The case of Private Bradley Manning, accused of being the source of Wikileaks’ massive outing of “secret” United States diplomatic information virtually disappeared from the mainstream media during the last few months. My Google search earlier this week produced just two articles in alternative newspapers that even mentioned his name during the past month. That changed today, however, because after 18 months in detention, a military court is holding a hearing to determine whether Bradley Manning should face a Court Martial.
I’m not sure how much coverage there will be because the court action (technically called an Article 32 hearing) is a procedural step that under normal circumstances would be accompanied by relatively little fanfare. However, Manning’s defense attorney’s request that President Obama testify at the hearing might generate increased media attention.
While this might appear at first blush to be foolish grandstanding by the defense, they have a plausible and, I believe, potent legal argument to back this request. The defense’s filing states: “Under the Uniform Code of Military Justice, a superior officer in the chain of command is prohibited from saying or doing anything that could influence any decision by a subordinate in how to handle a military justice matter, [yet Obama] made improper comments on April 21 2011 when he decided to comment on PFC Manning and his case. On that date [he stated] ‘We’re a nation of laws. We don’t let individuals make their own decisions about how the laws operate. He broke the law.’” Obama’s conclusion that Manning “broke the law” was captured on a cell phone camera and broadcast nationally.
President Obama is Commander in Chief of our Armed Forces. It is hard to imagine that his pronouncement of Bradley Manning’s guilt does not violate the language quoted above. However, it is a virtual certainty that the court will rule that Obama’s presence is not required, and, however absurd it may seem, it will also determine that whatever Obama said about this case will not unduly influence its outcome.
This is just a tiny unjust tremor in what has become a seismic catastrophe of human rights violations countenanced by our judicial system. Manning has already been subjected to far worse. He was held without charge for nine months in the brig at Quantico Marine Corps Base in Virginia, isolated for 23 hours day, and faced among other things, the Abu Ghraib style humiliation of being forced to strip and surrender his clothing nightly. It is unlikely that anyone will ever be called to account for violating his human rights. Whether at Guantanamo, Bagram or at the Brooklyn Detention Center, our government has been responsible for the hideous torment of hundreds, perhaps thousands, of prisoners for over a decade, yet our court system has failed to provide justice for any of them.
I can’t say I’m surprised by this inaction. After all, Jay Bybee, who co-authored the notorious memos condoning torture while he was a member of the Bush administration’s Justice Department, now sits as a Circuit Justice on the U.S. Ninth Circuit Court of Appeals. As far as I know, not a single Federal Judge has made even a whimper of complaint about this outrage. Bybee’s elevation, and the apparent acceptance by his colleagues of his fitness to sit in judgment, poses a very troubling question for me: at what point does a system become so corrupted that any participation in it becomes intolerable because that involvement serves to legitimize the institution?
On the one hand, I fantasize about progressive attorneys collectively refusing to participate in the American injustice system. I imagine them turning their backs on panels of Appellate and Supreme Court Justices, and declaring that the Justices, by their actions or failure to act, have forfeited their right to sit in judgment of anyone. On the other hand, such an outburst would amount to a self-indulgent abandonment of clients with a desperate need for staunch advocates.
I have the most profound respect for all the principled attorneys who continue the fight for human rights within a system that is stacked against them and that includes judges who are themselves human rights violators. While today’s American gulag is terrible, I know that it would be worse without these courageous legal warriors. I know that I couldn’t do it, and am so grateful that they can. And perhaps a few of them will work a miracle and PFC Bradley Manning, who should be treated as a hero, will once again be a free man.
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