• March 24, 2011
    The United States and Torture
    Interrogation, Incarceration, and Abuse
    Marjorie Cohn, editor

    By Marjorie Cohn, a professor at Thomas Jefferson School of Law, past president of the National Lawyers Guild, and deputy secretary general of the International Association of Democratic Lawyers. Cohn edited The United States and Torture: Interrogation, Incarceration and Abuse, a collection of essays.
    Army Pfc. Bradley Manning, who is facing court-martial for leaking military reports and diplomatic cables to WikiLeaks, is being held in solitary confinement in Quantico brig in Virginia. Each night, he is forced to strip naked and sleep in a gown made of coarse material. He has been made to stand naked in the morning as other inmates walked by and looked. As journalist Lance Tapley documents in his chapter on torture in the supermax prisons in The United States and Torture, solitary confinement can lead to hallucinations and suicide; it is considered to be torture. Manning's forced nudity amounts to humiliating and degrading treatment, in violation of U.S. and international law.

    Nevertheless, President Barack Obama defended Manning's treatment, saying, "I've actually asked the Pentagon whether or not the procedures . . . are appropriate. They assured me they are." Obama's deference is reminiscent of President George W. Bush, who asked "the most senior legal officers in the U.S. government" to review the interrogation techniques. "They assured me they did not constitute torture," Bush said.

    The order for Manning's nudity apparently followed what he described as a sarcastic comment he made to guards after their repeated harassment of him regarding how he was to salute them. Manning said that if he were intent on strangling himself, he could use his underwear or flip-flops.

    "In my 40 years of hospital psychiatric practice, I've never heard of something like this," said Dr. Steven Sharfstein, a former president of the American Psychiatric Association. "In some very unusual circumstances, when people are intensely suicidal, you might put them in a hospital gown. ... But it's very, very unusual to be in that kind of suicide watch for this long a period of time."

  • March 14, 2011
    P.J. Crowley issued a statement late yesterday regarding his resignation as Chief State Department spokesman. Crowley resigned after calling the military's treatment of WikiLeaks suspect Bradley E. Manning "counterproductive and stupid," The Washington Post reports.

    In part, Crowley said:

    The unauthorized disclosure of classified information is a serious crime under U.S. law. My recent comments regarding the conditions of the pre-trial detention of Private First Class Bradley Manning were intended to highlight the broader, even strategic impact of discrete actions undertaken by national security agencies every day and their impact on our global standing and leadership. The exercise of power in today's challenging times and relentless media environment must be prudent and consistent with our laws and values.

    Given the impact of my remarks, for which I take full responsibility, I have submitted my resignation as Assistant Secretary for Public Affairs and Spokesman for the Department of State.

    Crowley authored an article for the official journal of ACS, The Harvard Law & Policy Review (HLPR), dedicated to "ideas and recommendations" for a new administration. The article, "Homeland Security and the Upcoming Transition: What the Next Administration Should Do to Make Us Safe at Home," is available here.

    Think Progress has more on Crowley here.

  • January 4, 2011
    Spurred by the disclosure of classified government information by WikiLeaks Congress is considering a broad measure that if enacted would undermine free speech rights, writes constitutional law scholar Geoffrey R. Stone in an op-ed for The New York Times.

    The bill, pending in both chambers, would make it a crime for anyone to "knowingly and willfully" disseminate information "prejudicial to the safety or interest of the United States." Stone, a law professor at the University of Chicago and chair of the ACS Board, says that while the measure "may be constitutional as applied to government employees who unlawfully leak such material to people who are unauthorized to receive it, it would plainly violate the First Amendment to punish anyone who might publish or otherwise circulate the information after it has been leaked. At the very least, the act must be expressly limited to situations in which the spread of the classified information poses a clear and imminent danger of grave harm to the nation."

    Stone continues:

    The clear and present danger standard has been a central element of our First Amendment jurisprudence ever since Justice Oliver Wendell Holmes Jr.'s 1919 opinion in Schenk v. United States. In the 90 years since, the precise meaning of ‘clear and present danger' has evolved, but the animating principle was stated brilliantly by Justice Louis D. Brandeis in his 1927 concurring opinion in Whitney v. California. The founders ‘did not exalt order at the cost of liberty,' wrote Brandeis; on the contrary, they understood that ‘only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. Such ... is the command of the Constitution. It is, therefore, always open to Americans to challenge a law abridging free speech and assembly by showing that there was no emergency justifying it.'

    In December, Professor Stone testified before the U.S. House Judiciary Committee on the bill, which is dubbed the "Securing Human Intelligence and Enforcing Lawful Dissemination Act," or SHIELD Act. His written testimony before the committee is available here.

  • December 17, 2010
    Guest Post

    By Stephen I. Vladeck, a professor at American University Washington College of Law. Vladeck testified at yesterday's House Judiciary Committee Hearing (pictured) on the legal and constitutional issues raised by WikiLeaks. Video of the full hearing is available here.
    One of the most refreshing things about yesterday's House Judiciary Committee hearing on "The Espionage Act and the Legal and Constitutional Issues Raised by WikiLeaks," at which I was one of the seven witnesses, was the focus of the conversation. Rather than the WikiLeaks bashfest I initially feared that the hearing might turn into, an overwhelming majority of the conversation (and of the Members' questions) focused on prospective reforms to federal espionage, whistleblower, and classification laws, and not just for the "next" WikiLeaks situation. Instead, folks seemed to take seriously the myriad ways in which the vagueness and ambiguity of the current Espionage Act ultimately redounds to the benefit of no one (a point that Abbe Lowell, Ken Wainstein, and I each elaborated upon in our testimony).

    If one theme came through in particular, it was the need for federal law to formally distinguish between three distinct classes of cases: (1) traditional espionage, where a spy steals national security secrets in order to benefit a foreign power; (2) unauthorized leaking by government employees; and (3) the retention and retransmission of classified information by private citizens with no intent to harm national security or benefit a foreign power. With regard to the first category, I think most were in agreement that, although the key is a strong and precise specific intent requirement, such a requirement would go a long way toward both obviating any First Amendment concerns and limiting the statute to that conduct that really is classical espionage, with appropriately harsh corresponding penalties.