Patriot or Traitor? Views on Bradley Manning's Treatment Differ

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If I refused to volunteer, I should be called a traitor, I am well aware of that- but that would not make me a traitor. The unanimous vote of the sixty millions could not make me a traitor. I should still be called a patriot, and, in my opinion, the only one in the whole country.

 -Mark Twain


Ask me in five years -- or 10 or 20 -- whether Army Pvt. Bradley Manning is a patriot or a traitor for allegedly turning over all those secret files and documents to Wikileaks' Julian Assange. All I really know today is that the nation is sharply divided on the topic and probably always will be. The chasm may be only a little smaller when it comes to the treatment Manning has received from his military jailers since he was placed in Stateside custody nine months ago. Some call it torture. Others yawn and change the channel.

I am one of those who bridges that particular gulf. I don't consider Manning a hero for what he allegedly did. Not at all. But I don't like the way he is being treated either. I think that military officials are, for lack of a technical term, fucking with Manning unreasonably, if not unlawfully, while he awaits trial in a military brig. While I am not willing to go as far as the New York Times' editorial board, which this week called Manning's treatment "abuse," or the Los Angeles Times' editorial board, which this week called Manning's treatment "punishment," I argued for too long against the Bush Administration's ghastly treatment of terror law detainees to suddenly go soft now on the Obama White House and Pentagon.

That's not to say I agree with P.J. Crowley, either. The State Department spokesman lost his job last week after calling Manning's treatment by the Pentagon "ridiculous and counter-productive and stupid." It may or may not be. But even if it is we are all doing ourselves a disservice if we isolate the Manning case and consider it differently from other cases just because it happens to track, at the highest levels, fundamental First Amendment principles like free speech and government transparency. A person can be a hero and a criminal at the same time, after all. It happens all the time in America.

One complaint about the government's treatment of Manning has to do with the aggressive approach of his military prosecutors. They've evidently overcharged him, throwing in all sorts of claims and causes. So what? Prosecutors almost always overcharge criminal defendants. It happens every day in this country, in federal and state court. It is part of the kabuki dance that is our justice system. Manning's lawyers now will try to whittle down those charges before trial -- something that criminal defense attorneys do all the time -- and will likely succeed on some level in doing so. Just because he's now charged with "aiding the enemy," in other words, doesn't mean he'll be tried on that charge or convicted of it.

Another complaint from Manning's supporters has to with his post-arrest treatment. He's in solitary confinement, he wasn't allowed to sleep during the day, his guards took his clothes at night. These are, indeed, disturbing allegations. And yet they are of a form often made all over the country by lawyers on behalf of prisoners who are subject to Special Administrative Measures, the draconian restrictions upon prisoner's rights (both before and after trial) imposed after the September 11 terror attacks. I'm not sure that Manning is being treated that much better or that much worse than any of those men and women. But I am sure that the story of his confinement by the military is not a unique one. Pre-trial detention, which our courts have consistently countenanced, humiliates prisoners all the time.

I suppose this is one of those instances where what you think of a particular defendant probably dictates what you think of his current situation. People who consider Manning a heroic whistleblower are more likely to consider him a victim of shameful government excess.  For them, the nature of Manning's alleged crime, the patent object of it, was so brave and noble and valuable that it demands the sort of official respect that wasn't given to, say, John Walker Lindh, the so-called "American Taliban, who pleaded guilty in 2002 to two relatively minor terror-related charges. Lindh was on special administrative measures for nearly eight years after he was captured hiding in a basement at Mazir-i-Sharif. Life is unfair, President John F. Kennedy once said. 

People who consider Manning a villain, on the other hand, are probably more likely to think that the charges against him are warranted and that he is getting what he deserves in military custody. They see a young soldier, sworn to an oath, and they see allegations of leaking important information that the young soldier's superiors, all the way up the chain of command, wanted to keep private. No more. No less. Manning's trial might ultimately turn upon his motives and intent -- why he did what he allegedly did. But from what we now know publicly I'm not sure there's going to be much dispute over whether he actually did transfer those files. That fact alone is enough to get millions of American past their sanctified (yet wholly underrespected) presumption of innocence.

Contrasting perceptions about Manning are likely to last long after he goes to trial and beyond even the point at which the revelations he allegedly brought into view are fully considered and absorbed by the rest of the world. Mark Twain would have loved this story, of a soldier who became a patriot to some for being a traitor to others. But I'm pretty sure Twain would have reminded us that Manning isn't the first and won't be the last incarcerated man in America to bear the sting of the government's heavy hand.

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Andrew Cohen is a contributing editor at The Atlantic, 60 Minutes' first-ever legal analyst, and a fellow at the Brennan Center for Justice. He is also chief analyst for CBS Radio News and has won a Murrow Award as one of the nation's leading legal journalists. More

Cohen is the winner of the American Bar Association’s 2012 Silver Gavel Award for his Atlantic commentary about the death penalty in America and the winner of the Humane Society’s 2012 Genesis Award for his coverage of the plight of America’s wild horses. A racehorse owner and breeder, Cohen also is a two-time winner of both the John Hervey and O’Brien Awards for distinguished commentary about horse racing.

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