Private Manning and the Law Professors
Are there some core claims about the rule of law that every lawyer, and more particularly, every law professor knows? To give an affirmative answer to this question would seem to be relatively unproblematic. Moreover, a paradigmatic example of such shared knowledge is the principle that accused criminals are innocent until proven otherwise. In a recent interview, President Obama challenges the universality of this claim. Speaking about Private Bradley Manning’s continued pre-trial detention, he said: “We’re a nation of laws. We don’t let individuals make their own decisions about how the laws operate. He broke the law.” Of course, the Commander in Chief cannot proclaim that “he broke the law” and also affirm the principle that every law professor knows. One of these is inconsistent with the other.
Professors Bruce Ackerman and Yochai Benkler published an open letter in the New York Review of Books with signatures from many law professors (including the present writer), calling for the administration to justify publicly the precise grounds for Private Manning’s extraordinary conditions of detention (which include forced nudity, regular sleep disruption, and solitary confinement) and to end any procedures not justified. In so doing, they remind President Obama that he “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.” The question sets up the opposition between what every law professor knows and what President Obama, the former professor, does. The assumption is that President Obama views the initial claim—innocent until proven guilty—as unproblematic. There is another sentence in his claim that no one else has discussed that provides an interesting clue about the viability of this assumption. President Obama also said “We don’t let individuals make their own decisions about how the laws operate.” Who is the “we” who has power to “let” or not, and who are the individuals whom “we” do not “let” make their own decisions about laws?
As a straightforward matter, Obama’s claim is a complete mystery. As all law professors know, individuals in various official capacities make their own decisions about “how the laws operate” all the time. Think here of John Yoo and his infamous “torture memo.” He made a decision, with the help of Jay Bybee and others, about “how the laws operate” to allow the President authority to torture detainees, despite the presence of a statute forbidding the practice, as well as a treaty or two. President Obama must make a number of decisions about “how the laws operate” in his treatment of Private Manning. But President Obama is part of the “we.” Putting aside the unpleasant possibility that Obama meant the “royal we,” perhaps he meant only to make a distinction between citizens and officials. Citizens obey what officials instruct as “how the laws operate.” “We” officials do not let “you” individual citizens make decisions about how the laws operate. But, this can’t be right, can it? Citizens do not merely obey the laws, but also participate in their formation and interpretation. Citizens consent to law formation and legal practices that give meaning to their “own decisions about how the laws operate.” They make claims on their representatives to fashion policies based on their views of how the laws do, and should, operate. But, Private Manning is simply one citizen, not a citizen group, not a voting aggregate, and certainly not “We the People.” So perhaps “we” do not let any specific non-official individual make his or her “own decisions about how the laws operate.” Except for when we do. Daniel Ellsberg, whose actions in releasing the Pentagon Papers parallel Private Manning’s alleged actions, has spoken out on behalf of the recent disclosures. He made his own, individual, decision for the good of the polity. Countless individuals in the civil rights movement did the same. But times are different. We all know this. “We” executive officials have greater power and citizens more diffuse participatory prospects. “We” officials claim the power to “let” (or not “let”) citizens have a say in “how the law operates.” Thus, “we” officials get to decide on matters of guilt or innocence or any other principle of law as “they” see fit. “We don’t let” the community—much less the community of law professors—make shared decisions about how the law operates. If this is what President Obama meant, then it is a troubling assertion indeed.
Yet, there is one remaining meaning to President Obama’s assertion. Perhaps “we” refers to the American people. “We [the People] don’t let individual [officials] make their own decisions about how the laws operate.” In a twist of irony, the law professor in President Obama may have the right assertion—vibrant democracy requires sunlight so that individual officials do not get to make their own, private decisions about how our public laws operate—tethered to the wrong object. The problem is not the disclosure Private Manning allegedly made, but rather the failure to acknowledge the full meaning of the other sentence in Obama’s claim—“We’re a nation of laws.” Indeed. And “we” the American people need to know what the individual officials are doing to uphold all our laws. The law professor Obama knows this. Since Private Manning is now being moved to a different facility with prospects for better conditions, we can only hope that the law professors led by Ackerman and Benkler have successfully reminded President Obama of some principles the law professor Obama already knows.