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.

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6 Responses

  1. Orin Kerr says:

    Thomas, perhaps this is a stupid question, but can you explain how you know that President Obama made these remarks in response to a question about the conditions of Manning’s pre-trial detention? You say that he did, and some bloggers have made that claim. But as far as I can tell, the original video of him saying this is only a 66-second excerpt in which we hear Obama discussing the Manning case *generally* but without inclusion of the question that Obama was asked to which he was responding.

    Here’s the video, which apparently was taken at some sort of fundraiser:

    If we assume that Obama was asked about the conditions of Manning’s pre-trial detention, and this 66-second clip is Obanma’s response, then I agree Obama’s response is troubling (indeed, rather nonsensical). But if we assume that Obama was asked why Manning is being *prosecuted*, then this 66-second clip becomes a rather unexceptional.

    Perhaps I am being too quick to defend Obama. But I’d be interested to know how you know what the question was that Obama was responding to, which I think is important to assessing his statement,

  2. Incidentally, the letter, while initiated by the aforementioned law professors, wasn’t only signed by law professors, although no doubt it was their names and areas of expertise which gave the letter whatever weight it might have possessed.

  3. TJ says:

    I think you are stretching the principle too far. The principle that “accused criminals are innocent until proven otherwise” is invoked when applying punishment. President Obama is perfectly free to say that Manning is guilty, just like the prosecutor (who is going to be, after all, Obama’s subordinate) is free to do so. The problem occurs not because of what Obama says, but the fact that Obama is already applying the punishment. But picking on Obama’s language detracts from the bigger point.

  4. Joe says:

    “is perfectly free to say that Manning is guilty”

    apparently not. Nixon got in trouble saying Manson was guilty. The idea him saying it changes the ball game is pretty lame, imho, since it is not as if we don’t know what he believes. Manning’s treatment underlines this. But, he is legally innocent now and the prosecutor can’t say otherwise. The prosecutor can ask the jury or judge to declare him guilty, but that’s it. Manning’s (mis)treatment is much more important.

  5. Thomas Crocker says:

    Thank you for the thoughtful comments. Yes, Oren, I think you raise a good point. The video does not let us hear the precise context, and context matters. So, the question about how the President views the innocent until proven guilty principle may be avoided with better context. Your question can first point out the difficulty of taking “unofficial” journalism at face value. I accepted the presentation Glenn Greenwald provided for the video and went immediately into contemplative mode about it. There is also the lingering worry about making too much over off-hand comments made in conversation (they are not official positions, though sometimes they are taken as more indicative of a person’s actual views). But, accepting the less exceptional version–that the President was responding to a question not about Manning’s detention, but about his prosecution–my questions about the other sentence that constructs the relation between a “we” and the “individual” remains. That was the sentence I thought worth contemplating further. I suppose I may not have a clear argument here, but my interest was in Ackerman/Benkler’s invocation of Obama’s status as a law professor, the shared knowledge about the law that status imputes, and the choices he has made regarding treatment of Manning. These all relate to the identity claim of the “we” and the “individuals” Obama makes, or so I thought it worth thinking about. And, I don’t think they depend on a strong claim about the context of what Obama was asked, since they focus on the interestingly ambiguous middle sentence.

    Patrick, you are absolutely right. I do not mean at all to slight the involvement of philosophers and others. Mea culpa if I did. I was playing on Ackerman/Benkler’s search for common ground with Obama as law professors.

  6. Orin Kerr says:

    Thanks, Thomas.