An Op-Ed for MLTF by NLG President David Gespass
The epic Bradley Manning prosecution – now involving two years of pretrial confinement during which the Constitution presumes him innocent while the administration, the Army and the media do all they can to render that presumption null and void – is emblematic of the changes that the United States has undergone during my sentient lifetime. Sad to say, current trends do not bode well, as the balance between “national security” and the people’s right to know the machinations of government is tipping ever more precipitously in favor of the former.
It is almost inevitable that, once one president asserts some claim of executive privilege, however bogus, succeeding presidents, regardless of pledges of openness and transparency, will seek to expand it. Richard Nixon unsuccessfully claimed privilege in refusing to turn over his White House tapes, but that did not stop Bill Clinton from raising similar claims when trying to quell the storm over Monica Lewinsky.
But those claims had to do with personal wrongdoing on the parts of the presidents. Following 9/11, the claims have had to do with the work of government. The assertions of privilege by George W. Bush and Barack Obama reflect efforts to keep citizens from being informed of the most important functions of government. President Obama, following his promise of a more open and transparent administration, has taken the assertion of executive privilege to unprecedented lengths. Attorney General Eric Holder claimed, in the wake of the assassination of American citizen Anwar Al-Awlaki, that “The Constitution guarantees due process, not judicial process” and that the secret process whereby the President decides who should live and who should die, with neither explanation nor review, is all that is now due.
That such a claim can even be made with a straight face and given any measure of credence demonstrates how far from constitutional values and the rule of law the United States has drifted over the past 40 years. Even worse, perhaps, is that the resistance to such assertions of executive authority is almost absent in the media and has not been taken up as a cause célèbre among broad swaths of the population. That is not to say that no one has spoken out. Rather, presidential claims of such unrestricted authority, which not that long ago would have been given no credence, now enjoy broad appeal and are questioned with distressing infrequency.
Take, for instance, the case of PFC Manning, who is facing charges tantamount to treason for allegedly releasing classified information often embarrassing to the government and which, in some cases, has provided evidence of possible war crimes. Manning is facing life in prison with no end in sight to his pretrial confinement, several months of which were in solitary. Because of the problems his defense lawyers have had getting relevant information from the prosecution, no trial date can even be set, much less assured. While many of us have defended the things Manning is alleged to have done, there has hardly been a wellspring of support for him. Worse, there has been little condemnation of the government for the things he is alleged to have revealed.
By contrast, when the Pentagon Papers were revealed in 1971 and published in The New York Times, the men who shone the light on them, Daniel Ellsberg and Anthony Russo, enjoyed widespread support that made their prosecutions difficult. Ultimately, the espionage cases against them were dismissed because of government misconduct, but it cannot be gainsaid that the favor in which they were held by many, if not most, Americans was a major factor in their ultimate victory.
Even more remarkable is the case of the unknown burglars who exposed the FBI’s notorious Counter-Intelligence Program (COINTELPRO). The few members of this band broke into a small FBI office in Media, Pennsylvania. They found evidence of illegal FBI surveillance and dirty tricks which they promptly turned over to the news media. The ensuing scandal was not about people who unquestionably acted illegally, but over the greater illegality of COINTELPRO. No serious effort was ever made to identify the burglars, much less to prosecute them. All the fire was directed at the FBI.
One must ask, why has Bradley Manning been treated so differently? Any number of factors may be at play. First, he allegedly turned over his information, not to established media giants like The New York Times and The Washington Post, but to Wikileaks. Could it be possible that the mass media did not assign as much significance to his case because they were not directly affected or subject to government response? After all, the Times had to defend its publication of the Pentagon Papers up to the Supreme Court.
Moreover, times have changed. While government is under attack as being bloated and intrusive in so many areas, its authority to wage war, legally or otherwise, following September 11, has not been questioned. There was hardly a peep from the mass media questioning the claim that Saddam Hussein had weapons of mass destruction, including nuclear weapons, even though those claims were disputed by weapons inspectors and, as to a nuclear arsenal, deemed unfounded by the International Atomic Energy Agency.
For too many, fear of “terrorism” has overcome devotion to civil liberties. Indeed, in the highest echelons of government, “terrorism” has become the bogeyman that justifies anything, however illegal and antithetical to fundamental human rights standards. It is the ace that trumps all criticism. If patriotism, as Samuel Johnson said, is the last resort of the scoundrel, then the sham justification of every infringement on liberty as “defense of the homeland from terrorism” is the foundation on which that resort is built in today’s United States. And that resort is a political Club Med, where wealth and power meet to make themselves wealthier and more powerful at the expense of the rest of the world.
Bradley Manning is not being prosecuted because his alleged actions damaged the United States, but because they exposed the damage being done to the United States and its people by those who purport to act on their behalf. The government can blithely ignore, or pay blood money for, the death and destruction it wreaks around the world, but since sunlight is the best disinfectant, it will do all it can to keep its infectious practices in a dark cellar.
David Gespass is the president of the National Lawyers Guild, and a founding member of its Military Law Task Force. An attorney in private practice in Birmingham, Alabama, he is also an adjunct professor at University of Alabama School of Law.