I’ve been seeing a lot from folks up in arms over the treatment of Bradley Manning. Here’s a piece by Kevin Drum and here’s one from the Economist’s DIA blog. These commentators tend to be center left to center on the ideological spectrum. There are some others even farther left who have been even more strident in their criticism of what’s going on with Manning. And if the situation is actually as it is described by these critics, I would probably join them in their condemnation. But let me offer some context from what I know about situations like this (although I have no personal or first hand knowledge of the Manning case).
First, we bureaucrats in the military (and that’s what I am after all) are very diligent in following the rules. In a situation like this, I can see how that puts the government at a disadvantage over a civilian defense counsel. Where the defense counsel in this case can be generally speaking the truth, but also maybe leaving some information out in hopes of swaying public opinion toward their client, due to the Privacy Act, the government is limited in what it can say in response. For instance, if there were a legitimate reason to restrict Manning or leave him without items of clothing for periods of time due to health or safety or suicide reasons, the government could probably feel like they couldn’t say the actual “why” for what they’re doing because to do so without a waiver from Manning would be a violation of the Privacy Act. So the government representatives in this case could be fighting this fight with one hand tied behind their backs. In this case, I suspect there is more to the story and the government representatives are just not able to tell us everything that’s going on.
Another thing to consider is that, in the court-martial system, the allegations that the defense are making can be remedied at trial by a military judge. If the prison officials are doing what they’re being accused of without good justification, then the defense is going to have a field day in motion practice at trial. If there is some indication that Manning is being treated this way in order to get him to talk, the statements are going to get thrown out, just as they would in Federal court. Similarly, there is a significant amount of case law in military law that will allow the defense to ask for additional credit against the final sentence based on violations of the rules on pretrial confinement. It’s a moot point for a sentence of LWOP, but say Manning is sentenced to 10 years. All of the time he has spent in pretrial confinement counts against that time. Say Manning ends up spending 1 year in pretrial confinement before the case is completed. If the defense accusations are true, it wouldn’t be unheard of to ask for and receive 2 for 1 or 3 for 1 credit. That means Manning would actually receive 2 or 3 years credit for his pretrial confinement against his 10 year sentence – a significant amount considering the first chance at parole comes at about the 1/3 of the sentence in the military system.
All that being said, I suspect I’m closer to the position of the defenders of Manning than the position of those who thinks he committed treason. Still, there’s a lot we don’t know yet. I’m curious to see what comes next.
