an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Yochai Benkler and I invite members of the academic legal community to join us in signing the following statement, asking the Administration either publicly to justify, or end, the humiliation and mistreatment of Private Bradley Manning, the suspected whistleblower who is said to have leaked classified government documents to Wikileaks.
If you'd like to add your signature, please send your name and institutional affiliation to firstname.lastname@example.org. Signatories added below in periodic updates.
UPDATE:Our initial draft relied on news reports in the major news outlets. Comments we received since then lead us to think that two facts may be overstated in the original draft: 1. The instance of forced nudity overnight and in morning parade apparently occurred once. The continuing regime apparently commands removal of Pvt. Manning's clothes and his wearing a "smock" at night. 2. The shackling apparently occurs when Private Manning is moved from his cell to the exercise room, but not while walking during the one hour of exercise.
Other responses we have received suggest that there are claims of myriad other abuses that make conditions worse in various ways than we describe. We do not, and cannot, seek to adjudicate these factual claims. The conflicting responses underscore the need for a public, transparent, and credible response to the reported abuse, and cessation of those among them that cannot be justified.
Private Manning’s Humiliation
Bradley Manning is the soldier charged with leaking U.S. government documents to Wikileaks.
He is currently detained under degrading and inhumane conditions that are illegal and immoral.
For nine months, Manning has been confined to his cell for 23 hours a day. During his one remaining hour, he can walk in circles in another room, with no other prisoners present. He is not allowed to doze off or relax during the day, but must answer the question “Are you OK?” verbally and in the affirmative every five minutes. At night, he is awakened to be asked again, “are you OK” every time he turns his back to the cell door or covers his head with a blanket so that the guards cannot see his face. During the past week he was forced to sleep naked and stand naked for inspection in front of his cell, and for the indefinite future must remove his clothes and wear a "smock" under claims of risk to himself that he disputes.
The sum of the treatment that has been widely reported is a violation of the Eighth Amendment’s prohibition of cruel and unusual punishment, and the Fifth Amendment’s guarantee against punishment without trial. If continued, it may well amount to a violation of the criminal statute against torture, defined as, among other things, “the administration or application… of… procedures calculated to disrupt profoundly the senses or the personality.”
Private Manning has been designated as an appropriate subject for both Maximum Security and Prevention of Injury (POI) detention. But he asserts that his administrative reports consistently describe him as a well-behaved prisoner who does not fit the requirements for Maximum Security detention. The Brig psychiatrist began recommending his removal from Prevention of Injury months ago. These claims have not been publicly contested. In an Orwellian twist, the spokesman for the brig commander refused to explain the forced nudity “because to discuss the details would be a violation of Manning’s privacy.”
The Administration has provided no evidence that Manning’s treatment reflects a concern for his own safety or that of other inmates. Unless and until it does so, there is only one reasonable inference: this pattern of degrading treatment aims either to deter future whistleblowers, or to force Manning to implicate Wikileaks founder Julian Assange in a conspiracy, or both.
If Manning is guilty of a crime, let him be tried, convicted, and punished according to law. But his treatment must be consistent with the Constitution and the Bill of Rights. There is no excuse for his degrading and inhumane pre-trial punishment. As the State Department’s PJ Crowly put it recently, they are “counterproductive and stupid.” And yet Crowley has now been forced to resign for speaking the plain truth.
The Wikileaks disclosures have touched every corner of the world. Now the whole world watches America and observes what it does; not what it says.
President Obama was once a professor of constitutional law, and entered the national stage as an eloquent moral leader. The question now, however, is whether his conduct as Commander in Chief meets fundamental standards of decency. He should not merely assert that Manning’s confinement is “appropriate and meet[s] our basic standards,” as he did recently. He should require the Pentagon publicly to document the grounds for its extraordinary actions --and immediately end those which cannot withstand the light of day. Signed:
Bruce Ackerman, Yale Law School Yochai Benkler, Harvard Law School
Additional Signatories (institutional affiliation, for identification purposes only): Jack Balkin, Yale Law School Richard L. Abel, UCLA Law David Abrams, Harvard Law School Martha Ackelsberg, Smith College Julia Adams, Sociology, Yale University Kirsten Ainley, London School of Economics Jeffrey Alexander, Yale University Philip Alston, NYU School of Law Anne Alstott, Harvard Law School Elizabeth Anderson, Philosophy and Women's Studies, University of Michigan Kevin Anderson, University of California Scott Anderson, Philosophy, University of British Columbia Claudia Angelos, NYU School of Law Donald K. Anton. Australian National University College of Law Joyce Appleby, History, UCLA Kwame Anthony Appiah, Princeton University Stanley Aronowitz, Sociology, CUNY Graduate Center Jean Maria Arrigo, PhD, social psychologist, Project on Ethics and Art in Testimony Reuven Avi-Yonah, University of Michigan Law H. Robert Baker, Georgia State University Katherine Beckett, University of Washington Duncan Bell, Politics and International Studies, University of Cambridge Steve Berenson, Thomas Jefferson School of Law Michael Bertrand, UNC Chapel Hill Christoph Bezemek, Public Law, Vienna University of Economics and Business Michael J. Bosia, Political Science, Saint Michael's College Bret Boyce, University of Detroit Mercy School of Law Rebecca M. Bratspies, CUNY School of Law Jason Brennan, Philosophy, Brown University Talbot Brewer, Philosophy, University of Virginia John Bronsteen, Loyola University Chicago Peter Brooks, Princeton University James Robert Brown, University of Toronto Sande L. Buhai,Loyola Law School, Los Angeles Ahmed I Bulbulia, Seton Hall Law School Susannah Camic, University of Wisconsin Law School Lauren Carasik, Western New England College School of Law Teri L. Caraway, University of Minnesota Alexander M. Capron, University of Southern California, Gould School of Law Michael W. Carroll, Law American University Marshall Carter-Tripp, Ph.D, Foreign Service Officer, retired Jonathan Chausovsky, Political Science, SUNY-Fredonia Carol Chomsky, University of Minnesota Law School John Clippinger, Berkman Center for Internet and Society Andrew Jason Cohen, Georgia State University Lizabeth Cohen, Harvard University Marjorie Cohn, Thomas Jefferson School of Law Doug Colbert, Maryland School of Law Sheila Collins, William Paterson University Nancy Combs, William& Mary Law School Stephen A. Conrad, Indiana University Mauer School of Law Steve Cook, Philosophy, Utica College Robert Crawford,Arts and Sciences, University of Washington Thomas P. Crocker, University of South Carolina Jennifer Curtin, UCI School of Medicine Deryl D. Dantzler, Walter F. Gorge School of Law of Mercer University Benjamin G. Davis, University of Toledo College of Law Rochelle Davis, School of Foreign Service, Georgetown University Wolfgang Deckers, Richmond University, London Michelle M. Dempsey, Villanova University School of Law Wai Chee Dimock, English, Yale University Sinan Dogramaci, Philosophy, University of Texas at Austin Zayd Dohrn, Northwestern University Jason P. Dominguez, Texas Southern University Judith Donath, Fellow, Berkman Center for Internet and Society Norman Dorsen, New York University School of Law Michael W. Doyle, International Affairs, Law and Political Science, Columbia Bruce T. Draine, Astrophysics, Princeton University Jay Driskell,History, Hood College Michael C. Duff, University of Wyoming College of Law Lisa Duggan, Social and Cultural Analysis, NYU Cynthia Fuchs Epstein, Graduate Center,CUNY Stephen M. Engel, PhD, Political Science, Marquette University Simon Evnine, Philosophy, University of Miami Mark Fenster, Levin College of Law, University of Florida Martha Field, Harvard Law School Justin Fisher, Philosophy, Southern Methodist University William Fisher, Harvard Law School Joseph Fishkin, University of Texas School of Law Mark Fishman, Sociology, Brooklyn College Martin S. Flaherty, Fordham Law School George P. Fletcher, Columbia University, School of Law John Flood, Law and Sociology, University of Westminster Michael Forman, University of Washington Tacoma Bryan Frances, Philosophy, Fordham University Katherine Franke, Columbia Law School Nancy Fraser, Philosophy and Politics, New School for Social Research Eric M. Freedman, Hofstra Law School Monroe H. Freedman, Hofstra University Law School Kennan Ferguson, University of Wisconsin, MilWaukee John R. Fitzpatrick, Philosophy, University of Tennessee/Chattanooga A. Michael Froomkin, University of Miami School of Law Gerald Frug, Harvard Law School Louis Furmanski, University of Central Oklahoma James K. Galbraith, LBJ School of Public Affairs, University of Texas at Austin Herbert J Gans, Columbia University William Gardner, Pediatrics, Psychology,& Psychiatry, The Ohio State University Urs Gasser, Harvard Law School, Berkman Center for Internet and Society Julius G. Getman, University of Texas Law School Todd Gitlin, Columbia University Bob Goodin, Australian National University Angelina Snodgrass Godoy, Human Rights, University of Washington David Golove, NYU School of Law James R. Goetsch Jr., Philosophy, Eckerd College Thomas Gokey, Art and Information Studies, Syracuse University Robert W. Gordon, Yale Law School Stephen E. Gottlieb, Albany Law School Mark A. Graber, University of Maryland School of Law Jorie Graham, Harvard University Roger Green, Pol. Sci. and Pub. 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Held, Classics, Connecticut College Kevin Jon Heller, Melbourne Law School Lynne Henderson, UNLV--Boyd School of Law (emerita) Stephen Hetherington, Philosophy, University of New South Wales Kurt Hochenauer, University of Central Oklahoma Lonny Hoffman, Univ of Houston Law Center Michael Hopkins, MHC International Ltd Nathan Robert Howard, St. Andrews Marc Morjé Howard, Government, Georgetown University Kyron Huigens, Cardozo School of Law Alexandra Huneeus, University of Wisconsin Law School David Ingram, Philosophy, Loyola University Chicago David Isenberg, Isen.com Sheila Jasanoff, Harvard Kennedy School Christopher Jencks, Harvard Kennedy School Paula Johnson, Alliant International University Robert N. Johnson, Philosophy, University of Missouri Albyn C. Jones, Statistics, Reed College Lynne Joyrich, Modern Culture and Media, Brown University David Kairys, Beasley Law School Eileen Kaufman, Touro Law Center Kevin B. Kelly, Seton Hall University School of Law Antti Kauppinen, Philosophy, Trinity College Dublin Randall Kennedy, Harvard Law School Daniel Kevles, Yale University Heidi Kitrosser, University of Minnesota Law School Gillian R. Knapp, Princeton University Seth F. Kreimer University of Pennsylvania Law School Alex Kreit, Thomas Jefferson School of Law Stefan H. Krieger, Hofstra University School of Law Mitchell Lasser, Cornell Law School Mark LeBar, Philosophy, Ohio University Brian Leiter, University of Chicago Mary Clare Lennon, Sociology, The Graduate Center, CUNY George Levine,Rutgers University Sanford Levinson, University of Texas Law School Margaret Levi, Pol. 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May, University of South Florida Jamie Mayerfeld, Political Science, University of Washington Diane H. Mazur, University of Florida Levin College of Law Jason Mazzone, Brooklyn Law School Jeff McMahan, Philosophy, Rutgers University Richard J. Meagher Jr., Randolph-Macon College Agustín José Menéndez, Universidad de León and University of Oslo Hope Metcalf, Yale Law School Frank I. Michelman, Harvard University Gary Minda, Brooklyn Law School John Mikhail, Georgetown University Law Center Gregg Miller, Political Science, University of Washington Eben Moglen, Columbia Law School and Software Freedom Law Center Immanuel Ness, Brooklyn College, City University of New York Charles Nesson, Harvard University Joel Ngugi, Law, African Studies, University of Washington Ralitza Nikolaeva, ISCTE Business School, Lisbon University Institute John Palfrey, Harvard Law School James Paradis, Comparative Media Studies, MIT Emma Perry, London School of Economics and Political Science Charles Pigden, University of Otago Adrian du Plessis, Wolfson College, Cambridge University Patrick S. O'Donnell, Philosophy, Santa Barbara City College Hans Oberdiek, Philosophy, Swarthmore College Duane Oldfield, Political Science, Knox College Michael Paris, Political Science, The College of Staten Island (CUNY) Philip Pettit, University Professor of Politics and Human Values, Princeton Frank A. Pasquale, Seton Hall Law School Matthew Pierce, University of North Carolina Charles Pigden, Philosophy, University of Otago Leslie Plachta, MD MPH, Albert Einstein College of Medicine Thomas Pogge, Yale University Giovanna Pompele, University of Miami Joel Pust, Philosophy, University of Delaware Ulrich K. Preuss, Law& Politics, Hertie School of Governance, Berlin Margaret Jane Radin, University of Michigan and emerita, Stanford University Aziz Rana, Cornell University Law School Gustav Ranis, Yale University Rahul Rao, School of Oriental& African Studies, University of London Calair Rasmussen, Affiliation: Political Science, University of Delaware Daniel Ray, Thomas M. Cooley Law School Jeff A. Redding, Saint Louis University School of Law C. D. C. Reeve, Philosophy, University of North Carolina at Chapel Hill Bryan Register, Philosophy, Texas State University Robert B. Reich, University of California, Berkeley Cassandra Burke Robertson, Case Western Reserve University School of Law John A. Robertson, University of Texas Law School Corey Robin, Brooklyn College and the CUNY Graduate Center Clarissa Rojas, CSU Long Beach Kermit Roosevelt, University of Pennsylvania Law School Susan Rose-Ackerman, Law, Political Science, Yale University Norm Rosenberg, History, Macalester College Clifford Rosky, University of Utah Brad R. Roth, Poli. Sci. and Law, Wayne State University Barbara Katz Rothman, Sociology, City University of New York Bo Rothstein Political Science, University of Gothenburg Laura L. Rovner,University of Denver College of Law Donald Rutherford,Philosophy, University of California, San Diego Leonard Rubenstein, JD, Johns Hopkins Bloomberg School of Public Health Chester M. Rzadkiewicz, History, University of Louisiana at Lafayette DeWitt Sage, Flimmaker Cindy Skach, Comparative Government and Law, Oxford William J. Talbott, Philosophy, University of Washington Natsu Taylor Saito, Georgia State University College of Law Dean Savage, Queens College, Sociology, CUNY Kent D. Schenkel, New England Law Kim Scheppele, Princeton Univeristy Ben Schoenbachler, Psychiatry, University of Louisville Jeffrey Schnapp, Harvard University Kenneth Sherrill, Political Science, Hunter College Claire Snyder-Hall, George Mason University Jeffrey Selbin, Yale Law School Wendy Seltzer, Fellow, Princeton Center for Information Technology Policy Jose M. Sentmanat, Philosophy, Moreno Valley College, California Omnia El Shakry, History, University of California Scott Shapiro, Yale University Stephen Sheehi, Languages, Lit. and Cultures, University of South Carolina James Silk, Yale Law School Robert D. Sloane, Boston University School of Law Ronald C. Slye, Law, Seattle University Matthew Noah Smith, Philosophy, Yale University Stephen Samuel Smith, Political Science, Winthrop University John M. Stewart, Emeritus, Psychology, Northland College Peter G. Stillman, Vassar College Alec Stone Sweet, Yale Law School Robert N. Strassfeld, Case Western Reserve University School of Law Mateo Taussig-Rubbo, SUNY-Buffalo Law School Jeanne Theoharis, Brooklyn College of CUNY Frank Thompson, University of Michigan Matthew Titolo, West Virginia University College of Law Massimo de la Torre, University of Hull Law School John Torpey, CUNY Graduate Center Vilna Bashi Treitler, Black& Hispanic Studies, Baruch College, City Laurence H. Tribe, Harvard University David M. Trubek, University of Wisconsin (emeritus) Robert L. 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Zimmer, Professor of Law, Loyola University Chicago Lee Zimmerman, English, Hofstra University Mary Marsh Zulack, Columbia Law School