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Guest Columnists
Tuesday, April 12, 2011
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U.S. citizens do not lose constitutional protection by joining military

When current events raise issues covered by our Bill of Rights, members of the Florida Keys Chapter of the American Civil Liberties Union (ACLU) have been asked to write guest opinions about the constitutional sources of our civil rights. For example, Bill McCarthy's guest column on the separation of church and state -- part of the First Amendment -- appeared in The (Key West) Citizen on Feb. 19.

This column looks at how the Fifth and Eighth Amendments apply in the case of Bradley Manning.

Today, this young man sits locked in a dark cell, denied contact with others, exercise, sleep -- even his reading glasses. He has been neither tried nor convicted of any crime. He is neither a foreign national nor a terrorist. And though he's being held by our military, he's not one of the so-called "enemy combatants" held in Guantanamo Bay.

Bradley Manning is a United States citizen and Army soldier. When he was arrested in March 2010 in Iraq, Manning was 22. He allegedly said he'd leaked large amounts of classified material to the secret-spilling website WikiLeaks.

He was arrested and later moved to the U.S. Marine brig at Quantico, Va., where he has been for the past 11 months in highly restrictive pre-trial confinement. Designated a maximum-custody detainee under prevention-of-injury watch, he is confined to his cell for 23 hours a day. He is also being subjected to a number of other restrictions, including sleep deprivation through repeated physical inspections throughout the night; he is told the restrictions are to prevent him from harming himself.

In this "pre-trial confinement," our government is inflicting punishment on Manning. Remember, he's not been convicted of anything -- he has only been accused.

I am worried about his treatment because when our government does something like this, it does so in all our names. I am also concerned because the guarantees in our Constitution are supposed to protect us from punishment before being convicted.

Although less well known than the part about self-incrimination, the Fifth Amendment to the Constitution also says: "No person shall be held to answer for a capital or other infamous crime unless on a presentment or indictment of a grand jury ... nor be deprived of life, liberty, or property, without due process of law."

However, the Fifth Amendment goes on to say: "except in cases arising in the land or naval forces, or in the militias, when in actual service in time of war or public danger."

Since Pfc. Manning was an Army intelligence analyst in Iraq, he does not seem to come under Fifth Amendment protections. But our young men and women do not lose their constitutional protections by signing up for the military. The ACLU has argued that Manning is protected under the Eighth Amendment.

In a March 16 letter to Secretary of Defense Robert Gates, National ACLU Executive Director Anthony Romero wrote: "As a pretrial detainee who has been convicted of no crime, Private Manning may not be subjected to punitive treatment. Based on the reports of Private Manning and his counsel, it is clear the gratuitously harsh treatment to which the Department of Defense is subjecting Private Manning violates fundamental constitutional norms."

The ACLU also wrote: "The Supreme Court has long held that the government violates the Eighth Amendment's ban on cruel and unusual punishment whenever it 'unnecessarily and wantonly inflicts pain.' No legitimate purpose is served by keeping Private Manning stripped naked; in prolonged isolated confinement and utter idleness; ... deprived of any meaningful opportunity to exercise, even in his cell; and stripped of his reading glasses so that he cannot read. Absent any evident justification, such treatment is clearly forbidden by our Constitution."

Manning is currently awaiting a "706 board" inquiry requested by his attorney to determine if he suffered a "severe mental disease or defect" at the time of his alleged leaking. If he's found to have been mentally fit, the case could proceed to the military equivalent of a grand jury. This grand jury may find that, rather than committing a treasonous act, Manning actually performed a service by revealing our country's lax security online and off. Manning said in explaining the how of his act: "Weak servers, weak logging, weak physical security, weak counter-intelligence, inattentive signal analysis ... a perfect storm."

Like all of us, Manning is covered by the Eighth Amendment's prohibition against "cruel and unusual punishment." There should be little doubt that our Constitution protects this young man from the Defense Department's overly severe reaction to seeing the truth.

Rosanne Potter serves on the board of directors of the Florida Keys Chapter of the American Civil Liberties Union.