On Monday, Charlie Savage drew an implicit comparison between the treatment of Muslim Army Capt. James Yee, who The Washington Times wrote at the time was to be charged with “sedition, aiding the enemy, spying, espionage and failure to obey a general order,” and Private Bradley Manning, who is accused of stealing classified information given to WikiLeaks.
That report turned out to be inaccurate. Captain Yee was never charged with any of those crimes, and the national security case against him collapsed. While the Army did eventually charge him with mishandling classified information — by taking papers home and transporting them without proper covers — that charge was later dropped.
Still, Captain Yee spent 76 days locked up in pretrial confinement, mostly in a Navy brig in South Carolina alongside terrorism suspects being held without trial as “enemy combatants.” Much of that time, he was held under maximum-security conditions, where he was let out of his cell in shackles for only one hour per day and placed in leg irons when meeting his lawyer.
On Wednesday, Pentagon spokesman Geoff Morrell responded to allegations, first reported by Glenn Greenwald, that Manning is being held in abusive conditions. Morrell claims there's nothing unusual about how Manning is being treated, stating that "assertions by liberal bloggers, or network reporters or others that he is being mistreated, or somehow treated differently than others, in isolation, are just not accurate." From DoD:
He's not being held in solitary confinement. That's a misnomer, among many in the reporting of this case. What I -- let me describe how Private First Class Manning is being held. He is not in solitary confinement. He is not in isolation. He is in max -- he is a maximum-custody detainee in a prevention-of-injury status. He is not on suicide watch. He is being held in the same quarter section with other pretrial detainees. He's allowed to watch television. He's allowed to read newspapers. He's allowed one hour per day of exercise.
He is in a cell by himself, but that is like every single other pretrial detainee at the brig. It just so happens that the configuration of the brig is that every individual is confined to his or her own cell. He's being provided well-balanced, nutritious meals three times a day. He receives visitors and mail, and can write letters. He routinely meets with doctors, as well as his attorney. He's allowed to make telephone calls. And he is being treated just like every other detainee in the brig.
Military-law expert Eugene Fidell, who represented Yee, is a frequent source of mine, so I called him to ask about what he thought of Manning's treatment compared to Yee's.
"Yee was treated as if he was an unlawful combatant," Fidell said. "He was blindfolded, he was giving headphones to keep out sound, he was being treated like the man in the iron mask. I don't think that's the same thing.” Fidell did note that, as NBC reported on Monday, Manning appears to have been inappropriately placed on suicide watch by the brig commander rather than by medical personnel, a decision the military is now investigating.
“I don't understand why a person who is thought to be in an unstable mental condition, if that's the case, is not in a locked ward in a hospital," Fidell said. Manning has been on suicide watch and prevention of injury watch at various times during his confinement, according to his attorney David E. Coombs, despite recommendations that he be taken off both and moved to medium from maximum security confinement from the brig's forensic psychiatrist. “Mostly I think we’re owed an explanation, and I don’t think we’ve gotten one yet,” Fidell says. Indeed, given the fact that government investigators seem to be unable to link Manning to WikiLeaks Founder Julian Assange, an explanation of why Manning was placed on suicide watch would seem to be important.
Fidell blamed Manning's circumstances in part on the military justice system, which, unlike the civilian justice system, does not have standing judges that can handle such matters. In the military, courts-martial have to be created by a convening authority. "If there were a trial judge overseeing this process, this would have unfolded differently," Fidell says. "It's a good illustration of why there should be a standing courts-martial system in this country." There is a speedy trial requirement in the UCMJ of 120 days, but currently no judge has jurisdiction over the actual conditions of Manning's confinement.
Separate from the question of whether solitary confinement is experienced as torture -- and there's a lot of evidence that it is -- is whether or not Manning's treatment is different from others being held in the brig, and whether the conditions of his confinement are being arbitrarily altered as a kind of preemptive punishment for crimes he hasn't been convicted of yet. With a standing courts-martial, issues with the conditions of his confinement could be decisively resolved.
