Wolf's Complete Book of Terror, (Jun 1979, ed. Leonard Wolf, publ. Clarkson N. Potter, 0-517-53635-8, $8.95, xvi+473pp, tp, anth) Cover: Virgil Finlay - [VERIFIED]
* The Hugo Winners: Volume 3, Book 2, (Jul 1979, ed. Isaac Asimov, publ. Fawcett Crest, 0-449-24045-2, $1.95, 352pp, pb, anth) Cover: Atilla Hejja
* The Best of New Dimensions, (Nov 1979, ed. Robert Silverberg, publ. Pocket Books, 0-671-82976-9, $2.50, xiv+333pp, pb, anth) Cover: Richard Powers
* The Wind's Twelve Quarters, (Mar 1981, Ursula K. Le Guin, publ. Bantam, 0-553-20132-8, 277pp, pb, coll)
* The Fantasy Hall of Fame, (Oct 1983, ed. Robert Silverberg, Martin H. Greenberg, publ. Arbor House, 0-87795-521-2, $16.95, 431pp, hc, anth) Cover: E. T. Steadman
* The Wind's Twelve Quarters, (Sep 1987, Ursula K. Le Guin, publ. Perennial Library / Harper & Row, 0-06-091434-3, $6.95, 303pp, tp, coll)
* The Mammoth Book of Fantasy All-Time Greats, (Jun 1988, ed. Robert Silverberg, Martin H. Greenberg, publ. Robinson, 0-948164-71-9, £4.95, 431pp, tp, anth) Cover: Christos Achilleos - [VERIFIED]
* The Wind's Twelve Quarters, (Nov 1989, Ursula K. Le Guin, publ. Gollancz (VGSF Classics #37), 0-575-04607-4, £3.99, 303pp, pb, coll) Cover: Brian Waugh
* The Mammoth Book of Fantasy All-Time Greats, (Jul 1990, ed. Robert Silverberg, Martin H. Greenberg, publ. Robinson, 0-948164-71-9, £4.99, 431pp, tp, anth) Cover: Christos Achilleos
* The Wind's Twelve Quarters, (1991, Ursula K. Le Guin, publ. Perennial Library / Harper & Row, 0-06-091434-3, $10.00, 303pp, tp, coll)
* The Wind's Twelve Quarters, (Apr 1991, Ursula K. Le Guin, publ. HarperPaperbacks, 0-06-100162-7, $4.50, 382pp, pb, coll) Cover: Danilo Ducak
* The Lathe of Heaven / The Dispossessed / The Wind's Twelve Quarters, (Jun 1991, Ursula K. Le Guin, publ. BOMC, N/A, $17.95, 848pp, hc, omni) Cover: David Shannon
* The Lathe of Heaven / The Dispossessed / The Wind's Twelve Quarters, (Feb 1992, Ursula K. Le Guin, publ. Book-of-the-Month Club, N/A, $11.95, 848pp, tp, omni) Cover: David Shannon
* Treasures of Fantasy, (Jun 1997, ed. Margaret Weis, Tracy Hickman, publ. HarperPrism, 0-06-105327-9, $14.00, 401pp, tp, anth) Cover: Paul Youll
* Mistresses of the Dark: 25 Macabre Tales by Master Storytellers, (1998, ed. Stefan Dziemianowicz, Denise Little, Robert Weinberg, publ. Barnes & Noble, 0-7607-1002-3, $9.98, xii+543pp, hc, anth) Cover: Tom McKeveny
* The Wind's Twelve Quarters, (Oct 2000, Ursula K. Le Guin, publ. Gollancz (SF Collectors' Edition), 0-575-07139-7, £9.99, xiv+303pp, tp, coll)
* Masterpieces: The Best Science Fiction of the Century, (Nov 2001, ed. Orson Scott Card, publ. Ace, 0-441-00864-X, $24.95, x+422pp, hc, anth)
* Masterpieces: The Best Science Fiction of the Century, (Dec 2001, ed. Orson Scott Card, publ. Ace / SFBC, #11613, $12.50, x+422pp, hc, anth)
* Great Fantasy, (2004, ed. Robert Silverberg, Martin H. Greenberg, publ. W. H. Smith, 1-84529-106-9, £4.99, 431pp, tp, anth) Cover: Julek Heller - [VERIFIED]
* Masterpieces: The Best Science Fiction of the Twentieth Century, (Mar 2004, ed. Orson Scott Card, publ. Ace, 0-441-01133-0, $14.00, 422pp, tp, anth)
* The Wind's Twelve Quarters, (Dec 2004, Ursula K. Le Guin, publ. Perennial / HarperCollins, 0-06-091434-3, $13.95, 303pp, tp, coll)
* American Short Stories, (Oct 2007, ed. Bert Hitchcock, Margaret Kouidis, publ. Pearson Longman, 0-321-48489-4, 768pp, tp, anth)
* The Secret History of Science Fiction, (Oct 2009, ed. James Patrick Kelly, John Kessel, publ. Tachyon Publications, 978-1-892391-93-3, $14.95, 380pp, tp, anth) Cover: Digital Vision Ltd. - [VERIFIED]
* Brave New Worlds: Dystopian Stories, (Jan 2011, ed. John Joseph Adams, publ. Night Shade Books, 978-1-59780-221-5, $15.99, 489pp, tp, anth)
* The Fantasy Hall of Fame, (date unknown, ed. Robert Silverberg, Martin H. Greenberg, publ. Arbor House, 0-87795-521-2, $16.95, 431pp, hc, anth) Cover: E. T. Steadman - [VERIFIED]
* The Wind's Twelve Quarters, (date unknown, Ursula K. Le Guin, publ. Bantam, 0-553-02907-X, $1.75, 278pp, pb, coll) Cover: Pauline Ellison - [VERIFIED]
* The Hugo Winners, Volume Three, (date unknown, ed. Isaac Asimov, publ. Doubleday / SFBC, #01845, $5.98, xvi+603pp, hc, anth) Cover: Robert Jay Silverman - [VERIFIED]
* The Wind's Twelve Quarters, (date unknown, Ursula K. Le Guin, publ. Bantam, 0-553-02907-X, $1.75, 277pp, pb, coll) Cover: Pauline Ellison - [VERIFIED]

Knowing this makes it a heck of a lot easier to find and read the classic story than mentioning only one of so many many many appearances.

Assuming one wants to do it legally, and not just click on one of the free sublinks from my first link.

I also have a slight personal interest, having worked on, for instance, The Science Fiction Hall of Fame, Vol III and IV, (which was made extra fun to sell by having the II turned into IIA and IIB, but let's not get into the weeds here, headache though it was), and having other personal connections to some of the books above.

For a change of pace, I'm hoping to do a skiffy and sciencey post sometime later today or tomorrow, but no promises. Busy like a bee....

Which I really should work on, and not give in to the major temptation to read comments here and start commenting back, drat it.

Two other quick points, though:
1) I meant to write that "Omelas" was first published in New Dimensions 3, which was where we all read it for years until prior republication, and:
2) Far more importantly, that solitary confinement is itself torture.

It’s not torture. It’s humiliation, and it’s absolutely unnecsessary.

That may very well be; I have no way of knowing.

To the extent that it's acceptable treatment of prisoners at Quantico (or, you know, anywhere else), that can be changed. To the extent that it's exceptionally abusive treatment of prisoners, that too can be changed.

It just depends on Obama's level of awareness of the situation, his level of concern, and possibly things that he (and few others) knows that he's not telling us.

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Whatnot


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