Monday, March 3, 2014

Comparing Justice: Breivik, Manning and Calley

by Nomad

Let's take a look at three very different crimes and three very different forms of justice. What can we learn from the comparisons between a mass murderer, a whistleblowing soldier and a soldier that committed war crimes? How does justice reflect a society's values and what does it say about a nation's values?

How a nation hands down justice and who it punishes and how it punishes reveals a lot about its values and its people. In fact, I would say that it's a defining benchmark. Where the courts are corrupt is where civilization ends. And where it is justice prevails is where fairness and civilized society flourishes. The law of the jungle was not after all intended to be a model for humanity.

As George Washington reminds us:
The administration of justice is the firmest pillar of government.
With this idea in mind, I thought I'd explore three very different cases to examine how justice was administered and what could be learned about how values change from country to country and over time. 

Breivik in Norway

In the summer of 2011, Anders Behring Breivik conducted a carefully-planned attack on government buildings in Oslo, Norway, which killed eight. While police sifted through the rubble looking for clues, Breivik traveled to camp on the island of Utøya. There he systematically hunted down and murdered 69 victims, mostly teenagers.

According to his 2083: A European Declaration of Independence, Breivik's apparent motive for his acts of terrorism revolved around his far-right militant ideology which included hatred for Islam, feminism, and Zionism.
The tone of the national response to the painful events was set by the prime minister Jens Stoltenberg in his address at the memorial service in Oslo cathedral two days after the tragedy:
"We are still shocked by what has happened, but we will never give up our values," Stoltenberg said. "Our response is more democracy, more openness, and more humanity." Norway, he suggested, would not seek vengeance as America had done after the 9/11 attacks." We will answer hatred with love," he said.
For his part, Breivik maintained throughout his trial that he was sane and, despite much evidence to the contrary, the courts agreed. The trial involved harrowing testimony from survivors and many in Norway criticized whether, in his testimony, Breivik should have been allowed to use the trial to spread his ideas. As one person said, "Why give him the satisfaction of letting him speak freely for almost a week?"

The Finger of Blame

In his closing statement, Breivik was unrepentant about the murder of innocent unarmed teenagers and instead pointed to the lack of free speech and creeping Communism. At one point in his diatribe, he even blamed the TV show Sex and the City for allowing too much sexual freedom to women.
Universal human rights, international law, and the right to self-defense provided the mandate to carry out this self-defense.
Everything has been triggered by the actions of those who consciously and unconsciously are destroying our country. Responsible Norwegians and Europeans who feel even a trace of moral obligation are not going to sit by and watch as we are made into minorities in our own lands. We are going to fight.
Doesn't sound very contrite, does it? As dreadful as it was to have to listen to the man's ravings, other citizens felt that the way Breivik was dealt with was an example of the strength of Norwegian society.

On Aug 24, 2012, a Norwegian court found Breivik guilty of terrorism and premeditated murder and given the maximum sentence of 21 years' imprisonment. 

Here's an image (courtesy of NewsForage) of the prison cell where Breivik will spend the next two decades.

What do you think? Looks comfortable enough. Almost like a dorm room. Many homeless who have committed no atrocities- other than being poor and out of work or alcohol or drug dependent- would gladly accept such an incarceration.

This is, I suppose, what punishment and incarceration look like when you remove vengeance from the equation. The Norwegian case demonstrates, I think, something that is too easily forgotten in American culture. Justice should not be simply an exercise of popular revenge, not simply society taking out its frustrations on individuals.  

Manning in the United States

Right is right, even if everyone is against it, and wrong is wrong, even if everyone is for it ― William Penn

Most of us by now know the basic outlines of the case against Bradley- now Chelsea- Manning. He (I will use this gender pronoun) was arrested on May 27, 2010, accused of passing classified documents to, Manning was first held first in Kuwait and then at the Marine Corps Base Quantico, Virginia. 
Pundits on Fox News and MSNBC declared him a traitor and demanded that he be shot by a firing squad.

Of the thousands of documents Manning passed on, there was a video which became known as Collateral Murder. It shows U.S. Army troops firing upon a group of men in Baghdad from an Apache helicopter. The incident left 11 dead. According to Huffington Post:
A Reuters photographer and his driver were among those killed in the attack. When a good Samaritan came to pick up those injured in the first round of fire, the helicopter unleashed another hail of 30mm bullets on the civilian's van. The driver of that vehicle was killed, and his two children were severely injured. The military initially claimed that the episode had led to the death of nine insurgents and two civilians, though the video suggests that only one person was armed, and had never shot at U.S. troops.

The Pentagon had attempted to block the release of the video after a Reuters a Freedom of Information Act request. So it was only through Manning that the public learned of the incident. Whether the video was evidence of a war crime, an indiscreet use of force, or a wartime blunder is a matter of debate but the fact the military attempted to cover it up is in itself incriminating.
(Remember Nixon and Watergate?)

Before the Circus Began

In pre-trial incarceration, Manning's internment conditions were harsh. First, there was the issue of solitary confinement. Reportedly the order to subject Manning to the harshest form of incarceration, MAX Custody and in Prevention of Injury (POI), came from high command.
The excuse for this treatment, given by the military, was that Manning was considered a suicide risk. However, according to one report:
a Brig psychiatrist became very upset and voiced his concerns, stating something to the effect of, “Sir, I am concerned because if you’re going to do that, maybe you might want to call it something else, because it’s not based on anything from behavioral health.”
The response was revealing:
The senior officer said, “We’ll do whatever we want to do. You [the Brig psychiatrists] make your recommendation and I have to make a decision based on everything else.”
Many felt that the treatment of Manning before his trial amounted to the judicially-sanctioned military- approved torture.According to the Centre for Constitutional Rights:
The devastating psychological and physical effects of prolonged solitary confinement are well documented by social scientists: prolonged solitary confinement causes prisoners significant mental harm and places them at grave risk of even more devastating future psychological harm.
Exposure to such life-shattering conditions clearly constitutes cruel and unusual punishment – in violation of the Eighth Amendment to the U.S. Constitution. Further, the brutal use of solitary has been condemned as torture by the international community.
Even without solitary confinement, the conditions seemed designed to punish the accused rather than simply to hold him. For example, Manning's cell was reportedly 6 × 12 ft  with no window. According to his lawyer, David Coombs, Manning was not allowed to sleep between 5 am (7 am on weekends) and 8 pm, and was made to stand or sit up if she tried to. 
He was required to remain visible at all times, including at night, which entailed no access to sheets, no pillow except one built into her mattress, and a blanket designed not to be shredded. According to the Washington Post, Manning was required to sleep wearing only boxer shorts. The military this measure was taken as part of suicide prevention.

Further, Manning was allowed to walk for up to one hour a day, meals were taken in the cell. Manning was shackled during visits. There was access to television when it was placed in the corridor. He was allowed to keep one magazine and one book. 
Keep in mind this was before his trial ever began.

While Manning was held, the government gave minimal access to his lawyers and other concerned groups.In fact, the conditions of Manning's detention created such a stir that a United Nations Special Rapporteur on torture, Juan E. Mendez, published a report saying the detention conditions had been "cruel, inhuman and degrading." The outcry did move the military to transfer the accused and improve conditions somewhat.
There were other questions arising from his pre-trial treatment, for example, the sheer duration.  PRWatch notes:
The 6th Amendment demands that "in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial." Military law generally requires a trial within 120 days.
According to the Rules of Court Martial 707, any member of the military who is prosecuted must be brought to trial – as measured by the date of his or her arraignment – within a "speedy trial clock" of 120 days of being detained. On this basis, lawyers for Manning called for the case to be dismissed. They cited that Manning had been arrested on 29 May 2010 and the pre-trial hearings had not begun until 16 December 2011. However, the judge in the case, Colonel Denise Lind, was not impressed and ruled that the Manning case was a complex one and, therefore, was an exception. It is really that simple to get around the established law.

The Trial

After more than three years in custody, the military courts finally began the Manning trial. Manning faced the very real possibility of a maximum sentence of 90 years but the government asked for 60 years to act as a deterrent to others. 

Eventually, the judge allowed Manning to plead guilty to lesser charges in exchange for a maximum sentence of 16 years and the defendant was happy to have that option. He pleaded guilty to 10 of the 22 charges. 
In his defense, Manning apologized to the court: 
"I am sorry that my actions hurt people. I'm sorry that they hurt the United States. I am sorry for the unintended consequences of my actions. When I made these decisions I believed I was going to help people, not hurt people."
Compared that to Breivik's responsibility-dodging blame-fest.
While few expected much leniency from the military courts, the punishment was still a staggering blow to Manning. He was sentenced to 35 years' confinement, reduced in rank to Private, made to forfeit of all pay and allowances, and a dishonorable discharge.

Today Manning is confined at the United States Disciplinary Barracks at Fort Leavenworth, Kansas- the U.S. military's only maximum-security facility.

On the left is a photo of what that kind of cell Manning spends his time in.

In comparison, Breivik's cell might be a little too luxurious for most Americans, especially when one considers the crime. But looking at Manning's home from now on, and it is hard not to think that something is out of order.

If you are not convinced that something was amiss, then let's take look back in time.

Another Comparison

Another inmate of this facility - very briefly in his case- included William Calley. If the name sounds  vaguely familiar it should. 

During the Vietnam War, he was convicted for his part in the My Lai Massacre in which between 347 and 504 unarmed South Vietnamese civilians were ordered into a ditch and murdered.

According to the evidence, it was a case a search and destroy mission by soldiers of Charlie Company under Calley's command, but which quickly turned into a bloodbath. The situation might well have been worse if not for the intervention of an American helicopter crew led by Warrant Office Hugh Thompson. (Importantly, thirty years after the events, Thompson and two others were awarded medals for their actions.)
For further reading try here.

Initially, Calley was given a life sentence but, only a day after Calley was sentenced and after well-orchestrated public pressure, President Richard Nixon ordered him transferred from Leavenworth prison to house arrest at Fort Benning. 
The Vietnam War was as unpopular as the Iraq War but most people understood that My Lai, as horrific as it was, was an aberration and not common practice.

That was, perhaps, a different time and a different mentality by the American military. But if Calley, a convicted mass murderer, somehow earned a nod of leniency for his crimes, is it really too much for President Obama to take a more personal interest in the Manning case? 

Ultimately, Calley- who apologized Kiwanis Club in Greater Columbus, Georgia some forty years later - served only three and a half years in house arrest. In gruesome mathematics, that's one year for every one hundred South Vietnamese victims.

But something else somewhat more disturbing.

It's a nearly exactly the same duration that Manning spent in solitary confinement before his trial had even begun.
*   *   *
Looking over these cases, it is hard to know in which case, justice was better served. I'd vote for Breivik but it surely must have required superhuman patience and trust from the families of the victims. I am not sure if I could have stood it.

Still Norway- a society- can be proud of its justice system.

In the Norwegian case, a society, deeply traumatized by inexplicable violence to completely innocent victims, was able to find it in their hearts to accept the court's decision. It accepted justice over revenge. Yes, some might look at his cell and say that he got off better than he deserved but few Norwegians are claiming his punishment is a miscarriage of justice.

The same is not true for Bradley Manning. Around the world can see the outcome for what it is. The decision handed down by the military courts was much more about revenge than punishment. The military, with the Commander in  Chief taking a "hands-off" policy" was allowed to exact its revenge on Manning.

Compared to other cases, the most unjust one seems to have been Manning. No only did the truly guilty in the Collateral Murder case go unpunished but the one who dared to expose the crimes has been robbed of his liberty, his property, and his dignity. Very nearly his life.

If Calley, a convicted mass murderer, can somehow earn a nod of leniency for his crimes (and truly horrific crimes they were), is it really too much for President Obama to take a more personal interest in the Manning case who attempted only to expose war crimes?
Thirty years had to pass before the US government gave a medal to the brave person who tried to stop the massacre in the Vietnam village. Forty years for Calley himself to formally apologize for his role in the matter.

Why must justice for Manning have to wait as long as that? President Obama with a presidential pardon could put an end to this injustice if he cared to.

Related articles