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The Trials of Bradley Manning Print
Wednesday, 19 June 2013 11:49

Reitman writes: "And so began Manning's journey through the exceedingly murky realm of military pretrial detention, a nearly three-year ordeal punctuated by months of legalized torture."

Army Pfc. Bradley Manning is escorted into a courthouse in Fort Meade, Md., on the third day of his court martial, 06/15/13. (photo: AP/Patrick Semansky)
Army Pfc. Bradley Manning is escorted into a courthouse in Fort Meade, Md., on the third day of his court martial, 06/15/13. (photo: AP/Patrick Semansky)



The Trials of Bradley Manning

By Janet Reitman, Rolling Stone

19 June 13

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n June 2010, about two weeks into his military detention at Camp Arifjan, Kuwait, Bradley Manning, the 22-year-old Army private accused of leaking hundreds of thousands of classified documents to WikiLeaks, was taken from the air-conditioned tent where he'd been living, barracks-style with a handful of other inmates, and placed in a cage. No explanation was given; the reasons for this abrupt transfer, which occurred several weeks before any official charges were filed against him, still remain unclear. He would spend more than a month in this contraption; an eight-by-eight-foot cube - nearly identical to those used at Guantánamo - made of steel grid panels and equipped with a bunk, stainless-steel sink and an attached toilet. Human contact, other than with base psychiatrists and guards who would shake down his cell several times a day, was almost nil. On a "reverse sleep cycle," he was woken at 10 p.m. and sent to bed around one or two the next afternoon.

Thus removed from the normal rhythms of the world, Manning, who'd already been in a fragile, emotional state before his arrest, very quickly and visibly began to deteriorate. He was found one night "screaming, shaking, babbling, and banging and bashing his head into the adjacent wall," according to official documents. He had fashioned a noose out of bedsheets, "but it was pointless," he later said, noting there was nowhere to hang it. By the second week of his confinement, Manning had spent so much time in his cage that he had come to believe that he might languish there forever. "My days were my nights and my nights were my days, and after a while it all blended together and I was living inside my head," he said. "I just remember thinking, 'I'm going to die. I'm stuck here in this animal cage, and I'm going to die.'"

And so began Manning's journey through the exceedingly murky realm of military pretrial detention, a nearly three-year ordeal punctuated by months of legalized torture, not unlike what enemy detainees endured at Guantánamo Bay. Though not the standard treatment for U.S. soldiers, even those accused of war crimes, Obama administration officials deemed it "appropriate" for Manning, who, in many regards, "ceased to be a 'soldier' from the moment he crossed the line and revealed the secrets of the war," observes Kristine Huskey, the director of the Anti-Torture Program at Physicians for Human Rights. "In doing that, he became, in effect, the 'enemy.' And once you're the enemy, you can be subject to treatment that is not for people on our side."

A former intelligence analyst, Manning was arrested on May 27th, 2010, at his base in eastern Iraq. Army investigators searched his computer, finding evidence of thousands of State Department and military communiqués and encrypted chats between Manning and an account associated with WikiLeaks founder Julian Assange. Manning would ultimately be accused of the biggest leak of government secrets in U.S. history - a massive disclosure, hundreds of times larger than the Pentagon Papers, composed of more than 700,000 U.S. intelligence documents including: a July 2007 video of a U.S. Apache helicopter attack on Iraqi civilians, in which 18 people were killed; nearly 500,000 reports from the wars in Iraq and Afghanistan; more than a quarter of a million diplomatic cables from U.S. embassies around the world; and 779 documents pertaining to Guantánamo Bay.

Though none of the material was "top secret" (the Apache helicopter video, in fact, wasn't classified at all, nor were more than half of the cables), it was nonetheless a damning and, at times, a highly embarrassing portrait of U.S. might and diplomacy, exposing night raids gone terribly wrong; missile strikes mistakenly targeting children; countless checkpoint shootings of Iraqi civilians; widespread torture conducted by the Iraqi forces with the tacit approval of U.S. troops bound by an official yet previously undisclosed policy of noninterference; and rampant corruption on the part of U.S. allies in Afghanistan, Pakistan and many Middle Eastern nations.

It was by any estimation a staggering breach, painting aportrait of a myopic military culture that, as one former State Department official puts it, "was so intent on keeping the enemy out, I don't think anyone possibly imagined that someone would do something from inside a base."

It was also, as Manning told it, easy. "I listened and lip-synced to Lady Gaga's 'Telephone' while exfiltrating possibly the largest data spillage in American history," he confided to Adrian Lamo, a hacker who Manning contacted and gave a breathtakingly candid confession. "Pretty simple and unglamorous. No one suspected a thing."

Manning now stands accused of 22 violations of military law, eight of which fall under the Espionage Act, an arcane 1917 statute against sharing information with unauthorized sources that was previously used to indict spies like Aldrich Ames, who pleaded guilty in 1994 of selling secrets to the Soviets. Using the Espionage Act to go after leakers has been a signature move of the Obama administration, part of what some view as a larger "war on whistle-blowers" that signifies a stunning reversal from the president's original stance of bringing greater transparency to government. Since Obama first took office in 2009, his administration has brought six prosecutions for leaking national security secrets - more than all the past administrations combined. Of them, Bradley Manning is the only member of the U.S. military and the only person to be placed in pretrial detention. He is also the only person to be charged with "aiding the enemy" by, as the charge sheet reads, "wrongfully and wantonly" causing U.S. intelligence to be published on the Internet, where enemies of the United States might see it.

At a pretrial hearing in December 2011, Maj. Ashden Fein, the government's lead prosecutor in the case, argued that because Manning had read Army reports showing that Al Qaeda and other enemies of the United States used WikiLeaks, he thus "knowingly," if indirectly, provided them with classified information. Whether Manning intended to help Al Qaeda or any other foe is, the government argues, immaterial. "If somebody stole a loaf of bread to feed her family, she still stole the loaf," one of the government prosecutors, Capt. Angel Overgaard, said in January.

In pursuing this line of prosecution, constitutional experts say the government is treading on dangerous ground. "Using the aiding-the-enemy charge in a typical leak case without any evidence that the person had a real intent to give information to the enemy is unprecedented," says Ben Wizner, the director of the ACLU's Speech, Privacy and Technology Project. "Manning hasn't been accused of doing this because he wanted to help Al Qaeda; they just say he put it out there, and any reasonable person would assume that Al Qaeda would have access to it - well, sure, and so would millions of other people."

From the moment he was arrested, Manning was denounced as a traitor. Fox News, unsurprisingly, described him as a "rogue GI." Mike Huckabee argued that "anything less than execution is too kind." The liberal establishment was equally disdainful, ignoring the notion that Manning, a self-described "idealist," was motivated by conscience, seizing instead upon the fact that he had emotional problems. He was "troubled," said The Washington Post; he had "delusions of grandeur," reported The New York Times. "He wasn't a soldier," a recruit who'd been at basic training with Manning told The Guardian. "There wasn't anything about him that was a soldier."

To be sure, Manning was an atypical soldier. Standing just five feet two, "tiny as a child," as one colleague described him, Manning was a relentless questioner. He wore a custom dog tag identifying himself as a "humanist." He had a pink cellphone. He was all but openly gay. Raised in Crescent, Oklahoma, a town with "more pews than people," as he put it, he'd come out to his friends at 13, but since joining the Army in 2007 had lived under multiple layers of secrecy, thanks to the military's "don't ask, don't tell" policy. Boot camp had been a misery. Bullied relentlessly, he suffered anxiety attacks, got into fights, even peed on himself (more than once). At Fort Drum, New York, where Manning was posted with the 10th Mountain Division, he was unable to adapt to military discipline and would often scream back at superiors. He "hated messing up," as one of his supervisors said, and was plagued by feelings of failure, taking any criticism as a personal slight. He flew into uncontrollable rages, yelling, crying and throwing chairs, then became sullen and withdrawn. His behavior was so erratic, several of his superiors suggested he not be deployed.

But the Army, stretched thin by two wars and in desperate need of qualified intel analysts, ignored these recommendations. In the fall of 2009, Manning left for Iraq with the 10th Mountain's 2nd Brigade Combat Team, a light-infantry unit he would describe as "a bunch of hyper-masculine, trigger-happy, ignorant rednecks." Haunted by fears that he wasn't "masculine enough," as he told a friend, he began to question his gender. On leave in the U.S. during the snowy winter of 2010, he spent a few days dressed as a woman. He called his female alter ego "Breanna."

Beyond these personal issues was the fact that Manning had begun to have serious reservations. "Manning had a reason to believe the U.S. was engaged in activities that violated a number of laws, and so he made a fateful decision to expose illegality," says Thomas Drake, a former National Security Agency official who was indicted under the Espionage Act in 2010 for leaking sensitive information to the press. "That is the classic definition of a whistle-blower, and what has happened to him since is classic retaliation against someone who exposed pathological power run amok."

On a brisk day in late November 2012, Manning, accompanied by his lawyer, David Coombs, arrived at Fort George G. Meade, the stark, brick Army base outside Baltimore, to argue that his detention at the Marine Corps brig in Quantico, Virginia, where he was transferred after two months in Kuwait, amounted to illegal pretrial punishment. A diverse crowd packed the tiny courtroom: a melange of whistle-blower advocates, attorneys, activists - the latter group dressed in black T-shirts inscribed with the word TRUTH. And of the approximately 20 reporters in attendance, only a handful were from the mainstream U.S. media, which largely ignored the proceedings.

Though WikiLeaks had made news all over the planet, Manning had remained an enigma, squirreled away in military detention while his case was all but subsumed by the government's relentless pursuit of Assange. With Manning unable to speak for himself, his story had been relegated to various friends, family, free-speech advocates, human rights activists, lawyers, reporters and soldiers who'd served with him, all of whom contributed to the narrative that painted Manning as a fragile, damaged, weak individual - an emotional basket case who should never have been deployed to begin with, let alone given a top security clearance.

But the Manning who showed up at Fort Meade was not this soldier. Clad in his navy-blue dress uniform, with rimless glasses and short, neatly combed blond hair, Manning did not come off as "effeminate," as he had been so often portrayed. He didn't cry. He didn't even tremble a little bit - not even when, on the first day of his testimony, his lawyer asked him to map out on the courtroom floor a diagram of his cell at Quantico that, when he'd finished, was so tiny that Manning appeared almost large standing in the middle of it. Not even when, on the second day, the prosecutor held up the "noose" Manning had made of a pink bedsheet, and asked him if he remembered it. During one poignant moment, Coombs handed Manning a cardboardlike "suicide smock," like the one he was given to wear in lieu of clothes at Quantico, and asked him to put it on. A stiff blue contraption about 300 sizes too big, it made Manning look like a turtle.

Most of all, Manning seemed very young - a factor easily forgotten amid the larger conversations about government secrecy and WikiLeaks. He'd been just 21 years old when he'd begun perusing classified databases and saw "incredible things, awful things . . . ?things that belonged in the public domain, and not on some server stored in a dark room in Washington, D.C." They were internal memos laying out the sordid details of the most blood-soaked and morally questionable wars since Vietnam, conflicts whose essential contours were something that Manning, who was 13 when the U.S. went to war in Afghanistan, and 15 when it invaded Iraq, only vaguely understood.

Now he knew. And by every indication, he was horrified. "I want people to see the truth regardless of who they are, because without information, you cannot make informed decisions as a public," he told Lamo. "I feel, for some bizarre reason, it might actually change something. Or maybe I'm just young, naive and stupid."

It is sometimes difficult to recall, more than a year after the last troops departed Mesopotamia, the huge political, moral and financial morass that was the Iraq War. Launched in 2003 with an optimistic in-and-out strategy, it was an endless, grinding conflict against a resilient insurgency that killed or maimed more than 36,000 troops while costing taxpayers approximately $835 billion. By 2007, the year Manning enlisted, the Army was a study in dysfunction. VA hospitals overflowed with wounded soldiers. Countless more suffered from PTSD. Suicides soared throughout the ranks. With recruitment steadily declining, the Army lowered its standards, accepting more kids with drug, alcohol and physical problems. It recruited record numbers of non-high-school graduates, and even sunk to doubling the "moral waivers" it granted to felons. In 2008, the cost of Iraq was averaging $11 billion per month with no end in sight. By 2009, the bloodshed was such that U.S. forces, under the counterinsurgency strategy of David Petraeus, had turned to paying their former enemies not to attack them.

And yet while the war was a disaster, there was an unstated "prohibition against exposing the myth," in the words of one former high-ranking military official. This silent edict wound its way from the Pentagon to Baghdad, where, over time, it would make its way in the form of a cynical complacency to remote outposts like Forward Operating Base Hammer, where Bradley Manning began his tour in the fall of 2009. By then, recalls Peter Van Buren, a former State Department official who was posted in Iraq, much of what the U.S. was doing had become blatantly transparent. "We'd been at it for years and didn't have much to show for it," he says. "The Iraqis knew that too. They'd learned very quickly that our expectations were very low, and so they played along with the charade. Everyone was winking across the table at one another."

Manning, arguably, wasn't in on the joke. The son of a former Naval-intelligence operator, he had an almost naive belief in American power; he'd wanted to be a soldier since the third grade. A natural with computers, which he'd learned to program when he was eight, he also believed he might be good at the Army - at least the part that didn't require shooting anyone. "I'm more concerned about making sure that everyone - soldiers, Marines, contractors, even the local nationals - get home to their families," he once told a friend. "I feel a great responsibility and duty to people."

A science geek, Manning dreamed of studying physics at Cornell or MIT. But prior to enlisting, he'd spent a few years adrift, working odd jobs, moving from Oklahoma City to Tulsa to Chicago and finally to Potomac, Maryland, a suburb of Washington, D.C, where he worked at Starbucks and spent much of his free time playing an extraordinary amount of Eve Online, the multiplayer sci-fi role-playing game. The Army offered Manning a new life and a way to pay for college, and as draining as it was on him personally, he was, by every account, excellent at his job. A "35 Fox," the Army's code for an intelligence analyst, Manning scrutinized data across a broad spectrum of sources and prepared intelligence briefings for his superiors. A voracious reader, he spent his free time poring over books on physics, biology, international relations, even art history, all of which he believed could inform his analysis and "hopefully," he told a friend, "save lives."

FOB Hammer was a middle-of-nowhere base, situated in eastern Iraq, about a third of the way between Baghdad and the Iranian border. Nine miles square, it had been built for the surge and was fortified by layers upon layers of blast walls and concertina wire to fend off attack. When it rained, the ground turned to peanut butter. When it was dry, soldiers lived in mountains of dust. No matter where you looked, the vista was the same: empty.

Life on the FOB was in some ways a portrait of end-of-the-war ennui. Only a fraction of the 300-odd soldiers at Hammer engaged directly with Iraqis; the rest, like Bradley Manning, never left the base. His world was smaller than a football field, consisting of his double-occupancy trailer, the base chow hall, recreation center and shower trailer and, just a few steps away, his workstation in the Sensitive Compartmented Information Facility, or SCIF. In this windowless plywood box of a building, intelligence analysts led a Groundhog Day-like existence working 12-hour shifts, after which they'd eat, sleep, wake up and do it all over again. It was tedious, often boring work, and security was remarkably lax. "Everyone just sat at their workstations? watching music videos, car chases, buildings exploding," he later said.

But their access was tremendous: Even low-level analysts could connect to SIPRNet - the Secure Internet Protocol Router used by both the State Department and the Department of Defense to transfer classified data - as well as to another network used by the Justice Department and the Department of Homeland Security. The networks were monitored but mostly for outside intrusion. Manning once asked an NSA official if the agency could find any suspicious activity coming out of the local networks. "He shrugged," Manning recalled, "and said, 'It's not a priority.'"

Manning started off on the night shift, as part of the Shi'a Threat Team, a group of analysts tasked with tracking insurgent supporters of radical Shiites like Muqtada al-Sadr. He did well, earning commendations for his "persistence," and in November 2009 was promoted to specialist. Not long afterward, word began to spread around the FOB that Al Qaeda was publishing "anti-Iraqi literature" at a local printing facility. With help from American troops, the Iraqi federal police raided the place and arrested a group of 15 men they claimed to be insurgents.

But almost immediately after the raid, it became clear to U.S. forces that the men were not Al Qaeda, but political opponents of Prime Minister Nouri al-Maliki, whom the government wanted to silence. It was an embarrassing moment for the 10th Mountain, whose officers "simply wanted it to go away," as one government official who was there recalls. "Had we done our research, we would have realized that Maliki was a thug who was using us to do his dirty work." For some of the soldiers, particularly those who truly believed they were nation-building, it was a devastating blow. "This was their first encounter with the gap between propaganda and reality," the official adds. "We weren't promoting democracy at all. In fact, this whole democracy thing was bullshit."

Manning was one of the first soldiers to learn of the fiasco, having been ordered to investigate the "bad guys" after the raid. "It turned out they had printed a benign political critique titled 'Where Did the Money Go?' following a corruption trial within the prime minister's cabinet," he said. Shocked, Manning "immediately took that information and ran to the officer [in charge] to explain what was going on." The officer told him to "shut up," he said. "He didn't want to hear any of it."

Manning knew the 15 Iraqis were doomed. The Iraqi police were known to torture their prisoners, while the U.S. military looked the other way. Manning couldn't. "That was a point where I was actively involved in something that I was completely against," he said. "And completely helpless." From then on, "everything started slipping. I saw things differently."

According to the government's charges, Manning made his first contact with WikiLeaks in November 2009, either just before or not long after the detainee incident. He would ultimately say he made direct contact with the "crazy white-haired Aussie" otherwise known as Julian Assange, though whether he spoke directly to Assange is unknown. "I've talked to Julian many times, but I've also talked to other guys too who were also 'Julian,'" says one hacker who's worked with WikiLeaks. "You can never be sure who is who."

Among the first things Manning leaked was a 17-minute video, which was titled "Collateral Murder." The video, taken in 2007, depicts Apache helicopters firing on unarmed civilians who appear to be mingling with insurgents in the street. The wounded crawl away and are shot dead. A van appears to retrieve the bodies; there are kids inside. They are shot, too. The crew banters back and forth as if they're playing Call of Duty. "Look at those dead bastards," one says. "Well," remarks another, "it's their fault for bringing their kids into a battle."

Manning had watched the video in the SCIF - these kinds of films played routinely and were watched by dozens of people. "At first glance, it was just a bunch of guys getting shot up by a helicopter?. . . . No big deal," he said. "But something struck me as odd with the van thing?. And also the fact that it was being stored in a JAG officer's directory." So Manning dug deeper, eventually tracking down the date of the incident and the GPS coordinates, and coming up with a story from The New York Times discussing the death of two Iraqi journalists among 16 killed in a clash with "Shiite militias." "It was unreal," Manning said. "It humanized the whole thing. I just couldn't let these things stay inside my head."

"Collateral Murder" was released on April 5th, 2010, at a WikiLeaks press conference at the National Press Club in Washington, D.C. Within days, it had gone viral - a graphic snapshot of 21st-century soldiering run amok - and was held up by media organizations worldwide as documentation of a war crime.

Manning, meanwhile, had the surreal experience of watching the reaction to his leak from the confines of his base. He was amazed when several of the perpetrators of the attack issued mea culpas, and he friended a few on Facebook without them having any idea who he was. But the crushing routine of the FOB, made worse by his isolation and gender-identity crisis, weighed on Manning. Between December 2009 and May 2010, the period Manning was allegedly in contact with WikiLeaks, superiors noticed a drop-off in both his performance and his mental state, culminating with an incident on May 7th, 2010, when he was found curled up on the floor of the SCIF in a fetal position, having carved the words I WANT into a chair. A few hours later, Manning punched a superior in the face. "I'm tired of this!" he said, as his target, Spc. Jihrleah Showman, pinned him to the ground.

The following day, Manning was demoted back to private first class, removed from his job as an analyst and assigned to the supply room as a clerk. Already miserable, he was now as marginalized as he'd ever been. For Manning, it seemed as if the "only safe place," as he put it, was the Internet.

One lonely night, looking for connection and having reached out to strangers online before, he e-mailed a 29-year-old security consultant named Adrian Lamo. A once-handsome Colombian-American with a prescription-drug habit, Lamo had become famous in the early 2000s as the "homeless hacker," a digital savant who, having dropped out of high school in San Francisco, traveled the country on a Greyhound, sleeping on friends' couches or in abandoned buildings, downing handfuls of amphetamines and using his battered Toshiba laptop to troll through the databases of corporate behemoths like Yahoo, AOL and MCI WorldCom - after which he'd helpfully explain to the companies' system administrators how to plug the holes he'd found.

Lamo's career as a "security do-gooder" ended abruptly in 2002, after he, then 21, hacked The New York Times and notified the company to point out its security flaws. The Times was not amused. In 2004, after a lengthy FBI investigation, Lamo pleaded guilty to computer crimes, for which he was given a sentence of six months under house arrest.

Other hackers regarded Lamo with a mix of curiosity and distrust. "No one can really pinpoint anything particular that he'd done, at least since he'd stopped actively hacking," says Griffin Boyce, a Web developer who knows Lamo. "He took otherwise-secret activities and was fairly open about them; that made people nervous. It's incredibly foolish to speak to the media about doing something illegal." Within many circles, the consensus was that Lamo, desperate for recognition, might do virtually anything for publicity.

But Bradley Manning knew none of this. All he knew was that Lamo, who was openly bisexual, had starred in a 2003 documentary, Hackers Wanted, which focused on Lamo's travails with law enforcement; he also knew, from Lamo's tweets, that he supported WikiLeaks. Hackers Wanted had never been released, but in May 2010 it leaked online. Shortly afterward, Lamo received a message from a stranger.

"Hi," wrote aperson named "bradass87." "How are you? I'm an Army intelligence analyst, deployed to eastern Baghdad, pending discharge for 'adjustment disorder.'. . . ?I'm sure you're pretty busy . . .? [but] if you had unprecedented access to classified networks 14 hours a day, 7 days a week for 8-plus months, what would you do?"

Lamo notified the authorities, and over the course of the next several days, he surreptitiously logged their chats. Manning, believing he was speaking confidentially, let loose. He explained the WikiLeaks submission process and said he'd talked with Assange numerous times. He went into depth about lack of security at his FOB and how easy it was to steal information. "The culture bred opportunities," he said. He referred to himself as a "mess," and spoke of his disillusionment - "I don't believe in good guys versus bad guys anymore only [in] a plethora of states acting in self interest." He often seemed like he was having a nervous breakdown.

Lamo would later say that he was afraid Manning's leaking could put American lives at risk. "Brad was detailing his last-ditch vision of an effort to save the world from itself," Lamo says. "I was seeing my own worst-case scenario of long ago play out: the arbitrary scattering of data that was at best hopelessly subjective and at worst prone to misuse. Truth is an elusive, personal thing," he adds. "Brad confused facts with truth. You can't convince people of a truth they don't want to see."

On May 25th, Lamo met with government agents at a Starbucks near his house in Carmichael, California, and handed over the logs of his chats, providing investigators with the crux of their evidence against Manning. Two days later, a week after initiating contact with Lamo, Manning was stopped by Army CID agents while at work in the supply room at FOB Hammer, escorted into a conference room and handed a piece of paper explaining his legal rights. After a brief hearing before an Army magistrate in Baghdad, he was remanded into the custody of the United States military, pending trial. The agony of Manning's Army career was at an end. But the real torture was yet to come.

On July 25th, 2010, two months after he was arrested, the extent of Manning's ambitions to expose the dark side of American wartime conduct became apparent when WikiLeaks published the "Afghan War Diary." Manning described the six-year archive of secret military communiqués as "one of the most significant documents of our time, removing the fog of war and revealing the true nature of 21st-century asymmetric warfare." The New York Times broke the story the following day in a front-page article depicting the logs as presenting a bleak portrait of the Afghan war, "in many respects more grim than the official portrayal." Five days later, Manning was removed from his cage at Camp Arifjan and put on a commercial charter bound for the United States. Now the highest-value U.S. military detainee in recent history, he was incarcerated at the Marine Corps brig in Quantico, Virginia, where he would pay for his sins.

For decades, soldiers awaiting court-martial had been detained in Quantico brig, a low-slung brick building situated among the elms on one of the country's most illustrious Marine outposts. The Baltimore Sun once referred to it as "the world's most well-behaved prison." But its resources had been halved by recent downsizing, leaving it unable to adequately support long-term detainees, let alone someone of Manning's stature. There were no permanent mental-health counselors or treatment programs: Those in need of psychiatric care were left to see the base psychiatrist, whose duties spread across a 58,000-acre campus.

Manning's incarceration came in the wake of years of scandal over military-detention policy. Nearly 200 detainees have died in U.S. military custody during the War on Terror, among them, seven alleged "suicides" at Guantánamo Bay and two other mysterious deaths at Bagram Air Base in Afghanistan that were later proved to be murders. Though harsh interrogation practices stopped under Obama, curbing suicide - be it of foreign detainees or of U.S. service members - was now one of the military's top priorities.

Making sure that nothing happened to Bradley Manning would become a fixation for Quantico officials, notably Lt. Gen. George J. Flynn, who commanded all operations on the base from his office at the Pentagon. In the spring of 2010, a Navy captain named Michael Webb had killed himself while detained at the brig. Flynn urged his staff to make sure this didn't happen again. "It would be good if you impressed upon all who come in contact with Pvt. Manning the absolute necessity of keeping a close watch on him," he wrote to base officials. "His life has completely fallen apart, which makes him a strong candidate (from my perspective) to take his life."

It was into this hypervigilant environment that Manning arrived on the warm night of July 29th, 2010, exhausted, having traveled nearly 24 hours from Kuwait via Manheim, Germany. Fearing he'd be sent to Guantánamo, he was initially "elated," he said, to be in the United States, in a "brick-and-mortar building with air conditioning, hard floors and running water." This changed when Manning was taken into a darkened room, where several Marines began a verbal onslaught he called a "shark attack."

"Face the bulkhead!" Manning had no idea what a bulkhead was. Marine terms were different from Army terms, as was also true with rank. A private first class, Manning was now a lance corporal to the Marines. To not know these distinctions was cause for "correction," which meant more attacks. After this harsh indoctrination, Manning could barely think. "Basically, everything I did was wrong," he said.

One of the questions Manning was asked was whether he wanted to commit suicide. It was a fair question: Manning had been put on suicide watch in Kuwait, after making two nooses in his cell. But after talking to a psychiatrist, who put him on anti-anxiety medication, he'd stabilized. Now he felt fine, he told the guards, who didn't seem to believe him. They pressed him about what happened in Kuwait again and again: If you're fine, then why were you on suicide watch?

Finally, after repeatedly trying to answer the questions to their satisfaction, Manning picked up a pen and, with the Marines standing over him demanding he answer conclusively whether he was suicidal, wrote the phrase: "Always planning, never acting." It was sarcastic, he later explained, and maybe a little clueless. It would also define his fate.

The military does not use the term solitary confinement, preferring "administrative segregation" to describe the form of isolation that Manning, because he was deemed a suicide risk, endured. At Quantico, he was installed in a six-by-eight cell with no window or natural light and spent no less than 23 hours per day in an area the size of an exceedingly small closet. Although regulations state that any discipline administered must be "on a corrective rather than a punitive basis," he spent his waking hours, from 5 a.m. until 10 p.m., forced to sit on the edge of his bed, back straight, in what, after many hours, could be seen as a stress position. He was not allowed to lie down or lean his back against the wall. His glasses, without which he couldn't see, were taken away, leaving him to spend the first few days in a fuzzy oblivion. The brig ultimately returned his glasses, but they were his only accessory: Manning was not allowed toiletries or any other possessions; even pen and paper were only given to him one hour per day to write letters. Though he could read, he was allowed only one book or magazine at a time - but never a newspaper - and if he put the book down to rest his eyes, or was spotted not "actively reading," it was taken away.

There were several guards charged with what they called "Manning Watch" and whose instructions were to check on Manning every five minutes, 24 hours a day. Constant observation and frequent interruption were well-worn tactics widely used on detainees in Iraq and Afghanistan, as well as at Guantánamo. "It's sleep deprivation, basically," says Brandon Neely, a former Army MP who was posted at Guantánamo. It was also broadly acknowledged, and condemned, by human rights monitors, as a form of punishment.

At Quantico, these abuses were considered part of "suicide prevention." To ensure he didn't harm himself, Manning had neither sheets, nor a pillow, and had to relinquish his clothes at night. He was required to sleep on his back, with his head facing the observation booth, directly in the path of a florescent light - if he rolled over, or tried to sleep on his side, a guard would correct him. His arms had to remain above the tear-proof "suicide blanket" he was given, which felt like sandpaper. If his arms inadvertently crept under his blanket when he was asleep, the guards would wake him. Once, trying to untangle himself, he got stuck in the oversize-yet-unwieldy suicide smock and needed assistance to get out of it.

For the first five months of his confinement at Quantico, Manning was allowed just 20 minutes a day of "sunshine call," during which he was taken from his cell in full restraints and led either to an exercise yard or a small rec room. There, held up by guards to prevent Manning, who weighs just 105 pounds, from toppling over, he'd walk, very slowly, in a figure-eight pattern. When he was done, he'd be returned to his cell to sit in isolation, for there were never any inmates housed nearby - ostensibly out of concern, one brig official later testified, for other detainees' sense of patriotism.

Soon after arriving at Quantico, Manning began meeting with Dr. William Hocter, the base psychiatrist, who recommended he be taken off suicide watch after a week. Navy regulations specifically state that once a psychiatrist deems a prisoner to no longer be at risk, he or she shall be removed from suicide watch. At Quantico, however, the officer in charge of the brig, Chief Warrant Officer James Averhart, chose to ignore this directive, later explaining that, in his view, the word "shall" did not mean "right now," but rather "when I'm satisfied." Averhart waited nearly a week to abide by Hocter's recommendation. That August, he took Manning off suicide watch and placed him in "prevention of injury" watch, a status that may be arbitrarily imposed by brig officials without a psychiatrist's agreement. Despite his psychiatrist's continued recommendation that he be taken off, Manning remained on POI for the next nine months.

Manning's downgrading to a POI - or suicide-risk-lite status - gave him a few more privileges. Now, instead of a suicide smock, he had shorts, a T-shirt and flip-flops to wear during the day (though he still had to relinquish all but his underwear at night). Otherwise, his treatment was much the same: Meals were in his cell, on a plastic tray, with a metal spoon. Exercise in his cell, even sit-ups or push-ups, was forbidden, in the fear that he would injure himself. When he showered, a guard stood outside "with a line of sight on me," he said. When using the toilet, in full view of the guards, he had to request his toilet paper in formal Marine fashion: "Lance Corporal Bradley Manning requests toilet paper!"

Hocter was appalled. In his 20-year career treating patients at military and civilian prisons, including Guantánamo, the Navy captain had never seen any detainee held with such unremitting security as Manning, nor had his recommendations ever been so consistently disregarded. "It wasn't good for Manning, and it just wasn't clinically appropriate," he testified. "If they had a specific reason [why] he had to be watched that closely, it wasn't known to me, and it wasn't psychiatric."

Hocter sought a second opinion in Dr. Ricky Malone, a prominent forensic psychiatrist from Walter Reed, who concurred with his conclusions. "I didn't think Manning needed suicide precautions?. . . . I saw no reason for safety precautions," he later said. In fact, he added, "If I was treating him in my clinic, I'd only be seeing him one or two times a month." Brig officials thanked the psychiatrists for their "input" and did no more.

If Manning had been a tough fit for the Army, the Marines regarded him as if he were from another planet. Half the size of most MPs, with thick, military-issue glasses that almost swallowed his face, he was an utterly unfathomable nerd who pored over Scientific American and kept a stack of books in an adjacent cell, among them George W. Bush's memoir, Decision Points, Howard Zinn's A People's History of the United States, Carl von Clausewitz's On War and two works by Emmanuel Kant. He rarely spoke, but when he did, he launched into soliloquies about evolution and man's use of the brain. He made faces in the mirror. He plucked his eyebrows with his glasses. He played peekaboo. Sometimes, he'd wage what looked like imaginary sword fights with imaginary characters or lift imaginary weights. Sitting on his bed, cross-legged, he'd contort his legs into what the guards seemed to think were uncomfortable, even dangerous, positions that were actually yoga poses. At other times, he danced around his cell as if he were at a rave. Once, to the guards' horror, he even licked the bars of his cell door.

"Dancing is not technically exercise as far as they were concerned," Manning said in court. "Since it wasn't unauthorized, I figured I could do it." His imaginary weight lifting was, he explained, resistance training. Sword fighting was an escape. "I tried to do anything to stay awake," he said. Making faces in the mirror was a regular part of his day. "It was sheer, complete, out-of-my-mind boredom. The most entertaining thing in there was the mirror," he said. "At least you can interact with yourself."

But the MPs, notably Manning's official minder, Master Sgt. Craig Blenis, didn't get that. Manning was too quiet - a sign to Blenis that he might be plotting something. Then there was the issue of his gender. Blenis had intercepted a letter Manning had written in which he'd signed his name "Breanna Elizabeth." That, in Blenis' view, was clearly "not normal."

Stuck in this Kafka-esque labyrinth of psychiatrists who said Manning wasn't suicidal, MPs who insisted he was, and commanders whose only interest, as one senior base official, Col. Robert Oltman, admitted during a heated argument with Hocter, was that Manning not die "on my watch," Manning appealed directly to the classification-and-assessment board to reconsider his status. He was given a hearing, during which Manning's intake statement, "always planning, never acting," was the focal point. Manning tried to explain that he'd felt pressured by the Marines who were standing over him at the time.

"So you just lied?" The guards were incredulous. Manning stammered that he didn't know if it was a false statement. "I was told to put something down, and I put something down without thinking about it."

"If we can't trust you [were] telling the truth at that time, how can we trust that you are telling the truth now?" one Marine said. "How can we believe what you say, ever?"

By the extreme standards set by the War on Terror, Bradley Manning was not technically "tortured." His treatment - isolation, suicide watch, minimal exercise - was arguably, and unfortunately, not much different from what many prisoners endure throughout the American penal system, including those in pretrial detention. One editorial in the New York Daily News made note of this fact - "Hardly waterboarding," the paper said. "Hardly electrodes on the genitals. Hardly beatings. Hardly burns."

The real measure of torture, however, is far more nuanced. Manning was, if not officially, then effectively, in solitary confinement, which is perhaps the most devastating form of torture: designed to break the spirit and punish. By the winter of his incarceration, the lack of sunlight and clothing and ability to lie down or lean back like a normal human being - not to mention the daily humiliation of having to ask permission, in a sense, to publicly go to the bathroom - had taken its toll. His world was his cell. Gradually, Manning began to feel as if he were mentally slipping backward into "that lonely, dark, black hole of a place" he'd been at in Kuwait.

Seven months into his isolation, Manning told Master Sgt. Brian Papakie, the second in command of the brig, "I don't understand. I'm not doing anything to harm myself." And yet his appeals had gone nowhere. He ran down a list of ways he could hurt himself if he really wanted to: throwing himself against the wall, drowning his head in the toilet, jumping up and down until he had a heart attack. He'd done none of these. "If I really wanted to hurt myself, I could use my underwear or flip-flops."

To Manning, the comment was a moment of frustrated sarcasm. But to the Marines who ran the brig, it was a threat. That night, Manning was told to give up his underwear and flip-flops, as well as the rest of his clothes. He spent the night under his suicide blanket, naked.

Manning woke before reveille to find that his clothes, which were usually delivered to him on his feed tray, weren't there. He usually stood for the morning count in his boxers and shower shoes, a blanket wrapped around him. This morning, as even his underwear was missing, he'd have to stand without any clothes at all. He grabbed his blanket and attempted to put it in front of his genitals. "Is that how you stand at parade rest, Detainee Manning?" a guard barked at him.

Manning dropped the blanket and for the next three minutes stood stark naked, feet shoulder-width apart, hands clasped behind his back, facing the entrance to his cell. As the duty brig supervisor made his rounds, Manning snapped to attention. The supervisor stopped, looked at him and moved on. Several minutes later, Manning was given back his prison uniform.

Manning was forced to relinquish his clothes for the next three nights. On March 4th, 2011, news of Manning's forced nudity had been leaked to The New York Times. When the piece reached the desk of Lt. Gen. Flynn, he felt blindsided. "It would be good to have the leadership have a heads-up on these things before they are read!" he furiously e-mailed Quantico's commander irate. However, Flynn didn't ask that Manning be given back his clothes. None of the senior brass, in fact, seemed concerned with Manning's treatment. From the MPs guarding the brig to officials at the Pentagon, the attitude was, as one former general notes, one of "callous indifference."

This, in many minds, underscores the dangers of officially sanctioned enhanced interrogation techniques. "In my view, the participation of the military in these confinement and interrogation procedures has had a very corrosive effect over time," says Dr. Stephen Xenakis, a retired Army brigadier general and psychiatrist who is a strong opponent of torture and other harsh interrogation practices. "I'm seeing these kinds of gratuitous and directionless, malicious acts and attitudes for no particular purpose. It shocks me."

The former chief prosecutor of the Guantánamo military commissions, retired Air Force Col. Morris Davis, agrees: "This whole 'gloves off, you're either with us or with the terrorists' attitude that percolated down from the president to the privates on the front lines undermined the foundations of our military." The question today is whether these practices, which Davis notes, "legitimized the unacceptable as the new normal," created a mentality that filtered down to affect other military detention procedures. "It becomes much easier to conduct or condone abusive treatment when you've spent years in an environment where everyone is either an 'us' or a 'them,'" Davis says, "and where 'by any means necessary' is the baseline."

The U.N.'s special rapporteur on torture, Juan Méndez, would ultimately conclude that the U.S. government was guilty of "cruel, inhuman and degrading treatment" toward Bradley Manning. A similar conclusion was drawn by some 250 prominent lawyers, law professors and legal scholars, including Obama's longtime mentor and former adviser, Harvard Law professor Laurence Tribe, who in April 2011 signed a letter published in The New York Review of Books denouncing Manning's treatment as "illegal and immoral," violating the Eighth Amendment's prohibition of cruel and unusual punishment, and the Fifth Amendment's ban against pretrial punishment. They also offered a stinging reproach to President Obama, who, they noted, "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."

On April 20th, 2011, after months of public pressure and negative press, Bradley Manning was transferred to the Joint Regional Correctional Facility at Fort Leavenworth, Kansas, where, after an extensive interview with the base's mental-health counselors, he was placed in medium custody. After nearly a year of isolation, he would serve out the rest of his pretrial detention with inmates to talk to, housed in an 80-square-foot cell, with a large window providing natural light, a bed and a toilet. He was given a mattress, sheets and a pillow. He could write letters whenever he wanted and was given back all of his personal effects: books, clothing, letters, legal materials, pens, paper, toiletry items - including soap, toilet paper and a razor - and his clothes. In December, during her testimony at his pretrial detention hearing, the commander of the Joint Regional Correctional Facility, Lt. Col. Dawn Hilton, stated that since he arrived at Leavenworth, Manning has exhibited no significant mental-health or behavioral issues. She described him as a "typical" detainee.

Manning's pretrial detention hearing last December went on for nearly three weeks. On January 8th, 2013, Col. Denise Lind, the military judge who is hearing Manning's case at Fort Meade, ruled that a portion of his treatment at Quantico was "excessive" and did amount to illegal pretrial punishment. Lind gave Manning less than four months off his eventual sentence, but she did not throw out the case as his lawyers had requested. This ruling, though offering a small victory for the defense, served to uphold the government's central argument that whatever Manning may have endured at Quantico was justified in service to the far more important goal of keeping him alive so he could stand trial.

On June 3rd of this year, Manning is scheduled to return to Col. Lind's courtroom, where, after repeated delays, he will finally begin court-martial proceedings. Now 25 years old, he will by then have been in detention for more than 1,000 days - long enough, his attorney has argued, for the Empire State Building, which took only 410 days to construct, to be built, torn down and built again. Manning's defense believes that the sheer amount of time he has been in detention violates the speedy-trial rule, an argument that, so far, has gone nowhere. Nor has the defense's insistence that Manning's idealistic intent - not to mention the fact that he had held back truly "sensitive documents," leaking only those he felt would do no harm - be taken into consideration when considering his guilt. The even broader question of whether the documents he leaked should ever have been "classified" at all, a conversation Lawrence Korb, a former assistant secretary of defense, told me is vital for the country to have, will also not be discussed at trial.

Last November, Manning offered to plead guilty to a subset of the charges, effectively accepting responsibility for being the source of the WikiLeaks documents, though not conceding he aided the enemy. Judge Lind has impressed upon the government its burden to prove that Manning knew, conclusively, that he was aiding Al Qaeda when he leaked the documents. Without this proof, which many legal experts say may be tough to establish, the aiding-the-enemy charge will likely fall apart.

The other charges against Manning, however, will likely stand. The government's case is built on some 300,000 pages of forensic evidence: a gigantic trove that prosecutors say details, down to the minute, Manning's activities. The chat logs between Manning and the entity believed to be Julian Assange - in which the two discuss the procedures for uploading classified materials to WikiLeaks - may be particularly damning in what many believe is a Justice Department campaign to indict Assange for espionage.

Later this year, the American government's long campaign against Bradley Manning will conclude with a probable judgment that will send him to prison for decades, if not for the rest of his life. Like all the hearings before it, his trial will take place under a thick cloak of secrecy, monitored by military censors, with no public access to court documents, and covered by a sparse and largely independent media. The larger news outlets, like much of the American public, have long moved on from the WikiLeaks saga - just as they lost interest in the war whose abuses Manning exposed. On December 18th, 2011, the last 500 U.S. troops quietly left Iraq, ending an almost nine-year military engagement.

But for Manning, the war, and its consequences, must live on. "We're human? and we're killing ourselves? and no one seems to see that," Manning wrote Lamo in one of their online chats. "It bothers me." He then referenced author Elie Wiesel, whose belief that the opposite of love is not hate but indifference hit home. "Apathy is far worse than the active participation," said Manning. "I prefer a painful truth to any blissful fantasy."

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FOCUS | Why the GOP Can't Learn Print
Wednesday, 19 June 2013 10:44

Reich writes: "It's as if they didn't learn a thing from the 2012 elections. Republicans are on the same suicide mission as before."

Portrait, Robert Reich, 08/16/09. (photo: Perian Flaherty)
Portrait, Robert Reich, 08/16/09. (photo: Perian Flaherty)



Why the GOP Can't Learn

By Robert Reich, Robert Reich's Blog

19 June 13

 

t's as if they didn't learn a thing from the 2012 elections. Republicans are on the same suicide mission as before - - trying to block immigration reform (if they can't scuttle it in the Senate, they're ready to in the House), roll back the clock on abortion rights (they're pushing federal and state legislation to ban abortions in the first 22 weeks), and stop gay marriage wherever possible.

As almost everyone knows by now, this puts them the wrong side of history. America is becoming more ethnically diverse, women are gaining economic and political power, and young people are more socially libertarian than ever before.

Why can't Republicans learn?

It's no answer to say their "base" - ever older, whiter, more rural and male - won't budge. The Democratic Party of the 1990s simply ignored its old base and became New Democrats, spearheading a North American Free Trade Act (to the chagrin of organized labor), performance standards in classrooms (resisted by teachers' unions) and welfare reform and crime control (upsetting traditional liberals).

The real answer is the Republican base is far more entrenched, institutionally, than was the old Democratic base. And its power is concentrated in certain states - most of the old Confederacy plus Arizona, Alaska, Indiana, and Wisconsin - which together exert more of a choke-hold on the Republican national party machinery than the old Democrats, spread widely but thinly over many states, exerted on the Democratic Party.

These Republican states are more homogenous and conspicuously less like the rest of America than the urbanized regions of the country that are growing more rapidly. Senators and representatives from these states naturally reflect the dominant views of their constituents - on immigration, abortion, and gay marriage, as well as guns, marijuana, race, and dozens of other salient issues. But these views are increasingly out of step with where most of the nation is heading.

This state-centered, relatively homogenous GOP structure effectively prevents the Party from changing its stripes. Despite all the post-election rhetoric about the necessity for change emanating from GOP leaders who aspire to the national stage, the national stage isn't really what the GOP is most interested in or attuned to. It's directed inward rather than outward, to its state constituents rather than to the nation.

This structure also blocks any would-be "New Republicans" such as Chris Christie from gaining the kind of power inside the party that a New Democrat like Bill Clinton received in 1992. The only way they'd be able to attract a following inside the Party would be to commit themselves to policies they'd have to abandon immediately upon getting nominated, as Mitt Romney did with disastrous results.

It's true that by 1992 Democrats were far more desperate to win the presidency - having been in the wilderness for twelve years - than today's GOP appears to be. Nonetheless it's doubtful the GOP will be willing to eschew its old base even if it loses the presidency again in 2016, because without its collection of relatively homogenous states, there just isn't much of a GOP.

The greater likelihood is a steady eclipse of the Republican Party at the national level, even as it becomes more entrenched in particular states. Those states can be expected to become regressive islands of backwardness within a nation growing steadily more progressive.

The GOP's national role will be primarily negative  - seeking to block, delay, and filibuster measures that will eventually become the law of the land in any event, while simultaneously preaching "states' rights" and praying for conservative majorities on the Supreme Court.

In other words, more of the same.

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City Seeks Power to Banish People Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=20877"><span class="small">William Boardman, Reader Supported News</span></a>   
Monday, 17 June 2013 13:03

Boardman writes: "The story from Vermont, of all places, is breathtakingly simple: the elected city council, in a bi-partisan vote, has decided to keep its law-making process secret, rather than openly address the question of whether a draconian no-trespass law it passed last winter is patently unconstitutional."

Burlington City Hall. (photo: VTD/Josh Larkin)
Burlington City Hall. (photo: VTD/Josh Larkin)


City Seeks Power to Banish People

By William Boardman, Reader Supported News

17 June 13

 

ecrecy, being an instrument of conspiracy, ought never to be the system of a regular government." - Jeremy Bentham

The story from Vermont, of all places, is breathtakingly simple: the elected city council, in a bi-partisan vote, has decided to keep its law-making process secret, rather than openly address the question of whether a draconian no-trespass law it passed last winter is patently unconstitutional.

That's right, rather than explain why the law it passed is constitutional, the Burlington City Council is hiding behind lawyer-client privilege as if it - the council - were some private corporation rather than a democratically-elected local government.

The ordinance in question, the "Church Street Marketplace District Trespass Authority," passed the City Council unanimously in February 2013. The council vote followed seven public hearings at which some concerns were raised and addressed, but no controversy arose. The ordinance allows the immediate and arbitrary banishment of people from public streets with no due process of law and no effective appeal process.

Councilors with doubts about this ordinance had them assuaged, in part, by an analysis of the proposed law written by Assistant City Attorney Greg Meyer in mid-2012, assuring the council that it was within its constitutional rights to ban people from public streets and without authority to do so from the state legislature. That analysis by the city attorney's office was, and is, secret from the public.

"Every thing secret degenerates, even the administration of justice; nothing is safe that does not show it can bear discussion and publicity." - Lord Acton

Burlington city attorney Eileen Blackwood argues, according to Seven Days, that her office's legal analysis is protected by attorney-client privilege, in a construct where both the attorney and the "client" work for the City of Burlington. Protected by privilege, she has asserted, the legal analysis "must thus be treated as confidential."

Since the law went onto effect in March, Progressive Party members of the City Council began to have misgivings about its constitutionality. They requested - and received - permission from the city attorney to show the secret legal analysis to an outside counsel, John Franco, who served as a Burlington assistant city attorney from 1982 to 1989, when Bernie Sanders, who is now Vermont's junior U.S. senator, was mayor.

Attorney Franco produced a five-page, single-spaced analysis dated June 4, in which he concluded that "this ordinance is neither lawful nor constitutional." He has reinforced this conclusion with a three-page supplemental analysis.

"Children love secret club houses. They love secrecy even when there's no need for secrecy." - Donna Tartt

Based on Franco's analysis of the ordinance, the five Progressive Party members introduced a resolution at the June 10 council meeting seeking to make the secret city attorney's office memo public.

Democrats fought the motion fiercely. Democrat Norm Blais, an attorney, made it personal, speculating irrelevantly that the resolution derived from "politicians' remorse." Blais went on to argue that "this is not a question of transparency ... [there are] sound reasons for having privileged communications with an attorney."

While attorney-client privilege is widely recognized in law, Blais made no effort to explain how it applied to this governmental situation, where Democratic mayor Miro Weinberger had made a campaign promise of greater governmental transparency.

Council member Chip Mason, also a Democrat and a lawyer, chaired the committee that held three non-controversial public hearings on the ordinance. At the council meeting he defended the "sanctity" of attorney-client privilege, calling it "not something we should be waiving."

In response to an inquiry to explain how an elected government body could be the legal equivalent of a private corporate client, Mason wrote only that: "There is no dispute that it is protected by the attorney client privilege. The City Council is the client for whom the memorandum was prepared."

"The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them." - Patrick Henry

The Progressives' resolution to make the secret memo public lost in an 8-5 vote, with the majority comprising all six of the council's Democrats, its only Republican, and its only Independent. The council then unanimously referred the issue to committee.

After the vote, City Attorney Blackwood offered to prepare a new legal analysis of the ordinance for public consumption. She did not explain why releasing the secret analysis wouldn't conserve public resources and be just as useful.

There is as yet no rebuttal by the city council or the city attorney's office to Attorney Franco's assessment. As it stands, unchallenged, his critique is devastating, finding that the city has acted in violation of both the Vermont Constitution and the U.S. Constitution.

"The best weapon of a dictatorship is secrecy, but the best weapon of a democracy should be the weapon of openness." - Niels Bohr

Some of Franco's arguments, all of which he supports with case law citations, include:

  • Vermont law requires municipalities to have authorizing legislation from the state legislature before enacting a law such as the no trespass ordinance. Burlington has no such authorization, leaving the ordinance without legal authority.

  • Under the law, Burlington does not "own" its streets, nor does it control them except as such control is delegated by the state. The streets quite literally belong to the people and no government may legally banish people from the streets without stringent adherence to constitutional standards.

  • As Franco writes, "Our ordinance allows Burlington officials to issue what effectively are prior restraints on the exercise of an otherwise lawful fundamental constitutional right, and to discriminate among 'offenders' with broad and virtually unfettered discretion to banish some, but not all, offenders and for varying lengths of time. "

  • The city ordinance fails to set any standards for guidance in its application, enforcement, or appeal.

  • The ordinance violates the U.S. Constitution's requirement of due process of law. "Due process requires notice of the proposed action, notice of the City's factual basis therefore, and an opportunity to be heard before it takes effect. Our ordinance provides none of that."

  • The ordinance offers no effective judicial review. It contradicts and preempts several state laws. And the disposition of its penalties is left in the hands of a panel of untrained non-lawyers from whom there is no provision for further appeal.

"The very word 'secrecy' is repugnant in a free and open society; and we are as a people inherently and historically opposed to secret societies, to secret oaths, and to secret proceedings." - John F. Kennedy



Reader Supported News is the Publication of Origin for this work. Permission to republish is freely granted with credit and a link back to Reader Supported News.

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Does the Government Understand the 4th Amendment? Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=14516"><span class="small">David Sirota, Salon</span></a>   
Monday, 17 June 2013 13:02

Sirota writes: "Let's say for argument's sake that you for some reason do not believe an executive branch official blatantly perjuring himself before Congress is a serious crime, even though that same executive branch aggressively prosecutes allegations of perjury in similarly high profile cases."

The U.S. flag behind barbed wire at Guantanamo Bay, Cuba. (photo: unknown)
The U.S. flag behind barbed wire at Guantanamo Bay, Cuba. (photo: unknown)


Does the Government Understand the 4th Amendment?

By David Sirota, Salon

17 June 13

 

NSA argues that it has "probable cause" to surveil us at all times - meaning we're all terrorist suspects. What?

et's say for argument's sake that you for some reason do not believe an executive branch official blatantly perjuring himself before Congress is a serious crime, even though that same executive branch aggressively prosecutes allegations of perjury in similarly high profile cases.

Let's also say that you simply accept at face value the Government's unverified assertion that it has halted "systemic" illegal/unconstitutional surveillance by the National Security Administration. And let's say that you still believe such an assertion even though a few years after it was aired 1) the Director of National Intelligence admitted illegal surveillance was still taking place and 2) Mother Jones reports that an 86-page court ruling "determined that the government had violated the spirit of federal surveillance laws and engaged in unconstitutional spying."

Let's for a moment set aside all those questions about the strong probability of criminal lawbreaking that were so powerfully raised first by the Guardian's NSA series, then by the Washington Post, by Bloomberg News and then by the Associated Press. Let's instead get to the heart of the huge constitutional principle at hand - the matter of probable cause.

To review: When the NSA goes to the FISA court to get the kind of warrant for metadata it obtained in the recently disclosed Verizon case, the agency is implicitly acknowledging that such surveillance requires judicial oversight. In such an acknowledgement, the NSA is admitting that even with an outdated 1979 Supreme Court ruling, it knows it cannot just mass collect metadata with no warrants whatsoever.

Thus, when the NSA is successful in getting such a warrant from the FISA court, both the agency and the court are implicitly asserting that such a warrant meets the constitution's Fourth Amendment requirement that warrants are only issued when there is "probable cause."

That requirement, of course, is not vague. Unlike many other amendments that deliberately left wiggle room for ongoing interpretation, the Constitution's Fourth Amendment is inarguably set in stone in declaring that in the United States "no warrants shall issue but upon probable cause." The inflexibility of that language was no accident - colonists' backlash to the British monarchy's use of general no-cause warrants was one of the main factors sparking the American Revolution. Consequently, as the Electronic Frontier Foundation shows, the founders sculpted the constitution to explicitly outlaw those boundless, no-cause general warrants.

Such general warrants, of course, are precisely the kind of warrants Edward Snowden's disclosures showed the FISA court is giving to the NSA. Indeed, as the original Guardian report showed, that court gave the NSA a warrant to obtain the phone records not only of specific individuals the agency had genuine reason to believe are engaging in terrorist activities. On the contrary - the court gave the NSA a warrant to obtain "on an ongoing daily basis...all call detail records or 'telephony metadata' created by Verizon for communications between the United States and abroad (and) wholly within the United States, including local telephone calls."

In a congressional floor speech late last week, Democratic U.S. Rep. Alan Grayson (FL), a lawyer, explained the conflict between this kind of general warrant and the Fourth Amendment's probable cause requirement, and highlighted the inherent contradictions of the government's limited public arguments (emphasis added):

When the government seizes your phone records, unless you happen to be Osama Bin Laden or someone close to him, there is no reason why the government would believe or have reason to believe probable cause that you've committed a crime or you're going to commit a crime or you have any evidence about someone committing a crime. There's no probable cause here...

This really is the essence of the matter. Because if you ask the NSA for justification, they'll say: Well, it's legal. What do you mean it's legal?

According to their published statements, including a statement by their Director last Saturday, they maintain that it's legal because of a single Supreme Court case decided in 1979 that said that the government, specifically local police authorities, could acquire the phone records of one person once...Because the Supreme Court says that, at that point, the government could acquire the phone records of one person once, the NSA is maintaining that its entire program is legal and that it can acquire the phone records of everyone, everywhere, forever. That is a farce.

Grayson is basically arguing that the kind of boundless general warrant the NSA is using to justify its mass "ongoing" surveillance cannot possibly comply with the Fourth Amendment's mandate that warrants only be issued when the government has probable cause.

In our current understanding of "probable cause" - whereby it applies only to warrants against specific individuals suspected of criminal activity - the Florida congressman is undoubtedly right (as is the ACLU, which has filed a federal lawsuit in the aftermath of the Snowden disclosures). However, that current understanding is really what's at issue here. That's because in claiming the FISA court's mass-surveillance warrants comply with the Fourth Amendment, the NSA, the Obama administration and Obama partisans are by definition arguing that the NSA has a legitimate "ongoing" probable cause to conduct mass surveillance. That is, they are effectively claiming the government has a legitimate "ongoing" probable cause not to believe specific individuals may be engaging in terrorist activity, but instead to believe all of us may be engaging in such activity.

Put another way, NSA defenders' argument that the FISA court's mass-surveillance warrants comply with the Fourth Amendment boils down to this: no matter who we are or what we do, the government has probable cause to automatically consider all of us suspects all the time.

Is such a perpetual population-wide presumption of criminality legitimate? Does the executive branch really have "ongoing" probable cause to view the entire citizenry as potential criminals worthy of judiciary-sanctioned surveillance? These are some of the huge questions that the Supreme Court has used technicalities to try to avoid.

Similarly, they are questions that Obama officials don't want to have to answer, likely because they (in part) don't want to have to argue in public that yes, they believe all Americans should be considered suspects and that therefore the government has probable cause for surveillance. They don't want to publicly make such an argument because they know it would almost certainly be politically unpopular. This may be one of the reasons the administration has fought to keep its legal rationale for such surveillance secret.

Clearly, though, despite both the reluctance of the Supreme Court and the political fears of the Obama administration, all of this needs to be debated and adjudicated in the open - and not in mealy-mouthed talking points but in explicit terms. After all, this is what is actually being discussed in coded language when surveillance proponents flippantly claim that the NSA's mass surveillance is constitutional. Underneath deceptively reassuring newspeak, they are forwarding the grotesque idea that the government has a legitimate probable cause to presume that we are all suspects.

Now, finally, it's time for that newspeak to end and for America to decide if that's the kind of government and legal presumption we really want.


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The Making of a Global Security State Print
Written by <a href="index.php?option=com_comprofiler&task=userProfile&user=6396"><span class="small">Tom Engelhardt, TomDispatch</span></a>   
Monday, 17 June 2013 13:01

Engelhardt writes: "It's become common since 9/11 to speak of a 'national security state.' But if a week of ongoing revelations about NSA surveillance practices has revealed anything, it's that the term is already grossly outdated."

Surveillance cameras are only one part of the growing collection of surveillance technology being implemented in the US. (photo: Kodda/Shutterstock.com)
Surveillance cameras are only one part of the growing collection of surveillance technology being implemented in the US. (photo: Kodda/Shutterstock.com)


The Making of a Global Security State

By Tom Engelhardt, TomDispatch

17 June 13

 

s happens with so much news these days, the Edward Snowden revelations about National Security Agency (NSA) spying and just how far we’ve come in the building of a surveillance state have swept over us 24/7 -- waves of leaks, videos, charges, claims, counterclaims, skullduggery, and government threats. When a flood sweeps you away, it’s always hard to find a little dry land to survey the extent and nature of the damage. Here’s my attempt to look beyond the daily drumbeat of this developing story (which, it is promised, will go on for weeks, if not months) and identify five urges essential to understanding the world Edward Snowden has helped us glimpse.

1. The Urge to be Global

Corporately speaking, globalization has been ballyhooed since at least the 1990s, but in governmental terms only in the twenty-first century has that globalizing urge fully infected the workings of the American state itself. It’s become common since 9/11 to speak of a “national security state.” But if a week of ongoing revelations about NSA surveillance practices has revealed anything, it’s that the term is already grossly outdated. Based on what we now know, we should be talking about an American global security state.

Much attention has, understandably enough, been lavished on the phone and other metadata about American citizens that the NSA is now sweeping up and about the ways in which such activities may be abrogating the First and Fourth Amendments of the U.S. Constitution. Far less attention has been paid to the ways in which the NSA (and other U.S. intelligence outfits) are sweeping up global data in part via the just-revealed Prism and other surveillance programs.

Sometimes, naming practices are revealing in themselves, and the National Security Agency’s key data mining tool, capable in March 2013 of gathering “97 billion pieces of intelligence from computer networks worldwide,” has been named “boundless informant.” If you want a sense of where the U.S. Intelligence Community imagines itself going, you couldn’t ask for a better hint than that word “boundless.” It seems that for our spooks, there are, conceptually speaking, no limits left on this planet.

Today, that "community" seeks to put not just the U.S., but the world fully under its penetrating gaze. By now, the first “heat map” has been published showing where such information is being sucked up from monthly: Iran tops the list (14 billion pieces of intelligence); then come Pakistan (13.5 billion), Jordan (12.7 billion), Egypt (7.6 billion), and India (6.3 billion). Whether you realize this or not, even for a superpower that has unprecedented numbers of military bases scattered across the planet and has divided the world into six military commands, this represents something new under the sun. The only question is what?

The twentieth century was the century of “totalitarianisms.” We don’t yet have a name, a term, for the surveillance structures Washington is building in this century, but there can be no question that, whatever the present constraints on the system, “total” has something to do with it and that we are being ushered into a new world. Despite the recent leaks, we still undoubtedly have a very limited picture of just what the present American surveillance world really looks like and what it plans for our future. One thing is clear, however: the ambitions behind it are staggering and global.

In the classic totalitarian regimes of the previous century, a secret police/surveillance force attempted, via every imaginable method, including informers, wire tappers, torture techniques, imprisonment, and so on to take total control of a national environment, to turn every citizen’s life into the equivalent of an open book, or more accurately a closed, secret file lodged somewhere in that police system. The most impressive of these efforts, the most global, was the Soviet one simply because the USSR was an imperial power with a set of disparate almost-states -- those SSRs of the Caucasus and Central Asia -- within its borders, and a series of Eastern European satellite states under its control as well. None of the twentieth-century totalitarian regimes, however, ever imagined doing the same thing on a genuinely global basis. There was no way to do so.

Washington’s urge to take control of the global communications environment, lock, stock, and chat room, to gather its “data” -- billions and billions of pieces of it -- and via inconceivably powerful computer systems, mine and arrange it, find patterns in it, and so turn the world into a secret set of connections, represents a remarkable development. For the first time, a great power wants to know, up close and personal, not just what its own citizens are doing, but those of distant lands as well: who they are communicating with, and how, and why, and what they are buying, and where they are travelling, and who they are bumping into (online and over the phone).

Until recently, once you left the environs of science fiction, that was simply beyond imagining. You could certainly find precursors for such a development in, for instance, the Cold War intelligence community’s urge to create a global satellite system that would bring every inch of the planet under a new kind of surveillance regime, that would map it thoroughly and identify what was being mapped down to the square inch, but nothing so globally up close and personal.

The next two urges are intertwined in such a way that they might be thought as a single category: your codes and theirs.

2. The Urge to Make You Transparent

The urge to possess you, or everything that can be known about you, has clearly taken possession of our global security state. With this, it’s become increasingly apparent, go other disturbing trends. Take something seemingly unrelated: the recent Supreme Court decision that allows the police to take a DNA swab from an arrestee (if the crime he or she is charged with is “serious”). Theoretically, this is being done for “identification” purposes, but in fact it's already being put to other uses entirely, especially in the solving of separate crimes.

If you stop to think about it, this development, in turn, represents a remarkable new level of state intrusion on private life, on your self. It means that, for the first time, in a sure-to-widen set of circumstances, the state increasingly has access not just -- as with NSA surveillance -- to your Internet codes and modes of communication, but to your most basic code of all, your DNA. As Justice Antonin Scalia put it in his dissent in the case, “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” Can global DNA databases be far behind?

If your DNA becomes the possession of the state, then you are a transparent human being at the most basic level imaginable. At every level, however, the pattern, the trend, the direction is the same (and it’s the same whether you’re talking about the government or giant corporations). Increasingly, access to you, your codes, your communications, your purchases, your credit card transactions, your location, your travels, your exchanges with friends, your tastes, your likes and dislikes is what’s wanted -- for what’s called your “safety” in the case of government and your business in the case of corporations.

Both want access to everything that can be known about you, because who knows until later what may prove the crucial piece of information to uncover a terrorist network or lure in a new network of customers. They want everything, at least, that can be run through a system of massive computers and sorted into patterns of various potentially useful kinds. You are to be, in this sense, the transparent man or transparent woman. Your acts, your life patterns, your rights, your codes are to be an open book to them -- and increasingly a closed book to you. You are to be their secret and that “you” is an ever more global one.

3. The Urge to Make Themselves Opaque

With this goes another reality. They are to become ever less accessible, ever more impenetrable, ever less knowable to you (except in the forms in which they would prefer you to know them). None of their codes or secrets are to be accessed by you on pain of imprisonment. Everything in the government -- which once was thought to be “your” government -- is increasingly disappearing into a professional universe of secrecy. In 2011, the last year for which figures are available, the government classified 92 million documents. And they did so on the same principle that they use in collecting seemingly meaningless or harmless information from you: that only in retrospect can anyone know whether a benign-looking document might prove anything but. Better to deny access to everything.

In the process, they are finding new ways of imposing silence on you, even when it comes to yourself. Since 2001, for instance, it has become possible for the FBI to present you with a National Security Letter which forces you to turn over information to them, but far more strikingly gags you from ever mentioning publicly that you got such a letter. Those who have received such letters (and 15,000 of them were issued in 2012) are legally enjoined from discussing or even acknowledging what’s happening to them; their lives, that is, are no longer theirs to discuss. If that isn’t Orwellian, what is?

President Obama offered this reassurance in the wake of the Snowden leaks: the National Security Agency, he insisted, is operating under the supervision of all three branches of the government. In fact, the opposite could be said to be true. All three branches, especially in their oversight roles, have been brought within the penumbra of secrecy of the global security state and so effectively coopted or muzzled. This is obviously true with our ex-professor of Constitutional law and the executive branch he presides over, which has in recent years been ramping up its own secret operations.

When it comes to Congress, the people’s representatives who are to perform oversight on the secret world have been presented with the equivalent of National Security Letters; that is, when let in on some of the secrets of that world, they find they can’t discuss them, can’t tell the American people about them, can’t openly debate them in Congress. In public sessions with Congress, we now know that those who run our most secret outfits, if pushed to the wall by difficult questions, will as a concession respond in the “least untruthful manner” possible, as Director of National Intelligence James Clapper put it last week.

Given the secret world’s control over Congress, representatives who are horrified by what they’ve learned about our government’s secrecy and surveillance practices, like Democratic Senators Ron Wyden and Mark Udall, can only hint at their worries and fears. They can, in essence, wink at you, signal to you in obscure ways that something is out of whack, but they can’t tell you directly. Secrecy, after all.

Similarly, the judiciary, that third branch of government and other body of oversight, has, in the twenty-first century, been fully welcomed into the global security state’s atmosphere of total secrecy. So when the surveillance crews go to the judiciary for permission to listen in on the world, they go to a secret court, a Foreign Intelligence Surveillance (FISA) court, locked within that secret world. It, in turn, notoriously rubberstamps whatever it is they want to do, evidently offering no resistance whatsoever to their desires. (Of the 6,556 electronic surveillance requests submitted to the court in Obama’s first term in office, for instance, only one was denied.) In addition, unlike any other court in America, we, the American people, the transparent and ignorant public, can know next to nothing about it. And you know perfectly well why: the overriding needs of secrecy.

What, though, is the point of “oversight” if you can’t do anything other than what that secret world wants you to do?

We are, in other words, increasingly open to them and they are increasingly closed to us.

4. The Urge to Expand

As we’ve known at least since Dana Priest and William Arkin published their stunning series, “Top Secret America,” in the Washington Post in 2010, the U.S. Intelligence Community has expanded post-9/11 to levels unimaginable even in the Cold War era. Then, of course, it faced another superpower, not a small set of jihadis largely located in the backlands of the planet. It now exists on, as Arkin says, an “industrial scale.” And its urge to continue growing, to build yet more structures for surveillance, including a vast $2 billion NSA repository in Bluffdale, Utah, that will be capable of holding an almost unimaginable yottabyte of data, is increasingly written into its DNA.

For this vast, restless, endless expansion of surveillance of every sort and at every level, for the nearly half-million or possibly far more private contractors, aka “digital Blackwater,” now in the government surveillance business -- about 70% of the national intelligence budget reportedly goes to the private sector these days -- and the nearly five million Americans with security clearances (1.4 million with top security clearances, more than a third of them private contractors), the official explanation is "terrorism." It matters little that terrorism as a phenomenon is one of the lesser dangers Americans face in their daily lives and that, for some of the larger ones, ranging from food-borne illnesses to cars, guns, and what’s now called “extreme weather,” no one would think about building vast bureaucratic structures shrouded in secrecy, funded to the hilt, and offering Americans promises of ultimate safety.

Terrorism certainly rears its ugly head from time to time and there’s no question that the fear of some operation getting through the vast U.S. security net drives the employees of our global security state. As an explanation for the phenomenal growth of that state, however, it simply doesn’t hold water. In truth, compared to the previous century, U.S. enemies are remarkably scarce on this planet. So forget the official explanation and imagine our global-security-state-in-the-making in the grips of a kind of compulsive disorder in which the urge to go global, make the most private information of the citizen everywhere the property of the American state, and expand surveillance endlessly simply trumps any other way of doing things.

In other words, they can’t help themselves. The process, the phenomenon, has them by the throat, so much so that they can imagine no other way of being. In this mood, they are paving the way for a new global security -- or rather insecurity -- world. They are, for instance, hiking spending on “cybersecurity,” have already secretly launched the planet’s first cyberwar, are planning for more of them, intend to dominate the future cyber-landscape in a staggering fashion, continue to gather global data of every sort on a massive scale, and more generally are acting in ways that they would consider criminal if other countries engaged in them.

5. The Urge to Leak

The massive leaks of documents by Bradley Manning and Edward Snowden have few precedents in American history. Daniel Ellsberg’s Pentagon Papers leak is their only obvious predecessor. They are not, however, happenstances of our moment. They are signs of what’s to come. If, in surveillance terms, the urge to go global and impose ultimate secrecy on both the state’s secrets and yours, to prosecute whistleblowers to the maximum (at this point usually via the Espionage Act or, in the case of Manning, via the charge of “aiding the enemy,” and with calls of “treason” already in the air when it comes to Snowden), it’s natural that the urge to leak will rise as well.

If the surveillance state has reached an industrial level of operations, and ever more secrets are being brought into computer systems, then vast troves of secrets exist to be revealed, already cached, organized, and ready for the plucking. If the security state itself goes global, then the urge to leak will go global, too.

In fact, it already has. It’s easy to forget that WikiLeaks was originally created not just for American secrets but any secrets. Similarly, Manning uploaded his vast trove of secrets from Iraq, and Snowden, who had already traveled the world in the service of secrecy, leaked to an American columnist living in Brazil and writing for a British newspaper. His flight to Hong Kong and dream of Icelandic citizenship could be considered another version of the globalizing impulse.

Rest assured, they will not be the last. An all-enveloping atmosphere of secrecy is not a natural state of being. Just look at us individually. We love to tell stories about each other. Gossiping is one of the most basic of human activities. Revealing what others don’t know is an essential urge. The urge, that is, to open it all up is at least as powerful as the urge to shut it all down.

So in our age, considering the gigantism of the U.S. surveillance and intelligence apparatus and the secrets it holds, it’s a given that the leak, too, will become more gigantic, that leaked documents will multiply in droves, and that resistance to regimes of secrecy and the invasion of private life that goes with them will also become more global. It’s hard from within the U.S. to imagine the shock in Pakistan, or Germany, or India, on discovering that your private life may now be the property of the U.S. government. (Imagine for a second the reaction here if Snowden had revealed that the Pakistani or Iranian or Chinese government was gathering and storing vast quantities of private emails, texts, phone calls, and credit card transactions from American citizens. The uproar would have been staggering.)

As a result of all this, we face a strangely contradictory future in which ever more draconian regimes of secrecy will confront the urge for ever greater transparency. President Obama came into office promising a “sunshine” administration that would open the workings of the government to the American people. He didn’t deliver, but Bradley Manning, Edward Snowden, and other leakers have, and no matter how difficult the government makes it to leak or how hard it cracks down on leakers, the urge is almost as unstoppable as the urge not to be your government’s property.

You may have secrets, but you are not a secret -- and you know it.


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