Obama’s Would-Be “Rule of Law” Counselor Calls Bradley Manning’s Treatment Unconstitutional
In Charlie Savage’s story from last year on the sidelining of Laurence Tribe as head of an “Access to Justice” program at DOJ, he reported that Tribe originally believed he would serve as counselor for “rule of law” issues in Obama’s Administration.
There was also concern over how his presence might play out internally, several administration officials said. Some officials feared that he might be unmanageable, intruding into all manner of policy areas and able to call on Mr. Obama as a trump card.
“He has an ego,” said Charles Fried, a former solicitor general in the Reagan administration and a fellow Harvard law professor. “He’s entitled to it. He’s earned it.”
Several friends and administration officials said Mr. Tribe had initially sought and believed he would be given a far broader title and assignment: counselor for “rule of law” issues, which would have come with a mandate to help shape matters of national security and foreign policy. That did not happen, but Mr. Tribe came to Washington anyway.
After less than a year in that position, Tribe left last December, citing medical issues.
Now, the guy Obama sidelined to make sure he didn’t impose too much rule of law on his Administration has strongly criticized Bradley Manning’s treatment, not only signing a letter condemning Manning’s treatment, but elaborating on why that treatment was unconstitutional.
[Tribe] told the Guardian he signed the letter because Manning appeared to have been treated in a way that “is not only shameful but unconstitutional” as he awaits court martial in Quantico marine base in Virginia.
The US soldier has been held in the military brig since last July, charged with multiple counts relating to the leaking of thousands of embassy cables and other secret documents to the WikiLeaks website.
Under the terms of his detention, he is kept in solitary confinement for 23 hours a day, checked every five minutes under a so-called “prevention of injury order” and stripped naked at night apart from a smock.
Tribe said the treatment was objectionable “in the way it violates his person and his liberty without due process of law and in the way it administers cruel and unusual punishment of a sort that cannot be constitutionally inflicted even upon someone convicted of terrible offences, not to mention someone merely accused of such offences”.
A pity. Back when Tribe was celebrating candidate Obama, he called him the best student he ever taught at Harvard Law and promised he would defend civil liberties and would not appoint justices who put executive power above rule of law.
Tribe said Americans’ civil liberties are hanging by a thread. “But it’s better to have a thread than to have the thread cut,” he said. “A Republican president would be in a position to cut that thread.”
[snip]
Tribe said that if Obama were to be elected, he would appoint justices “who share his view that the Constitution is a living document that has to be interpreted in light of evolving values of decency.”
“They would not be justices who fool themselves into thinking they know what the Constitution’s original meaning was, and they can apply it as if nothing has happened in the last 200 years,” Tribe said. “They would be justices who have a serious record of support for human rights and constitutional values, rather than justices who simply have shown their loyalty to executive power.”
[snip]
On a more personal note, Tribe called Obama the “best student I ever had” and the “most exciting research assistant.”
As to Justices Obama would appoint, Tribe has proven himself badly wrong about who would and would not make a good Justice.
But it appears that his belief that Obama would support the rule of law was a far greater misjudgment.
If this is the same letter, one of Obama’s law profs signed the letter, also, too. Yes, meaning a prof that the President had at Harvard law.
As the post notes, Tribe is that professor. I just think the other connection–that Tribe thought he could bring rule of law back in O’s admin–more important.
It was Larry Tribe versus Tom Daschle, Rahm Emanuel, David Plouffe, Hillary Clinton, and all the rest of the Third Way crowd so worshiped by all the Serious People in the Beltway and the NYT corner offices.
Tribe didn’t stand a chance.
I never would have believed someone who could make it all the way to the presidency could turn out to be so pliable. What a disappointment. And of course the Republicans attacked him as a rabid socialist anyway. From that point of view, he might as well have been the radical they portrayed. Limbaugh couldn’t have displayed any more outrage if Obama had appointed Raul Castro as his chief of staff.
I thought there was another one, too. Because the place where I read it, the name certainly wasn’t Tribe(who I’d recognize). I’ll have to see if I can find it.
If Tribe thought Obama was his best student, then either Obama was really good at faking it, or Tribe is a terrible judge of people.
Seems Tribe made the same mistakes millions of Americans did about the Big O.
As I noted, he also thought Sotomayor would make a shitty justice and Kagan a great one.
Wrong on that count, too, IMO.
I think Mr. Obama is just very good at performing to the expectations of those he has most to gain from, and very good at hiding it. As for what he’s really like inside, even he may not know.
Make that those he thinks he has most to gain from, and I’ll cheer you on. (He ought to fear the voters; we’re the ones that can fire him.)
I don’t think “fearing the voters” is even a consideration in these times. If the MOTU want Obama re-elected, the votes will magically appear, ala Wisconsin/Prosser. If the MOTU are done with Obama, his Republican opponent will win.
I think we delude ourselves by thinking our vote is that last card we can play. They control who wins and who loses.
Sadly, I agree with you, medicinecat, and not with PJEvans. I don’t think we the people/voters have much of any “power” anymore in terms of how “our” federal govt is run, and we are certainly seeing the erosion of what little power “we voters” have at the state level vis Wisconsin.
Thanks v. much for this update. As someone who’s worked in the legal sphere all my life, I’m well aware of Lawrence Tribe. I confess my ignorance about Tribe leaving the Great Pretender’s Admin “quietly.” I must’ve missed that story – here at FDL (as I’m sure it was either not at all or hardly “reported” elsewhere).
Most citizens wouldn’t “get” much from learing about Tribe either leaving the O Admin OR from learning about his signing this letter. I think it’s vitally important to highlight this, and I find this post neither “gossipy” nor, I don’t know, irrelevant? or useless? Thanks for the links and keeping this info out front and center.
Nice catch. He’s in over his head.
A lot like THE Democratic cameleon, Billy Clinton, wouldn’t you say? Both grew up without a father figure & both became MASTER manipulators. Quelle surprise!
It seems fair to criticize Mr. Obama’s policies as more extreme, but Mr. Clinton, too, was an enabler of neo-liberal economic policies. The mirror disease Mr. Obama seems to suffer acutely from is the more harmful because it is so insidious.
The child may be father to the man and mother to the woman, but the ambitious student is not necessarily father to the politician.
In Mr. Obama’s case, my guess is that in Tribe’s class, he mirrored Tribe’s civil liberties priorities. On the campaign, he mirrored the aspiration common to millions who hated CheneyBush’s excesses and wanted a return to the rule of law. In the White House, he mirrors his most vocal GOP opponents, the strongest voices in the military, the most ardent neo-liberal economic advisers.
The lesson, I suppose, is never lay a chameleon on a plaid tartan and expect him to remain true blue, and don’t choose one as president.
OMG! That was an episode of House!
Patient had this weaird condition which made him copy whoever the last person he spoke to, or the most dominant person in the room if several people are there. It was called Mirror, mirror.
i don’t think using bradley manning in a headline
in order to “sell” a gossipy story, mostly about prof tribe, is very admirable journalism –
if journalism is a concern.
Well, Tribe’s views on Manning are included in the post, so it’s not misleading in that way. It’s not misleading like the stuff on TV, where they promote stories heavily that are worth maybe thirty seconds of coverage.
How is it “gossipy”? It was Tribe who signed the letter and then elaborated; the angle of the story was supplied by Tribe himself. That is not gossip.
Got your troll talking points so early? Hope you are getting benefits as well as a salary.
Tribe denouncing as unconstitutional Bradley Manning’s confinement is news, especially since Tribe resigned from the Obama administration because he was little more than academic and moral-legal eye candy for a lawless Presidency.
Oh, hey, and it turns out Mr. Tribe’s health seems to be okay huh? Whattayaknow.
Another quiet protest resignation, the kind that hides from those who most need to know why a professional leaves the employ of the nation’s top political leader. That ensures that the protest is meaningless, that it will enable rather than dispute the behavior it is meant to reject.
Cynthia Kouril and I went round and round on that topic on a post the other day about Eric Holder’s “resignation”, timed, like Mrs. Clinton’s, to take place between elections. In Holder’s case, it appears to be because the White House threw him under the bus over using federal courts instead of military commissions to try a small band of alleged terrorists. More generally, it treats him in practice like it would have treated Dawn Johnsen, in the same contemptuous way it treats the rule of law.
Nominally, the debate is pitched as being about avoiding “distractions” to the president’s “program” and his re-election. In reality, it’s about whether anyone but a small clique will influence government policy and whether the government will be run to serve the interests of anyone outside that small clique.
In general, such quiet resignations do not serve the public, they harm it. Here, they protect the president, his party, the resignor’s personal access, and his or her professional status and income. They abuse the public by denying it knowledge of a debate and of disappointments worth resigning over. Public service at the top has joined the great oxymoron’s, of which military intelligence is the prime example.
And thus the difference between resignation in protest and just resignation.
It’s also obvious that Tribe resigned for personal reasons, in that Obama was not keeping the implied or explicit promises he made to Tribe when asking him to join his administration. I imagine WH spin doctors emphasized to Tribe than his personal disappointments did not rise to the level of disagreements over public policy. Tribe would have recognized the spin, but left quietly anyway.
The nomination, but not appointment, of Dawn Johnsen falls into the same category as Tribe’s one-off role. Obama used Tribe’s short-term association with his administration as show for progressives.
That’s a crude irony amounting to poking a stick in their eye. Progressives are the least likely constituency to be put off with Obama’s all potatoes and no meat policies regarding resurrecting the rule of law, the DoJ and other federal regulatory agencies that were made moribund by eight years of CheneyBush misrule.
The way Elizabeth Warren has been treated also comes to mind.
And since we didn’t get Dawn Johnsen, we get Caroline Diane Krass at OLC, writing that she’s sure the President has the authority to use kinetic energy against Libya and those unfortunate enough to happen to live there.
Krass interned for Judge Patricia Wald, who might also like to sign some kind of letter…like Tribe did. Read about her at The Constitution Project.
For instance, Wald was part of the War Powers Initiative Committee at The Constitution Project, which wrote this:
DECIDING TO USE FORCE ABROAD: WAR POWERS in a System of CHECKS AND BALANCES [pdf]; The Constitution Project; 2005
She is also a member of the Liberty and Security Committee of The Constitution Project, which wrote the following:
Troubling Obama Administration Positions Threaten the Constitution [pdf]; Liberty and Security Committee of The Constitution Project; March 30, 2009
Yeah, E of H,
I don’t think that any of these folks resigned “in protest”, I think thye just resigned. You WANT them to resign in protest, but I’ve yet to see one in this admin.
Honestly, I think that charater assasintaion that happend to Paul O’Neil was an aobject lesson lost on no one. O’Neil was right, prescient even, and yet the inside the Beltway crowd did everthing intheir power to destroy his reputation.
It’s different than inthe days of Nixon when the press supported whistleblowers and people who resigned in protest. Back inthose days, it made you a hero, which meant a few years later Cy Vance could do it without fear of reputational disaster.
Since O’Neil, there is 1) no moral support, and 2) the danger that if you are publicly transformed into a nut or “disgruntled former employee” that you will undercut or even completly backfire the very message you were trying to send.
Fix that problem, and I think you will get your “protest resignations back”.
Very good points, and I tend to agree with you. Who knows if Tribe’s resignation signifies a “protest” resignation or not? It’s hard to say and ends up in the realm of speculation and tea leaf reading. I don’t know.
But we all certainly know how very much the Great Pretender HATES whistleblowers, and I am willing to go out on a limb and speculate that anyone who has “worked” for the O Admin must have some notion of the potential treatment that they might get if they blow the whistle… and I will speculate once again that their “treatment” would not be “pretty” or comfortable. And the “media” would have a field day making them “look bad.” Duly noted.
I dunno. Lederman and Kris resigned with enough complaint that it matches Comey’s resignation. That’s not akin to Olson, mind you. But even Goldsmith’s ouster seems to have had as much to do with their deliberately working around him and OLC after he said no one or two times.
A
is an inaudible explosion!
pjevans@12
perhaps you’re right,
but i was speaking of journalism.
oh come on, bmaz,
do i have to do your thinking for you?
first third of the story – tribe
middle third – tribe and manning, though with a distinctly “incidentally” aire.
final third -tribe again.
this is NOT a story about manning’s mistreatnent.
“gossipy”?
tribe is “analysed” by others whose views are reported to us.
“concern about how his prescence…”
“he has an ego said…”
“tribe has proven himself badly wrong …”
but these quotes are just that,
the whole thrust and tone is repetition of admin gossip.
A curious, constricted perspective.
Bollocks.
It’s a story about the fact that a guy who used to believe in Obama, and still worked for him after having been told his “Rule of Law” thing wasn’t going to happen, has now publicly split from him based on Manning’s treatment. He didn’t split when he left the WH (even though he may well have been there already); but he has now.
We chronicle these kinds of personal splits all the time: David Kris’, Dawn Johnsen, Greg Craig, etc. They’re important bc they’re a measure of how offensive O’s actions have become.
Not to mention the many parallels w/coverage of people who quit the Bush Admin (people like Ted Olson) over the same damn issues.
Yes, I could have written more about Bradley Manning’s treatment. But we’ve written more about that here than anyone else. For the sake of my audience I’m focusing on what is a new development here.
eofhuntingdon@17
“constricted” is, in this instance, pejorative, not descriptive,
and there is open the possibility that it is also devious in the way that court politics can be devious.
mine was a precise response to bmaz,
and, earlier, a precise criticism of ew’s post.
mine is not the only nor necessarily the right interpretation, but it is a legitimate and fair criticism.
I accept the position, but still disagree with it. That’s okay, we don’t all always have to agree around here.
You’re right, the comment, in typical e.e. cummings’ typeface, “do i have to do your thinking for you?” is ordinarily viewed as pejorative, although I’m sure it was said with tongue in cheek.
I don’t think the cited Guardian article fits your description; neither does the Savage article.
Pilkington is framing the Manning debate for an English and global readership. He personalizes it, as reporters are wont to do, by making it about a protest between hundreds of famous legal scholars, including Tribe, the president’s former tutor, and the president they once admired but no longer do. That’s a sentiment shared by many Guardian readers and the general public in England.
I agree with the observation that Pilkington’s piece it is less about Manning individually than it is about the growth of mainstream protest over his abusive treatment, protest the president ought to take more seriously than if it were just from DFH bloggers or Guardian reporters. Such treatment in the UK and elsewhere in the EU, home to most of the Guardian’s readers, would more likely to be regarded as both inexplicable and criminal.
Savage’s piece, of course, is specifically about Tribe and, sotto voce, about how poorly he’s been used by a president now famous for claiming to respect the rule of law while going out of his way to adopt CheneyBush policies that disdain it.
How does Tribe feel about his prize pupil’s approving the groping of six-year olds?
emptywheel
Please cover the story billy p posted about TSA groping a SIX YEAR OLD. WE all know this is about conditioning our children to except strangers groping you and removing all our rights. This is an outrage and for years we have taught children to not let strangers touch you and now this. If we do not keep calling attention to this….it will become the norm. thanks
On Sunday I took a stroll through the Harvard Law School campus and came across a reference to this letter that professor Tribe, among others (although not Dershowitz, I see) signed. The letter was authored by Harvard Law Professor Benkler and Yale Law Professor Ackerman. Here’s an article about them
http://www.law.harvard.edu/news/2011/04/07_benkler-ackerman-private-mannings-humiliation.html
It includes a link (pdf) to Benkler’s upcoming law review article defending wikileaks as a journalistic enterprise.
http://benkler.org/Benkler_Wikileaks_current.pdf
According to a flier on a campus kiosk Professor Benkler will be giving a public talk about wikileaks at 4pm this Wednesday April 13, 2011 on the Harvard Law School campus (Austin Hall, East).
As a side/snide note, I spotted a flier looking for Harvard Law students to work on Obama’s reelection campaign.
Link to the event calendar. Harvard Prof. Benkler’s WikiLeaks talk this Wednesday 4/13/11 at 4pm
is entitled “A Free Irresponsible Press: Wikileaks and the Battle over the Soul of the Networked Fourth Estate”
http://www.law.harvard.edu/calendar/#/?i=1
This is a good piece and worth pondering.
Still, there is a lot more to this case which should be of concern. Maybe it’s too big for a single bite.
It seems incomprehensible that Pfc Manning could possibly have had access to all the stuff vomited up to WikiLeaks — or, for that matter, even a much smaller amount of it.
Access always requires a need to know, or at least it did during my Fed career ’70s – ’90s. What has changed, relaxed, to allow that not to be the case now?
Perhaps it’s more likely there are a number of other known players, who are shielded at this time. Then compensation in the form of immunity (or something close to that) will be granted in exchange for testimony. That way there will be only one actor, Manning, who will be subject to the consequences for all of them.
The scenario of Manning acting alone, or even with just one or two others, just doesn’t wash. The future consequences for Manning will be more significant than the smock and confinement conditions now.
What about the elephant in the dumpster? Timing and content of his knowledge.
December Wheeler dumpster…Manning…collateral video…Wheeler’s background and access…there are possible dots…Tribe resigns in December…Not suggesting Tribe had knowledge of or involved in of course, but stuff was whirling regarding WL, Manning, Wheeler, etc.
Well, yes.
Still this stuff is monitored constantly, has to be signed for, procedures are in place to detect suspicious or unusual activity. It goes on and on, or it used to. There are just too many entities which would be yanked in to closely scrutinize what happened, and there would not be a safe place for an elephant (or donkey) to hide as such in any dumpster.
I think now the urgent, overarching need in play is for impacted chains of command to protect themselves and limit their own damage. That would entail protecting careers and organizations — a formidable errand, no? So it’s job one, and a problem separate from damage to the nation caused by divulging the raw info, by itself.
In short, I think one single miscreant would be less damaging or embarrassing than a horde of them, no? I think that’s why we have what we see now. What do you think?
Circling the wagons.
Message from obama, So ?
I read the story of the letter in the UK’s Guardian-online and looked at NYTimes website, did I miss it? Beating a dead-horse here but was this letter reported yet in our national stenography-pool, er, sorry our national media? A free press is protecting us about as much as having a constitutional law scholar and Nobel Peace prize winner for President is!
I looked too and so far the letter from a couple of hundred prominent law professors condemning Manning’s treatment as immoral and unconstitutional has only been reported in the British papers — Guardian and the Telegraph.
I have no idea when it first appeared here:
Private Manning’s Humiliation; Bruce Ackerman and Yochai Benkler;New York Review of Books; 4/28/11
The operative word is former Counselor.
Thanks for this piece. With his stature, Tribe is always of interest imho. I am certainly interested in what he is saying here as well as a recap of the background.
$1 one vote is one thing.
(And it’s exactly opposite from what
Eleanor Roosevelt advocated–equality.)
But there’re also still laws against bribery.
There are also specially convened Party
conventions and violations of Oaths of Office.
Eugene McCarthy would have never split Hubert Humphrey’s
support (and elected Richard Nixon)had he come
to a meeting of the minds at Party headquarters.
Also, is now-you-see-it-now-you-don’t insurance fraud?
http://sites.google.com/site/evernewecon
Glenn Greenwald writes on this today, too:
Manning, Obama and U.S. moral leadership; Glenn Greenwald; 4/11/11
pdaly, I took the liberty of posting your Benkler info on Greenwald’s thread…hope you don’t mind.
That’s great. I hope more people learn about the lecture and more people learn about the number of law scholars condemning the Obama Administration’s treatment of Pfc Manning.
I’ve been reading the pdf of Benkler’s upcoming law review article on WikiLeaks.
Benkler has several citations of Glenn Greenwald. No doubt if Benkler reads Greenwald, he has heard of FDL.
Thanks!
Tribe does display a huge ego, but he is also right about a number of issues.
The bigger question is “Why has Obama changed his mind?” The answer is NOT likely some mental analysis or name calling.
I think Obama is the type of person who does what he thinks is right and best in any particular situation. So, why does he think this is best and right?
Also, when you get down to it, Tribe cites three aspects of Manning’s treatment.
1. solitary confinement–23 hours in cell each day
2. checked every 5 minutes
3. must sleep in smock each night
Since each of these things has been applied to many prisoners over many years, it is difficult to see how Tribe gets they are unconstitutional–unless he means there are several cases pending in the courts about each one and likely to succeed. I would guess each has been litigated a number of times already and not found to be unconstitutional.
Yes, it is agreed they are difficult conditions, mainly the first one. I don’t see how being checked every five minutes is all that difficult (unless it means being woken up every 5 minutes. But, someone looking in the window every 5 minutes doesn’t seem all that tough. Many patients in a hospital sleep in smocks every night with no damage to them.
That leaves solitary confinement. No question constitutional for a prisoner, but in this case, the question is for someone accused and not yet convicted.
On the other hand, maybe Tribe missed mentioning some items of confinement not covered in the article above.
So, why does Obama think this is the right thing to do?
ew@30
– you, and fdl, have indeed written more than any others i know, and in more meaningful depth, about manning’s mistreatment at the hands of dod
– it should go without saying that on your weblog you can write what you damn well please
– my comment began in my head as a quibble, nothing more, but it was written down an inarticulate quibble since i did not make clear i was criticizing the use of a headline to entice a reader, a common practice in print journalism that i detest. i am entirely confident you intended no such use since manipulation of readers is so far from your personal style and character.
so my quibble should have gone something like this: this is a story about larry tribe’s experiences with a politician/confidence man, not about tribe’s concerns about the treatment of manning.
it was useful for your readers, myself included, to learn of tribe’s objections to manning’s treatment.
Quibble aside….Manning is an important element and one that has been closely followed here. Certainly a fair presentation of something quite timely….
Torture and other kinds of grossly unconstitutional activities are always timely, and thus appropriate objects for journalistic reports.
Thanks…that’s why I was affirming the Manning lead…it’s very important for the reasons you say.
NP. I knew you were trying to make that point. For some reason I need to reformulate some statements in my own words.
There is a theory proposed by Bernard Suzanne (can be googled) that the entire body of Plato’s dialogues concern themselves specifically with the relationship between Socrates and his beautiful but errant pupil, Alcibiades. I find the theory powerful stuff, and certainly there must be echoes of this in the kind of struggles any teacher would have coming to terms with his own responsibilities as that student takes what he has learned and applies it against all that the teacher believes in.
We who voted for this man have a burden to bear that is similar. But if Plato could give birth to philosophy, perhaps there is a civil awareness that can be crafted out of our pygmalionism. We, together with Professor Tribe, made this man what he is. Can we now unmake him?
Reply to regan April 11th, 2011 at 7:52 am @ 48
The marine guard asks PFC Manmning every 5 minutes during the night if he is alright. He must answer or there are some kind of consequences, unknown to me
Are you saying he can sleep in 5 minute intervals….Can that be true? Cruel, yes, if so.
Obama is another sellout, be it regulation, Gitmo. Just another bought politician.
Arlene McCarthy – LBGT Activist
The letter is becoming known as the Ackerman/Benkler letter, after the names of its two main authors, Bruce Ackerman, Yale Law School, and Yochai Benkler, Harvard Law School. As of early yesterday, it had about 250 co-signatories, including Tribe. They are soliciting more signatures here, and have amended the letter at that same link, to correct a couple of inaccuracies in what has probably now gone out in print in the April 28th print edition of the NYRB.
For the record at emptywheel, here is the list as amended (295 co-signators) by Prof. Ackerman Sunday evening:
Excellent!! I especially like these sentences in the letter:
Like wow. Very impressive.
I’ve signed the Michael Whitney petition and called my Congresswoman and senators on this; hope others will do likewise.
I hope Bruce Ackerman keeps on adding legal scholars, academics and other people concerned with the rule of law to this impressive list.
Former Alaska US Sen. Mike Gravel is in Alaska this week, and I asked him to reinforce my (and co-signers’) request to current US Sen. Mark Begich, to investigate Manning’s treatment as part of his duties as a member of the Senate Armed services Committee.
Here’s my Saturday post, including Mike Gravel’s video plea to Sen. Begich.
I’ll be delivering a packet including the links to Mike’s appeal, to Begich’s office this afternoon.
Keep on this, friends.
Ah, this is good. I’ll see if any of my Congresscritters are on Armed Services.
Carnac the Magnificent holds an envelope to his turban and says, “Five to four”.
Yes, it is true.
It has been reported here at FDL and on Pfc Manning’s attorney’s site
http://www.armycourtmartialdefense.info/2010/12/typical-day-for-pfc-bradley-manning.html
That is completely no sleep at all; I had not heard that level of detail. How can that be allowed medically?
My question is how/why has his attorney not been more vocal in doing something about it
I don’t think Obama really cares much what Tribe thinks. Right now he is asking, “Who is John Galt?”