Dylan Ratigan, Law Professors and I All Agree: Obama Needs to Explain or End Manning’s Treatment

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On Friday, Dylan Ratigan and I had a podcast chat about the treatment of Bradley Manning. Among other things, we talked about the “Constitutional Law Professor” President’s rather bizarre response when DOD told him it was standard procedure to strip an Army man of his clothes because of a trumped up claim that his underwear was a terrible threat to him.

DYLAN: And what does that say to you about our President that he endorses such a ridiculous point of view?

MARCY: I mean for starters it says he’s giving the military way too much leeway. They said, “Well, this is standard operating procedure.” And as I pointed out today in my blog, what they’re doing to Manning, the forced nudity, goes right back to Gitmo and goes right back to the treatment they used with Abu Zubaydah. So him giving — he came in to office and on day 2 said, “We’re going to close Gitmo. We’re going to end these abusive techniques,” and yet when DOD came to him and said, well, you know, it’s all standard procedure to take away a man’s underwear. The President just said, “Oh, okay.”

That’s one of the things a bunch of (real, active) law professors had to say in their letter calling on Obama to explain or end the treatment of Bradley Manning.

The Administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates. Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate Wikileaks founder Julian Assange in a conspiracy, or both.

If Manning is guilty of a crime, let him be tried, convicted, and punished according to law. But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pre-trial punishment. As the State Department’s PJ Crowly put it recently, they are “counterproductive and stupid.” And yet Crowley has now been forced to resign for speaking the plain truth.

The Wikileaks disclosures have touched every corner of the world. Now the whole world watches America and observes what it does; not what it says.

President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as Commander in Chief meets fundamental standards of decency. He should not merely assert that Manning’s confinement is “appropriate and meet[s] our basic standards,” as he did recently. He should require the Pentagon publicly to document the grounds for its extraordinary actions –and immediately end those which cannot withstand the light of day.

Obama cannot be a leader on human rights by refusing to challenge a military that, for years, used forced nudity like they’re using with Manning as part of systemic abuse of alleged terrorists.

But that’s what he has been doing.

The Brothers Daley Cover Up Abuse of Suspects Again

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You may have noticed I snuck away for the weekend. Mr. EW and I decided to take the opportunity of Athenae’s book party to head to Chicago for a weekend. In spite of the fact that Athenae’s book was obviously timed to St. Paddy’s Day, in spite of the fact that I’ve been to Chicago for St. Paddy’s Day before, I somehow forgot there’d be thousands of drunk fake Irishmen in the streets from dawn to dusk.

Gaping at the green river is about as close as my Irish husband wanted to get to one of the legendary St. Patrick’s Day celebrations on earth. (He’s just jealous because Dublin’s celebration sucks shamrock by comparison.)

But I wasn’t entirely ignoring current events. One of the women in my hotel, up from Indiana for the weekend, told me she came up to see “our Mayor Daley” in the parade. “For the last time,” I thought, as I realized how this holiday is a bit of a send-off to the Mayor.

And so I was already thinking about the Daley empire when I read of brother Bill’s reasoned reflection before he determined State Department spokesperson PJ Crowley had to go.

While some White House officials knew of Crowley’s comments, White House chief of staff Bill Daley learned of them when ABC News asked that question of the president. Daley told White House officials of Crowley, “he’s done.”

Another Daley covers up abuse of suspects, I thought.

I was thinking of Richard M’s role in covering up the torture committed by Jon Burge and other Chicago cops.

Last Wednesday, IL Governor Pat Quinn signed a law outlawing the death penalty in Illinois. Next Wednesday, former Chicago Police Commander Jon Burge reports for a four and a half year prison sentence for lying about torturing one suspect–though credible evidence suggests he tortured at least 50 and possibly as many as 200 police suspects. Those are the latest chapters in the long exposure of the systematic torture of black suspects by Burge’s South Chicago detective team, and the wrongful conviction of many of those suspects based on tortured confessions.

And Richard M is in the middle of the scandal, largely because as Cook County’s State’s Attorney he pawned off evidence of torture rather than investigate and prosecute.

Daley was Cook County’s state’s attorney for seven years during the 1980s, and his office approved at least 55 felony murder charges against black males who claim they confessed only after they were beaten, suffocated, burned and electro-shocked by Burge and his detectives.”Many of our men, or sons, fathers, brothers are behind bars for crimes they did not commit,” said one demonstrator Friday.

As demonstrators protested outside City Hall, the mayor attempted to explain this 1982 letter from then-police superintendent Richard Brzeczek expressing concern about torture allegations to then state’s attorney Daley. The mayor said he read it and referred it to subordinates believing the police department had the ultimate responsibility to investigate office misconduct.

“It’s up to the Chicago Police Department. That responsibility lies within them,” Daley said.

“What did Daley do about it? Absolutely nothing. And what does the report say about that? Nothing,” Read more →

Not Only Won’t Obama Close Gitmo, He’s Now Relying on Gitmo’s SOPs

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As I have repeatedly pointed out, stripping detainees to “demonstrate the omnipotence of the captor” was introduced as a Standard Operating Procedure at Gitmo back in 2002 when they were preparing to torture Mohammed al-Qahtani. Abu Zubaydah’s torturers, like Bradley Manning’s jailers, call it being “God.”

That must be the standard procedure that President Obama was talking about when he gave this explanation when Jake Tapper asked him about PJ Crowley’s condemnation of Manning’s treatment.

With respect to Private Manning, I have actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards. They assure me that they are. I can’t go into details about some of their concerns, but some of this has to do with Private Manning’s safety as well. [my emphasis]

So not only won’t Obama close Gitmo, then, but he’s willing to rubber stamp the standards introduced there for use on American soil.

Update: Corrected the transcription.

PJ Crowley on Manning’s “Ridiculous, Counterproductive, and Stupid” Treatment

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As I noted earlier today, State Department Spokesperson PJ Crowley described Bradley Manning’s abuse as counterproductive and stupid at an event at MIT yesterday.

Ethan Zuckerman has a transcript of Crowley’s remarks.

Charlie deTar: There’s an elephant in the room during this discussion: Wikileaks. The US government is torturing a whistleblower in prison right now. How do we resolve a conversation about the future of new media in diplomacy with the government’s actions regarding Wikileaks?

PJC: “I spent 26 years in the air force. What is happening to Manning is ridiculous, counterproductive and stupid, and I don’t know why the DoD is doing it. Nevertheless, Manning is in the right place.” There are leaks everywhere in Washington – it’s a town that can’t keep a secret. But the scale is different. It was a colossal failure by the DoD to allow this mass of documents to be transported outside the network. Historically, someone has picked up a file of papers and passed it around – the information exposed is on one country or one subject. But this is a scale we’ve never seen before. If Julian Assange is right and we’re in an era where there are no secrets, do we expect that people will release Google’s search engine algorithms? The formula for Coca Cola? Some things are best kept secret. If we’re negotiating between the Israelis and the Palestinians, there will be compromises that are hard for each side to sell to their people – there’s a need for secrets.

Hey PJ? Your invocation of peace in Israel is admirable (though note Crowley appears to be confusing his damning leaks, since the exposure of the unreasonable concessions the Palestianian Authority gave Israel came from al-Jazeera, not WikiLeaks). But don’t you think we also have a right to know that our long-term intelligence partner in Egypt was offering up ways to cancel democratic elections in the same part of the world?

Since that report, Josh Rogin has gotten confirmation from Crowley that the reports are accurate.

Reached by The Cable, Crowley confirmed that he did in fact make the remarks.

“What I said was my personal opinion. It does not reflect an official USG policy position. I defer to the Department of Defense regarding the treatment of Bradley Manning,” Crowley told The Cable.

Finally, Jake Tapper asked Obama about Crowley’s comment. And the Commander in Chief’s response to being asked about abuse? Apparently DOD says abuse  is cool now.

Obama: “I have actually asked the Pentagon whether or not procedures on Manning meet basic standards, they assure me that they are.”

Of course they meet basic standards! The “God” standard that has been part of our torture regime for 9 years now.

Update: Fixed my reference to the Palestine Papers.

State Department’s Crowley Condemns Treatment of Bradley Manning: “Counterproductive and Stupid”

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Crowley (via wikipedia)

When PJ Crowley tweeted this the other day:

These are not #Twitter or #Wikileaks revolutions. They belong to the people, but technology can expand and accelerate the pace of change.

I was going to tweet back that he had to say that, given the necessity of maintaining the Administration party line on WikiLeaks. I’ve pointed out the difficult position our government’s crackdown on WikiLeaks has put Crowley in before, after all.

But sometimes the truth has a way of slipping out:

I just heard an extraordinary remark from State Department spokesman P.J. Crowley. He was speaking to a small audience at MIT on “the benefits of new media as it relates to foreign policy”, an event organised by the Center for Future Civic Media.

Around twenty of us were sitting around the table listening to his views on social media, the impact of the Twittersphere, the Arab uprisings, and so on, in a vast space-age conference room overlooking the Charles River and the Boston skyline. And then, inevitably, one young man said he wanted to address “the elephant in the room”. What did Crowley think, he asked, about Wikileaks? About the United States, in his words, “torturing a prisoner in a military brig”? Crowley didn’t stop to think. What’s being done to Bradley Manning by my colleagues at the Department of Defense “is ridiculous and counterproductive and stupid.”

Wow. Crowley has spent the last several months condemning the abuse of Middle Eastern dictators against their citizens. And now, in a room of twenty people, Crowley has condemned the abuse our own country commits.

I’ll be curious to see whether Crowley even disputed the assertion that Manning was being tortured.

Playing God with Bradley Manning

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Back in 2002, Gitmo’s Standard Operating Procedures advocated stripping detainees of clothing as a way of demonstrating the omnipotence of the captors.

In addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee.

With Abu Zubaydah–as Jane Mayer has written–they explicitly tied this to becoming his “God.”

… the CIA interrogators also announced they planned to become Zubaydah’s “God.” They reportedly took his clothing as punishment, and reduced his human interaction to a single daily visit in which they would say simply, “You know what I want,” and then leave.

That’s striking given that–according to Bradley Manning’s Article 138 complaint, written in his own voice–Commander James Averhart put Manning on suicide watch on January 18 to demonstrate that he was, for all practical purposes, God.

After being returned to my cell, I started to read a book. About 30 minutes later, the PCF Commander, CWO4 James Averhart, came to my cell. He asked me what had happened during my recreation call. As I tried to explain to him what had occurred, CWO4 Averhart stopped me and said “I am the commander” and that “no one could tell him what to do.” He also said that he was, for all practical purposes, “God.” I responded by saying “you still have to follow Brig procedures.” I also said “everyone has a boss that they have to answer to.” As soon as I said this, CWO4 Averhart ordered that I be placed in Suicide Risk Status.

Following Averhart’s order that Manning be labeled a suicide risk, he ordered guards to take his clothing.

He instructed the guards to enter my cell and take all my clothing. At first I tried to reason with CWO4 Averhart by telling him that I had been a model detainee and by asking him to just tell me what he wanted me to do and that I would do it. However, I gave up trying to reason with him once the guards entered my cell and ordered me to strip. Instead, I lowered my head and starting taking off my clothes.

Manning’s Article 138 complaint shows far more. It shows how the Brig Psychiatrist recommended at least 16 times between August 27 and January 21 that Manning be removed from Prevention of Injury watch. It shows that the day Manning was placed on suicide watch, there was a protest in support of him outside of Quantico. According to Manning, the guards harassed him, demanding he respond to every order with “Aye” rather than “Yes.” And except for that day (when he said “Yes” instead of “Aye” and then asked Averhart why that was happening to him), Manning was never deemed to present disciplinary problem.

Manning also describes the whole reason he is now being stripped every night: because he again asked why he is being treated this way.

On March 2, I was informed of your decision regarding my Article 138 complaint. Understandably frustrated by this decision after enduring over seven months of unduly harsh confinement conditions, I asked the Brig Operations Officer, MSG Papakie, what I needed to do in order to be downgraded from Maximum Custody and POI Status. MSG Papakie responded by telling me that there was nothing I could do to downgrade my detainee status and that the Brig simply considered me a risk of self-harm. Out of frustration, I responded that the POI restrictions were absurd and sarcastically told him if I really wanted to harm myself, that I could conceivably do so with the elastic waistband of my underwear or with my flip-flops.

The government torture canon makes it clear: their plan to break prisoners requires prisoners learn helplessness. A key part of that is–as Averhart himself explicitly described it–playing God.

It is clear the government’s program of abuse remains the same. This is the procedure they used on Abu Zubaydah. It is the procedure they used in Gitmo. They are now using it on an American citizen detained on American soil.

And surprisingly, they’re still describing their abuse in the very same term: God.

With David Kris Gone, Obama Rolls Out “New and Improved” Military Commissions

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I think I’ll do a series of posts over the next few days all starting with the phrase, “with David Kris gone,” showing how Obama has finally gone off the deep end (the “Dark Side”) in his War on Terror and the Constitution.

This edition has to do with Obama’s announcement that he’s in the business of Military Commissions, new and expanded.

From the beginning of my Administration, the United States has worked to bring terrorists to justice consistent with our commitment to protect the American people and uphold our values. Today, I am announcing several steps that broaden our ability to bring terrorists to justice, provide oversight for our actions, and ensure the humane treatment of detainees. I strongly believe that the American system of justice is a key part of our arsenal in the war against al Qaeda and its affiliates, and we will continue to draw on all aspects of our justice system – including Article III Courts – to ensure that our security and our values are strengthened. Going forward, all branches of government have a responsibility to come together to forge a strong and durable approach to defend our nation and the values that define who we are as a nation.

The new and improved Military Detention Regime has two parts.

First, the long-promised indefinite detention by fiat.

By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF), Public Law 107-40, and in order to ensure that military detention of individuals now held at the U.S. Naval Station, Guantánamo Bay, Cuba (Guantánamo), who were subject to the interagency review under section 4 of Executive Order 13492 of January 22, 2009, continues to be carefully evaluated and justified, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:

One detail of it that sticks out is the standard for continued detention:

Continued law of war detention is warranted for a detainee subject to the periodic review in section 3 of this order if it is necessary to protect against a significant threat to the security of the United States.

Note, this doesn’t appear to tie to any wrong-doing on the detainee’s part. “It” here appears to refer to “continued law of war detention,” suggesting that “it” may be necessary regardless of any threat posed by the detainee himself.

Also note that the standard “significant threat to the security of the United States” doesn’t invoke the war (ostensibly, the war against Afghanistan) itself. This seems very very wrong. It also seems designed to authorized the continued detention of the Yemeni detainees who we admit aren’t themselves a threat, but must be detained, our government says, because they come from a dangerous country.

The second part of the New and Improved Military Detention Regime is more and more military commissions.

The Secretary of Defense will issue an order rescinding his prior suspension on the swearing and referring of new charges in the military commissions. New charges in military commissions have been suspended since the President announced his review of detainee policy, shortly after taking office.

The Administration, working on a bipartisan basis with members of Congress, has successfully enacted key reforms, such as a ban on the use of statements taken as a result of cruel, inhuman or degrading treatment, and a better system for handling classified information. With these and other reforms, military commissions, along with prosecutions of suspected terrorists in civilian courts, are an available and important tool in combating international terrorists that fall within their jurisdiction while upholding the rule of law.

Mind you, the “ban” on using tortured statements is no such thing, as it comes with a nice loophole.

But it all makes for a nice announcement for the shiny new military detention regime.

Nine Years of Nudity in American Detention

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It’s just like old times!

… the CIA interrogators also announced they planned to become Zubaydah’s “God.” They reportedly took his clothing as punishment, and reduced his human interaction to a single daily visit in which they would say simply, “You know what I want,” and then leave.

Jane Mayer, The Dark Side

In addition to degradation of the detainee, stripping can be used to demonstrate the omnipotence of the captor or to debilitate the detainee.

—JTF-Gitmo SERE SOP, December 10, 2002

Establishing the baseline state is important to demonstrate to the HVD that he has no control over basic human needs. The baseline state also creates in the detainee a mindset in which he learns to perceive and value his personal welfare, comfort, and immediate needs more than the information he is protecting. The use of conditioning techniques do not generally bring immediate results; rather, it is the cumulative effect of these techniques, used over time and in combination with other interrogation techniques and intelligence exploitation methods, which achieve interrogation objectives. These conditioning techniques require little to no physical interaction between the detainee and the interrogator. The specific interrogation techniques are:

a. Nudity. The HVD’s clothes are taken and he remains nude until the interrogators provide clothes to him.

—CIA memo describing combined interrogation techniques, December 30, 2004

Nudity: This technique is used to cause psychological discomfort, particularly if a detainee, for cultural or other reasons, is especially modest. When the technique is employed, clothing can be rewarded as an instant reward for cooperation.

—OLC “Techniques” memo, May 10, 2005, withdrawn by Barack Obama

Removal of clothing is different from naked.

—Douglas Feith, Testimony before House Judiciary Committee, July 15, 2008

PFC Manning was inexplicably stripped of all clothing by the Quantico Brig. He remained in his cell, naked, for the next seven hours. At 5:00 a.m., the Brig sounded the wake-up call for the detainees. At this point, PFC Manning was forced to stand naked at the front of his cell.

—Report from David Coombs on treatment of PFC Bradley Manning, March 3, 2011

Newt’s Singeing Statement

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Newt Gingrich, in a role that was probably cast years ago, now calls on Obama to be impeached because he refuses to defend the Defense of Marriage Act in court.

Former House Speaker Newt Gingrich, who plans within two weeks to announce if he will run for president, said today that if President Obama doesn’t change his mind and order his Justice Department to enforce the Defense of Marriage Act, Republicans in Congress should strike back and even consider impeachment proceedings.

“I believe the House Republicans next week should pass a resolution instructing the president to enforce the law and to obey his own constitutional oath, and they should say if he fails to do so that they will zero out [defund] the office of attorney general and take other steps as necessary until the president agrees to do his job,” said Gingrich. “His job is to enforce the rule of law and for us to start replacing the rule of law with the rule of Obama is a very dangerous precedent.”

Mind you, Newt seems to misunderstand what’s going on. After all, Obama will continue to enforce DOMA. What he won’t do is defend a law he believes to be unconstitutional; but he’ll let a court decide whether he’s right or not.

Which makes what Obama did far far less abusive (in all senses of the word) than what George W Bush did with his long catalog of signing statements. Perhaps Bush’s most famous was his signing statement to the Detainee Treatment Act.

The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks. Further, in light of the principles enunciated by the Supreme Court of the United States in 2001 in Alexander v. Sandoval, and noting that the text and structure of Title X do not create a private right of action to enforce Title X, the executive branch shall construe Title X not to create a private right of action. Finally, given the decision of the Congress reflected in subsections 1005(e) and 1005(h) that the amendments made to section 2241 of title 28, United States Code, shall apply to past, present, and future actions, including applications for writs of habeas corpus, described in that section, and noting that section 1005 does not confer any constitutional right upon an alien detained abroad as an enemy combatant, the executive branch shall construe section 1005 to preclude the Federal courts from exercising subject matter jurisdiction over any existing or future action, including applications for writs of habeas corpus, described in section 1005. [my emphasis]

Not long after the DTA went into effect, Stephen Bradbury wrote his ridiculous Appendix M opinion allowing DOD to use any techniques they wanted to claim were included in that Appendix and later refused to share it with Congress.

But my personal favorite is the one he signed on the Defense Appropriation Bill in 2003, after Congress defunded data mining programs directed at Americans.

Sections 8082, 8091, 8117, and 8131 of the Act make clear that the classified annex accompanies but is not incorporated as a part of the Act, and therefore the classified annex does not meet the bicameralism and presentment requirements specified by the Constitution for the making of a law. Accordingly, the executive branch shall construe the classified annex references in sections 8082, 8091, 8117, and 8131 as advisory in effect. My Administration continues to discourage any efforts to enact secret law as part of defense funding legislation and encourages instead appropriate use of classified annexes to committee reports and joint statements of managers that accompany the final legislation.

As this timeline makes clear, it appears to have been an attempt to avoid having the data mining prohibition apply to the illegal wiretap program that was used, among other things, to wiretap protected conversations between defendants and their lawyers. Even after Jim Comey et al refused to reauthorize the program with its next approval (leading up to the hospital confrontation), Bush authorized it to continue anyway.

Of course, Newt didn’t make a peep when Bush issued signing statements followed by executive branch assertions of authority (his March 10, 2004 reauthorization of the illegal wiretap program and Bradbury’s memo) designed to thwart Congressional efforts to shut down specific programs.

But now that Obama has stepped back to allow the courts to decide whether a legally married gay man can extend his federal benefits to his spouse–even while continuing to enforce DOMA–Newt considers such executive branch tactics an impeachable offense.

Once again, torture and domestic surveillance are acceptable abuses of executive authority for Republicans. But a blowjob or a loving marriage requires impeachment.

George W Bush Won’t Share Stage with Someone Who Has Harmed US Interests

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Mark Knoller tweets:

A spokesman says former Pres George W Bush cancelled a speaking appearance tomorrow to avoid sharing stage with Wikileaks’ Julian Assange.

Bush/43 was invited to address the YPO Global Leadership Summit in Denver tomorrow, but cancelled when he learned Assange was too.

A spksmn says Bush/43 won’t share a stage “with a man who has willfully & repeatedly done great harm to the interests of the United States.”

Jeebus.

The Iraq War, by itself, has done far graver harm to the interests of the United States than all of the cables Julian Assange has leaked. And that’s before you consider allowing banksters to ruin our economy. And a whole slew of other things W did, like torture, that willfully hurt US interests.

It’s a wonder W can even share a stage with himself, if that’s his criteria.