Cruel and Unusual: The Torture of Bradley Manning

by Gerard Emershaw

Private First Class Bradley Manning was found guilty of 19 of 21 charges at his court martial. While he was acquitted of aiding the enemy by knowingly giving out intelligence through indirect means, he was convicted of many serious charges including six counts of espionage. The sentencing phase of Manning's court martial began on July 31, and his punishment will be known very soon. While it is obvious that Manning is a hero and not a traitor, this is not about that issue. What is even more obvious is that Bradley Manning was subjected to cruel and unusual punishment in violation of the Eighth Amendment while he was detained at Marine Corps Base Quantico, Virginia. 

In late January of 2011, Manning was placed on suicide watch. This decision was punitive rather than therapeutic. Manning had protested against being issued conflicting commands by guards and being castigated for responding to commands with "yes" instead of "aye," and the guards decided to arbitrarily strike back. The guards removed Manning's clothing and eyeglasses and forced him to remain in his 6 x 12 foot windowless solitary confinement cell for 24 hours a day. Later, in March of 2011, after being removed from suicide watch, Manning was again arbitrarily punished in the name of psychiatric welfare after he made a sarcastic comment. Manning had been under the Prevention of Injury (POI) status during his time in the brig at Quantico. POI status entails being forced to sleep wearing only boxer shorts. After Manning dared to exercise freedom of speech and make a sarcastic quip about suicide, he was punished by again having his boxer shorts removed and forced to sleep naked and present himself naked for inspection in the morning by his guards. 

The Eighth Amendment states: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted."

What exactly constitutes "cruel and unusual punishment?" Much of the debate concerning the Eighth Amendment has centered around capital punishment, but the issue here is whether Manning's treatment while in pre-trial detention at Quantico constitutes "cruel and unusual punishment." 

In Furman v. Georgia (1972), a case concerning the constitutionality of the death penalty, JusticeBrennan wrote a concurring opinion—there were five concurring opinions in the case but no controlling majority opinion—providing providing plausible criteria for determining whether a punishment is "cruel and unusual": 

There are, then, four principles by which we may determine whether a particular punishment is "cruel and unusual." The primary principle, which I believe supplies the essential predicate for the application of the others, is that a punishment must not, by its severity, be degrading to human dignity. The paradigm violation of this principle would be the infliction of a torturous punishment of the type that the Clause has always prohibited. Yet "[i]t is unlikely that any State at this moment in history," Robinson v. California, 370 U.S. at 666, would pass a law providing for the infliction of such a punishment. Indeed, no such punishment has ever been before this Court. The same may be said of the other principles. It is unlikely that this Court will confront a severe punishment that is obviously inflicted in wholly arbitrary fashion; no State would engage in a reign of blind terror. Nor is it likely that this Court will be called upon to review a severe punishment that is clearly and totally rejected throughout society; no legislature would be able even to authorize the infliction of such a punishment. Nor, finally, is it likely that this Court will have to consider a severe punishment that is patently unnecessary; no State today would inflict a severe punishment knowing that there was no reason whatever for doing so. In short, we are unlikely to have occasion to determine that a punishment is fatally offensive under any one principle. 

After listing the few cases where the Supreme Court held a punishment to be unconstitutional as "cruel and unusual" under the Eighth Amendment, Brennan continues: 

The function of these principles, after all, is simply to provide means by which a court can determine whether a challenged punishment comports with human dignity. They are, therefore, interrelated, and, in most cases, it will be their convergence that will justify the conclusion that a punishment is "cruel and unusual." The test, then, will ordinarily be a cumulative one: if a punishment is unusually severe, if there is a strong probability that it is inflicted arbitrarily, if it is substantially rejected by contemporary society, and if there is no reason to believe that it serves any penal purpose more effectively than some less severe punishment, then the continued infliction of that punishment violates the command of the Clause that the State may not inflict inhuman and uncivilized punishments upon those convicted of crimes. 

One may object that Manning's treatment at Quantico was not technically a punishment because he had yet to be convicted of any crime and because his ill treatment was carried out by guards on the order of a superior officer rather on the order of a legally sanctioned sentencing judge. However, why must a punishment be an official, legally sanctioned punishment in order to be a punishment? To exempt prison guards or the like from the Eighth Amendment is to invite the most barbarous of torture. The cornerstone of the American criminal justice system is that a defendant is innocent until proven guilty beyond a reasonable doubt. The ill treatment of detainees who have yet to be convicted of any crime is, in many important ways, even more problematic than the ill treatment of convicted criminals. Therefore, the Eighth Amendment must protect both the presumed innocent and the guilty from cruel and unusual punishment. 

Was Manning's punishment unusually severe? What was his "offense?" He made a sarcastic comment regarding suicide to his jailers. When did gallows humor become a crime rather than an exercise of the natural right to free speech? Free speech should not be punished at all, and it should especially not be punished in the cynical guise of psychiatric care. 

Was Manning's punishment arbitrary? It certainly seemed to be based upon nothing other than the whim of Quantico brig commander Chief Warrant Officer 2 Denise Barnes. There was no due process of any kind. Furthermore, there is no indication that Barnes is a physician or has any medical training at all. What gives her the credentials to decide that Manning was a suicide risk? 

Is Manning's punishment substantially rejected by contemporary society? Despite having more relaxed mores concerning nudity, contemporary American society regards forced nudity as an unacceptable form of punishment. If a parent were to punish his or her child by such means, we would likely call it abuse. If a school were to punish a student with forced nudity, his or her parents would rightfully seek to sue the school and press criminal charges against the school officials responsible. The Nazis employed forced nudity in concentration camps and the Soviets did the same in the Gulags, and this is not lost on Americans today. Humiliation in the form of forced nudity is not issued as a punishment by any American court of law. This is no coincidence. 

If—for the sake of argument—Manning did deserve punishment for his sarcastic quip, is there any reason to believe that it serves any penal purpose more effectively than some less severe punishment? If Manning deserved punishment, it is obvious that something like a stern verbal chastisement or a loss of some privilege would have been just as effective in curbing his sarcasm as the depraved psycho-sexual torture that his jailers employed. Therefore, it is obvious that according to Justice Brennan's criteria, Manning was in fact subjected to cruel and unusual punishment, and therefore, his natural rights under the Eighth Amendment were violated. 

Manning is not alone in such treatment. Many prisoners—who have yet to be convicted of any crime—held in American jails are subjected to cruel and unusual punishment. For example, notorious Maricopa County Sheriff Joe Arpaio proudly punishes his prisoners—many of whom have yet to have their day in court—by humiliating them with striped jail uniforms and pink underwear and treating them worse than the county's police dogs by feeding them dubious bologna sandwiches and forcing them to endure stiflingly hot temperatures in the "tent city" jail in Phoenix. In such cases, the cruel and unusual pre-trial punishments arbitrarily imposed by jailers can be viewed as akin to torture during the Inquisition. Such torture makes it far more likely that even an innocent defendant will accept a plea bargain in order to put an end to the cruel treatment. Therefore, such ill treatment of prisoners in jails -- whether military or civilian -- cannot be accepted by a civilized society.