Obama should pardon Aaron Swartz … and Bradley Manning

by John Quiggin on January 15, 2013

I was planning this post yesterday, but other events intervened[1]. I woke up this morning to see that Corey had already written my post, but with the opposite conclusion. Corey’s 1905 analogy is a good one. Obama is not a “good father standing above the fray”, but the ruler who gives orders to Cossacks like Carmen M. Ortiz. The vindictive pursuit of Aaron Swartz is of a piece with the Obama Administration’s whole approach to the security state, from drone assassinations to the persecution of whistleblowers (Obama is worse even than Bush in some aspects of his civil liberties record).

But the Czar had choices[2], and so does Obama. Under current procedures, the White House must respond to a petition with 25 000 signatures, and the answer in this case must be “Yes” or “No’. So, this is one of the very few ways that Obama can be pushed to take an explicit stand one way or the another on an issue he prefers to address through leaks and ambiguities.

A pardon for Swartz, however qualified, would undercut the case for severe punishment (including, possibly, the death penalty) of Bradley Manning and others. It would amount to an acceptance that Swartz’ motivation in seeking the free distribution of information was a noble one, and that his offences should have been judged in that light. Perhaps some people would see it as exonerating the state, but I think more would see it as a signal of a new direction, and a precedent to be followed.

A refusal or evasion would serve the same function as the Czar’s orders to his Cossacks in 1905. Those who still believe Obama’s pledge to run the most transparent administration in history would see the reality, and might be moved to protest a bit more.

fn1. Among them, a stoush with a silly Oz politician
fn2. I don’t want to refight the whole “individual in history” debate, but Nicholas could have chosen to meet Father Gapon, could have promised reforms and could have delivered at least some of them. And, in the light of subsequent events, it would have been far better for him, his family, his class, and just about everyone else in Russia had he done so.

{ 142 comments }

1

Patrick 01.15.13 at 9:29 pm

I’m pretty sure that the Obama administration has a standing policy on refusing to answer any petitions on that site when they’re petitions on issues of criminal justice.

https://petitions.whitehouse.gov/response/why-we-cant-comment-bradley-manning

‘The We the People Terms of Participation explain that “the White House may decline to address certain procurement, law enforcement, adjudicatory, or similar matters properly within the jurisdiction of federal departments or agencies, federal courts, or state and local government.” ‘

2

John Quiggin 01.15.13 at 9:36 pm

Pardons are entirely within the power of the President. Still, I wouldn’t be surprised to see them rely on this policy.

3

Harold 01.15.13 at 9:46 pm

He should certainly pardon Bradley Manning and the state should pay restitution for the horrible tortures he has undergone. I think charges have been postumously dropped for Swartz. But in neither case should pardoning or dropping charges have the effect of sweeping prosecutorial malfeasance or the militarization of civil offenses (as in the Swartz case) under the rug. There should be a thorough investigation and the Secret Service and justice departments should open their records to make sure that the US gov. stops eating its own children.

4

Anderson 01.15.13 at 10:09 pm

The utter misfortune for Russia that it was ruled by that man (and that he was devoted to that woman) is really difficult to exaggerate.

5

Thomas 01.15.13 at 10:14 pm

The charming level of naïveté in John’s post is touching, but fails to grapple with the realities of post-9/11 America.

The American justice is working exactly the way it’s supposed to. Post 9/11, America has turned into a Soviet-style national security state with some media and consumer electronics frills as social camouflage. Dissent in post-9/11 has been criminalized, and military weapons are now routinely deployed against non-violent dissenters — as when LRAD sound cannons were used against demonstrators at the Chicago G20 summit.

The constitution has largely been abolished, with the first amendment freedom of assembly clause wiped out by kettling, the freedom of speech clause eliminated by NSA surveillance and pre-emptive kidnapping of suspected subversives (as in the 2008 mass arrests of non-violent protesters prior to the Minneapolis Republican National Convention before they could even protest). The fourth amendment has of course long been erased by asset forfeiture as well as the unconstitutional legalization of universal warrantless wiretapping of all emails, phone calls, tweets, credit card transactions, and so on. The fifth and sixth amendment guarantees of due process have obviously been eliminated with Obama’s order to assassinate Anwar Al-Awlaki, as well the detention of alleged whistleblowers like Bradley Manning for multiple years without charges. The eighth amendment prohibition against cruel and unusual punishment has long been abolished by torture as well as unconstitutional legislation like the Computer Fraud and Abuse Prevention Act, the various unconstitutional criminalizations of copyright infringement, and so forth.

The fourteenth amendment likewise went away at the same time, since it goes without saying that Americans no longer have any civil rights if the U.S. government can wiretap all their communications and transactions and social network interactions without a warrant, detain them indefinitely for the “crime” of non-violent protest, order them kidnapped and held in secret prisons, or tortured, or murdered, without charges and without a trial.

So in post-9/11 America, the entire purpose of current U.S. government law and the American “justice” system is to eat its own children. In post-9/11 America, anyone who shows initiative or imagination must be destroyed. In post-9/11 America, the pegs that stands up must be beaten down. In post-9/11 America, everyone is now guilty by reason of being suspected and suspected subversion or alleged dissent are now punished savagely and swiftly as an example to deter other would-be dissenters.

Swartz and Manning are the first of many. Soon, mass graves will fill with the corpses of despareados — “the disappeared ones.” Economists who wonder why the American economy is floundering will find their answers in the oppression and murder of America’s best and brightest like Aaron Swartz. When a nation moves away from being an open society and sets up a totalitarian surveillance-secret police-paramilitary state in its place, the best and brightest either shut up and stop contributing lest the secret police single them out, or they simply emigrate to other, freer, societies.

America long since passed the last exit ramp to an open society. The only question now involves the issue of how bad the surveillance-secret polie-paramilitary state will become before America collapses in a USSR-style meltdown.

6

Bart 01.15.13 at 10:41 pm

Great idea, now: how do you propose that Obama pardon someone of a crime when that person hasn’t been convicted of one?

7

Substance McGravitas 01.15.13 at 10:58 pm

Richard Nixon couldn’t have been pardoned?

8

John Quiggin 01.15.13 at 10:59 pm

Obviously, I’m not a lawyer. But as far as I can tell, Obama can pardon anyone he wants, for anything, and nobody except the recipient of the pardon has any standing to take action to stop him. Nixon is example of someone pardoned without ever being charged, and there have also been posthumous pardons.

From my reading, if the person being pardoned is alive and rejects the pardon that nullifies it. So, for example, Obama can’t pardon the House Republicans for any crimes involved in defaulting on the national debt, since they wouldn’t consent. But if he pardoned, say, Benedict Arnold, there would be no legal recourse against his action.

Still, it seems likely, as Patrick says, that the Administration will claim policy reasons for not responding.

9

djw 01.15.13 at 11:30 pm

Just to be clear, are you saying that the decision to aggressively prosecute Schwarz was made by Barack Obama, and Ortiz was following his orders? Or is it a weaker claim that as her boss, he bears some share of moral responsibility for her actions?

The weaker claim seems perfectly fair and accurate to me, but it sounds like you’re making the stronger claim, which I see no reason to believe without some sort of specific evidence for it, which I am not aware of.

10

John Quiggin 01.15.13 at 11:47 pm

@djw I’m not saying Obama directly ordered the prosecution, but I am saying that he bears more than formal responsibility (as the boss of a rogue employee) for this. He’s made it clear that his Administration will use the approach exemplified by Ortiz in order to keep control over information (that is, aggressive prosecution of whistleblowers combined with rewards for pro-Administration leakers).

To restate

The vindictive pursuit of Aaron Swartz is of a piece with the Obama Administration’s whole approach to the security state, from drone assassinations to the persecution of whistleblowers

Ortiz didn’t need orders to know that she had Administration backing for the way she abused her office in this and other cases.

11

djw 01.16.13 at 12:02 am

Fair enough; thanks for the reply.

12

William Burns 01.16.13 at 12:19 am

Although he didn’t meet with Father Gapon, promising reforms and delivering on some of them (the establishment of the Duma) was exactly what Nicholas did.

13

Main Street Muse 01.16.13 at 1:29 am

Comparing Swartz to Nixon now? Depressing for so many reasons.

I agree with Corey that: “Asking the state to pardon Swartz doubly empowers and exonerates the state.”

Rather than seek a pardon for a man who was looking at decades in jail for downloading millions of academic papers, activists should lobby Obama to remove the prosecutors who overreached terribly in this case. And activists should lobby Congress to develop laws with consequences that are in line with this crime.

I do not see Obama doing anything to rein in the prosecutorial malfeasance in MA.

14

ifthethunderdontgetya™³²®© 01.16.13 at 1:31 am

By the way, John, Obama is on his way to setting records for fewest pardons granted.

Good thing only guilty people are filling our prisons!

/ sarcasm

15

John Quiggin 01.16.13 at 1:55 am

@William True, I was being a bit telegraphic there. But the message sent by offering reforms in response to a revolution, then taking most of them back, is a bit different from doing so in response to a peaceful protest and keeping your word as far as possible.

16

Tony Lynch 01.16.13 at 2:40 am

Isn’t the very possibility of a Presidential Pardon just another (and by no means simply benign) example of “unitary executive” authoritarianism?

17

Paul Foord 01.16.13 at 3:10 am

A pardon for Bradley Manning would send shock waves through the system. It would be a positive act. A pardon for Aaron Schwarz would IMO be of no benefit.

18

purple 01.16.13 at 3:15 am

Obama agreed and agrees with this policy of harassment. Got naive ?

Obama sees the U.S. as basing its future on being a ‘knowledge economy’. This means restricting knowledge and forcing it on feckless Others at monopoly prices. This restriction of knowledge is also a way (it is hoped) to maintain what is a rapidly disintegrating military advantage.

The way folks go pleading to Obama is beyond ridiculous after 5 years and multiple atrocities.

19

straightwood 01.16.13 at 2:21 pm

The ludicrous fiction that Obama is a “good guy” at heart is all that shelters the bankrupt liberal class from the dark reality of national security state America. We are a nation that has been taught to admire our secret police and fear anyone who challenges authority. Public opinion increasingly favors the torture of captives, travelers meekly line up to be body scanned; and the silence of notionally liberal institutions (universities, media, and the church) is deafening.

Much of this evisceration of American liberalism was accomplished by smiling Barak Obama: the destruction of the anti-war movement; the suppression of whistle-blowers; the enrichment of Wall Street criminals at public expense; and the abandonment of regulatory law enforcement. Behold our great liberal President. When comes such another?

20

SusanC 01.16.13 at 2:37 pm

I really don’t how they can pardon Bradley Manning … even though I’m a wikileaks supporter.

Aaron Swartz was accused of run of the mill computer misuse, no worse than a lot of things students get up to, and I can see a case for declaring it too trivial to prosecute (especially as JSTOR wasn’t calling for his prosecution).

Without predjudice to whether Manning is guilty or not, he is facing much, much more serious charges. Some of us might think he was justified in what he (allegedly) did, but that’s only because we also think the whole government and military is starting to lack legitimacy, such that whistleblowing and disobeying orders is justified. The government cannot possible admit this and stay in power.

The likely way forward is Manning stays in jail, the government looks even less legitimate, more activists are inspired to do something drastic… (Though it’s unclear if there’s the necessary critical mass of unrest for this to properly take off).

21

Rich Puchalsky 01.16.13 at 2:51 pm

“I really don’t how they can pardon Bradley Manning”

The President can pardon anyone. Notable former pardons included the impeached President who put the current President in power, people convicted of treason, people charged with conspiring to murder a former President, people convicted of bank fraud, and people convicted of espionage.

Assuming that you meant that they don’t want to pardon him, well, yes.

22

rea 01.16.13 at 4:57 pm

The Swartz and Manning cases both involve career prosecutors behaving like prosecutors. There is no reason to suspect that what happened in either of these cases involved presidential intervention, and in fact, many of us objected strenuously when the GWB Adminstration started interfering with prosecutorial decisions regarding alleged voting fraud cases.

Swartz pretty clearly committed a crime, and the law as it presently stands at least arguably supported the charges against him. What was shocking about the way Swartz was treated was the way the prosecutors abused their discretion to seek penalties hugely disproportionate to any harm actually done by Swartz–like swatting flies with nuclear weapons.

Manning is in a very different catagory–he doesn’t reallly have much in common with Aaron Swartz. There is a big difference between the claim that scientific research should be freely available online and the claim that the government ought not to have any confidential internal communications with respect to foriegn policy. Remember, what Manning allegedly did was not simply to release, for example, the famous video of US troops shooting civilians, but also, for example, several hundred thousand confidential cables between US Embassies and the State Department. Manning, in other words, seems to have gone well beyond whistle-blowing. In contrast to the situation with Swartz, the serious charges Manning faces are not obvious over-reach.

Manning was mistreated in custody by his jailers, and these responsible for that ought to be punished, although that does not have much to do with the legitimacy of the charges agasint him.

23

straightwood 01.16.13 at 5:54 pm

@22 curiously neglects the intimidation effect. America’s splendid liberal government did its best to break Manning to intimidate the thousands of other potential government leakers and to build a case against Assange. The same dynamic of intimidation was at work in the case of Swartz. This is naked abuse of government power, and no amount of rationalization will sweep it away.

The American plutocracy needs to maintain tight control of information to cover its dirty deeds. Those who threaten that secrecy are enemies of the regime, and they will be punished by all available means: sexual smears, entrapment, excessive charges, and abuse in captivity. This is the reality of how government power is exercised in America’s national security state.

Swartz dared to break the tight control of information at a prominent institution. This was an act of defiance against the power elite. For this, he was to be imprisoned.

24

rea 01.16.13 at 6:20 pm

@23 there is no evidence that Manning’s mistreatment is attributable to anyone other than his immediate jailers. Interventions by higher-ups in local jail mangement ought to be few and far between. And the fact is, as the abuse of Manning became widely known, higher ranks in the Pentagon intervened to stop it.

And more fundamentally, Manning, Assange and the other “information should be free” types ignore the gap between “some things the government keeps secret ought not to be secret” and “the government shouldn’t have any secrets.” If all Manning had leaked was videos of US troops committing war crimes, I’d agree he ought not to be prosecuted. But for example (to quote the Wikipedia article on Manning), “251,287 State Department cables, written by 271 American embassies and consulates in 180 countries, dated December 1966 to February 2010″–well, to claim that was somehow justified and ought not to be prosecuted is to claim that nothing ought ever to be secret under any circumstances. If you want to defend that position, by all means do so, but I don’t think many would agree.

25

Cynthia 01.16.13 at 6:21 pm

Aaron Swartz was pushed to suicide by the Obama administration’s incredibly aggressive persecution for his actions against JSTOR. His beef with JSTOR was that they were a gatekeeper stopping the dissemination of ideas in academia, they charge large fees to the public which stop people getting access to academic papers but pay NOTHING to the Authors in most cases. This is why there is now a movement in academia to boycott JSTOR.

Noam Chomsky addressed many of the issues here, particularly the core, that Obama according to a black women’s group “has no moral center” and on many issues has been worse than both Bush administrations.

Chomsky: The responsibility of privilege

http://www.democraticunderground.com/101791735

26

Steven 01.16.13 at 6:32 pm

rea gets it right.

Manning was not distributing academic material produced under the very assumption that the wide distribution of the knowledge contained therein is a good end in itself, he was distributing state secrets, many of which should have legitimately remained a secret. Unfortunately, he showed no regard for making the types of distinctions that would allow him to stand on principle. I think if he could have released even more harmful, dangerous secrets–meaning ones that endangered the life and limb of US citizens somewhere in the world–he would’ve.

But I actually think Manning’s not guilty. It’s sorta a tautology: if he really thought that this was no big deal, then he is crazy, so he is not guilty by reason of insanity. If he realized it was a big deal, in fact a huge one, to distribute state secrets, but expected to be lauded as a truthseeker and that the power of his act would protect him from its consequences, then he is crazy, so he is not guilty by reason of insanity. In fact, I have yet to hear a compelling Manning-sympathetic version of events that makes sense if he is sane.

Swartz, on the other hand, is a tragic case. Geniuses are often fragile and clearly this was the case with him. It could well be that he was driven to suicide by they way he was treated, or that this treatment hastened his demise. It could also be the case that he would have done it anyway. David Foster Wallace wasn’t facing charges when he ended his life. I don’t think the prosecution intended to drive him to suicide, but I don’t think they would’ve cared too much if they knew they were doing so. All this for information that should be free, indeed that is already nominally “free” to anyone enrolled at a university.

So I think it’s useful to use Aaron’s suicide as a way of keeping the discussion about his overzealous, heavy-handed prosecution alive and reminding those of us who didn’t know him that there was a person at the other end of it. It’s not useful as a means of making this argument stronger, however. The argument is what it is, regardless of whether Aaron is alive or not. It struck me as a highly-principled prank that was meant to make an importnat point. Likewise, it doesn’t benefit by conflation with Manning’s situation. There were not men and women off in the desert whose lives were put in danger by the release of the JSTOR masterial.

27

Steven 01.16.13 at 6:36 pm

“Swartz dared to break the tight control of information at a prominent institution. This was an act of defiance against the power elite. For this, he was to be imprisoned.”

Foucault lives. Did you know there is a video game where you get to run away from him? It’s meant to be futile; he creeps into blog comments, etc., and there’s no escape.

The link: http://www.theparisreview.org/blog/2013/01/10/discipline-and-punish/

28

Ralph H. 01.16.13 at 6:45 pm

The two cases are not at all alike. Schwartz was railroaded by a vengeful institution; Manning railroaded himself. Revealing classified information does carry the potential, however remote, of damaging US military or diplomatic interests and must therefore be upheld as a criminal act, no matter if most of the information disclosed is of little importance or should never have been classified in the first place. That said, Manning’s sentence should not be severe, particularly in light of the harsh treatment he received when first incarcerated.

29

rea 01.16.13 at 6:56 pm

“Aaron Swartz was pushed to suicide by the Obama administration’s incredibly aggressive persecution

The point I made above bears repeating, and will be confrimed by anyone with actual knowledge of the way the Justice Department and USA offices work–the president and his political subordiates ordinarily do not and should not intervene in these matters.

30

straightwood 01.16.13 at 7:04 pm

@23 there is no evidence that Manning’s mistreatment is attributable to anyone other than his immediate jailers.

Of course not. Nobody has to tell the jailers what is good for their careers. Those responsible know how to keep their hands clean, just as they did at Abu Ghraib. The protracted nature of Manning’s mistreatment, despite numerous objections from Army psychiatrists and outside observers, including UN officials, renders random mischief implausible. You would have us believe that denying Manning a speedy trial and shackling him, stripping him, and depriving him of sleep were simple mistakes attributable to a junior official. Nonsense.

31

rea 01.16.13 at 7:12 pm

“Nobody has to tell the jailers what is good for their careers.”

In fact, I doubt very much that it is going to be good for the careers of the NCOs in charge of the jail at Quantico to have had a military judge conclude that they violated regulations in their treatment of Manning.

32

Thomas 01.16.13 at 7:40 pm

Claims that Obama was not responsible for the Aaron Swartz prosecution contradict the known facts. Two days before Swartz’s suicide, the Secret Service took over the investigation. To quote from the suppression motion filed by Swartz’s lawyer:

On the morning of January 4, 2011, at approximately 8:00 am, MIT personnel located the netbook being used for the downloads and decided to leave it in place and institute a packet capture of the network traffic to and from the netbook.4 Timeline at 6. This was accomplished using the laptop of Dave Newman, MIT Senior Network Engineer, which was connected to the netbook and intercepted the communications coming to and from it. Id. Later that day, beginning at 11:00 am, the Secret Service assumed control of the investigation.

33

Thomas 01.16.13 at 7:44 pm

Rea claims @24:

there is no evidence that Manning’s mistreatment is attributable to anyone other than his immediate jailers.

Ich war nur befehle folgt? So now the United States has descended to the Nuremberg defense?

We’ve come a ways in 70 years, haven’t we?

34

Rich Puchalsky 01.16.13 at 7:56 pm

The Secret Service is in charge of investigating many “computer crimes”, and has been for a long time because one of their jobs is to protect the currency, and so they were one of the first governmental agencies to get experience in this area. Saying that Secret Service involvement equates to Obama’s direct involvement is nonsensical.

Obama does have indirect involvement, however, because he sets the overall policy for enforcement of this kind, and he’s been worse than Bush.

35

Pat 01.16.13 at 7:59 pm

Ich war nur befehle folgt? So now the United States has descended to the Nuremberg defense?

I think that’s “Ich hab’ nur Befehlen gefolgt” oder “ausgefuehrt.” And the lesson of Nuremberg was that the fact that a superior gave orders does not excuse the subordinate who carried them out. This is quite the other way: Whether the actions of the subordinate can be attributed to the superior.

(I’m pretty sure we agree on the answer to that question, but you know. Clarity.)

36

rea 01.16.13 at 8:00 pm

“Two days before Swartz’s suicide, the Secret Service took over the investigation. “

@32–you are misreading the year in your quote–the Secret Service took over the investigation in 2011, not 2 days before Swartz killed himself. And the Secret Service is the federal agency charged with investigating computer crimes (by evolution from its original task of investigating counterfeiting and financial crimes–its role in protecting the president came later)–there was nothing unusual about its involvement, and certainly nothing suggesting presidential intervention.

37

straightwood 01.16.13 at 8:20 pm

Brig officials had acknowledged in court that Manning was kept in a windowless cell for 23 hours a day and sometimes stripped of his clothes in order to prevent him from hurting himself or others.

Lind ruled that Manning’s confinement at Marine Corps Base Quantico was “more rigorous than necessary” and said Manning is entitled to have 112 days cut from any prison sentence he receives if convicted.

Lind’s ruling appeared to contradict President Obama’s assertion during a news conference in March 2011 that Manning’s treatment in the brig was “appropriate.”

Source: http://tinyurl.com/beedjtf

Yes, yes, just a matter of misbehaving jailors.

38

rea 01.16.13 at 8:34 pm

@33–actions of a subordinte are fairly attributable to a superior when the subordinate is following orders, or when the superior knows about the actions and does nothing to stop them.

Ordinarily, we don’t want the President to be making decisions about which prisoners in the Quantico brig need to be on suicide watch.

The evidence is that the NCO in charge of the Quantico brig kept Manning on a suicide watch contrary to the recommendations of military psychiatrists and contrary to the regulations. This was reported up the chain of command, and ultimately higher ranks (well short of the president) intervened and ordered Manning transfered to another facility, where he was treated like a normal pretrial detainee. The matter was then raised with the military court handling Manning’s case, which investigated and ruled that Manning had been mistreated.

What’s notably missing in all this is any evidence that Obama intervened to order that Manning be mistreated, or any evidence that the president knew that Manning was being kept on a suicide watch contrary to the recommendation of the psychiatrists and allowed it to continue.

39

Rich Puchalsky 01.16.13 at 9:01 pm

“any evidence that the president knew that Manning was being kept on a suicide watch contrary to the recommendation of the psychiatrists and allowed it to continue”

Of course Obama knew. A UN Special Rapporteur on torture criticized the conditions under which Manning was held, there was intervention by Amnesty International, and it was a contemporaneous political mini scandal. Obama had to have been briefed on it.

40

straightwood 01.16.13 at 9:10 pm

@38

The timeline of Manning’s punitive treatment:

5/26/2010 Arrested in Kuwait

7/29/2010 Moved to Marine brig in Quantico, VA – 6 x 12 foot windowless cell

1/18/2011 Classified as suicide risk – required to remain in cell 24 hours a day

5/20/2012 Transferred to medium-security prison at Ft. Leavenworth

Obama made his bland assurance that Manning’s prison conditions were “appropriate” at a press conference in March of 2011, after repeated objections to his treatment had appeared in the press. The brig commander at Quantico, Colonel Daniel Choike, who testified at the military hearing before military Judge Lind, was fully aware of the conditions of Manning’s treatment. If you continue to believe that what happened to Manning was just random neglect, then you need to become better acquainted with the facts of the case.

In case you have any lingering confusion regarding Obama’s position on prisoner rights, recall that he has signed legislation permitting the indefinite detention of American citizens by the military, without due process of law.

41

rea 01.16.13 at 9:35 pm

straightwood @ 40–you probably have that timeline wrong in one crucial respect–the wikipedia article on Manning says he was transfered on April 20, 2011, not May 20, 2012.

And, what Obama said in March 2011 was this (http://www.nytimes.com/2011/03/12/us/12manning.html):

“With respect to Private Manning, I have actually asked the Pentagon whether or not the procedures that have been taken in terms of his confinement are appropriate and are meeting our basic standards,” Mr. Obama said at a news conference. “They assure me that they are.”

“I can’t go into details about some of their concerns,” he added, “but some of this has to do with Private Manning’s safety as well.”

And, a month later, Manning was transferred.

If anything, what the timeline shows is that when the higher-ups at the Pentagon became aware that Obama was paying attention to this, they acted to stop the mistreatment (while, of course, assuring the president that nothing was wrong).

But, you know, go ahead and beleive that Obama is personally micromanaging the Quantico brig if you want to–it’s far from the craziest thing anyone has ever claimed about the president.

42

hix 01.16.13 at 10:55 pm

Since when is actual sucide risk enough of an excuse to lock away someone in a small room without anything all the time?

43

straightwood 01.16.13 at 11:00 pm

what the timeline shows is that when the higher-ups at the Pentagon became aware that Obama was paying attention to this, they acted to stop the mistreatment

Your feeble efforts to represent Manning as the victim of random malfeasance by “NCOs” is contradicted by the testimony of the commander of the Quantico brig, Colonel Choike. Manning’s harsh imprisonment was in the news for months before his conditions were improved, and the responsible officers had ample opportunity to intervene. They did not. The reason they did not is that a message was being sent to military personnel handling the government’s dirty laundry: disclose classified information and you will be subjected to lengthy detention and abuse before being convicted.

The prosecution/persecution of Aaron Swartz was intended to send a similar message: illegally publish information “owned” by an institution and you will be impoverished and imprisoned, no matter what your justification.

44

Harold 01.16.13 at 11:04 pm

Solitary confinement = torture.

45

Salient 01.17.13 at 12:27 am

rea, I think I disagree with your characterization of those remarks–to me it seems the statement you’ve quoted is literally Obama owning, authorizing, and approving of the entirety of Bradley Manning’s treatment.

Nobody asserts that Obama was, at any time, actually writing, reading, giving, or actively supervising the orders/acts. He authorized them. That’s enough to transfer liability and responsibility to him. (Liability and responsibility are probably not fixed-sum things, so maybe ‘transfer’ is the wrong verb? I dunno.)

One problem with the verb ‘authorize’ is that authorization is usually a passive act, but the kind of authorizations people talk about are noteworthy active acts, somewhat unprecedented and somewhat public. Most other authorizations are boring and routine and ignorable. But still, ‘to authorize’ is a verb that usually belongs in a category containing verbs like ‘to love, to irk, to envy, to approve of, to appreciate’ rather than verbs like ‘to run, to sign, to implement, to order.’

46

Salient 01.17.13 at 12:33 am

…aaand two seconds after posting I realize the most obvious verbs to include in the former list, ‘to accept’ and ‘to permit,’ which are near-synonyms for passive authorization.

47

Amos Batto 01.17.13 at 1:12 am

@rea and Steven,
Your argument that governments have the right to keep some communications secret only holds water if the government isn’t systematically lying to its citizens about what it is doing and isn’t systematically violating international law.

When Manning objected to the fact that US soldiers were rounding up ordinary Iraqis who had committed no crimes and giving them to allies who were torturing them, his superiors told him to shutup. When Manning discovered the video showing the helicopter firing on people who were trying to help the injured in clear violation of the Geneva Convention, his comments to Lamo show that he clearly knew it to be a crime. Manning had a moral duty (and a legal duty under international law) to report these crimes, which supersedes any duty he has as a soldier in the US military. Now we can argue about whether he should have tried harder to report crimes up the chain of command, but we all know that his superiors would have done nothing about the crimes if he had.

I think that most people would agree that Manning did the right thing by turning over evidence of crimes. The real question is whether Manning was justified in giving WikiLeaks *all* the cables. I would argue that Manning was justified. He didn’t have time to analyze all the evidence, but he knew that the US military was systematically committing war crimes on a massive scale. We can argue about whether he should have given this information to WikiLeaks, but you have to admit that WikiLeaks had a proven record of refusing to be intimidated unlike mainstream press operations, so he knew that the evidence would be presented and eventually analyzed. Maybe Manning should have told WikiLeaks to only release cables which show violations of crimes, rather than all the cables, but many of those cables showed how the US was lying to the American public about the war and lying to other governments about other things. Publication of those cables led to several of the rebellions in the Arab Spring. Manning helped millions of people in the MiddleEast to achieve greater freedom.

This quote from Johann Hari of The Independent in London captures the crux of the Manning case:

Manning signed up when he was just 18 believing him would be protecting and defending his country and the cause of freedom. He soon found himself sent to Iraq, where he was ordered to round up and hand over Iraqi civilians to America’s new Iraqi allies, who he could see were then torturing them with electrical drills and other implements. The only “crime” committed by many of these people was to write “scholarly critiques” of the occupation or the new people in charge. He knew torture was a crime under US, Iraqi and international law, so he went to his military supervisor and explained what was going on. He was told to shut up and get back to herding up Iraqis.
Manning had to choose between being complicit in these atrocities, or not. At the age of 21, he made a brave choice — to put human rights before his own interests. He found the classified military documents revealing the US was covering up the deaths of 15,000 Iraqis and had a de facto policy of allowing the Iraqis they had installed in power to carry out torture — and he decided he had a moral obligation to show them to the American people. To prevent the major crime of torturing and murdering innocents, he committed the minor crime of leaking the evidence.

48

John Quiggin 01.17.13 at 5:10 am

@rea I knew about the conditions under which Manning was held, and so did anyone who read the New York Times or any of the dozens of media outlets that reported it
http://www.nytimes.com/2011/03/15/opinion/15tue3.html?_r=0

If Obama manages not to know such things in some official sense, it was in exactly the same way that the Czar managed not to know his subjects were going to be massacred – a system that ensures plausible deniability while still doing what the boss wants.

49

Marc 01.17.13 at 3:13 pm

@48: No. Really, no. “Finding out that your opponents are saying something is being done” is not the same thing as “ordering that thing to be done.” And Obama has plenty of examples where people claim that things are happening when, in fact, they are not.

The New York Times angle probably explains why an aide brought the Manning case up, most likely in a daily news digest prepared for him, and his request to the Pentagon was probably the first action that he took at all on the case. Given the scheduling demands on the President, things have to pretty damn high profile for him to even hear about them, let alone having him twirl his moustache and order mistreatment.

50

rea 01.17.13 at 4:10 pm

@48–the conditions under which Manning was being held were not, as far as I can see, out of line if he really was suicidal. I’ve seen dozens of cases in which, after a prisoner kills himself, the family is asking bitterly, “Why did you let him have shoe laces? Why did you let him have sheets? Why didn’t you check on him more frequently?” Preventing prisoner suicide is a major and well-known problem in the US prison system. And it’s a recipe for disaster if some high ranking political figure is overruling the judgment of the local jail managers on such things, on the basis that people are attacking him politically over how the prisoner is being held. The president can’t possibly make sensible decisions about these things himself–the most he can do is pass an inquiry down the chain of command–which he did.

And of course, the claims being made in this thread (though not, I think, by you) are that Obama intervened to assure that Manning was mistreated, as part of some scheme to deter leakers. The circumstances simply do not supprot that kind of inference.

51

rea 01.17.13 at 4:27 pm

When Manning discovered the video showing the helicopter firing on people who were trying to help the injured in clear violation of the Geneva Convention, his comments to Lamo show that he clearly knew it to be a crime. Manning had a moral duty (and a legal duty under international law) to report these crimes, which supersedes any duty he has as a soldier in the US military.

Quite true.

I would argue that Manning was justified. He didn’t have time to analyze all the evidence, but he knew that the US military was systematically committing war crimes on a massive scale.

Nonsense. You are leaping from “crimes should not be kept secret” all the way to “there should be no secrets, because some of them might be crimes.” Recall that he dumped 250,000 State Department cables–the percentage of those that showed war crimes would have to have been vanishingly small. A privilege to break the law is confined to the circumstances that give rise to the privilege.

Publication of those cables led to several of the rebellions in the Arab Spring.

Not a lot of evidence of that. And in particular, not a lot of evidence that any leaked cables that might have been a factor in the “Arab Spring” were the cables that Manning was justified in releasing because they showed war crimes.

52

Tim Wilkinson 01.17.13 at 4:40 pm

53

rea 01.17.13 at 4:49 pm

And @48 again–you will note that the NY Times article you link contains multiple subsequent corrections. There were a number of things being said at the time about the terms of Manning’s confinement (no TV, no exercise) that turned out to be wrong.

54

rea 01.17.13 at 4:52 pm

@52–it turned out not to be true that Manning was barred from receiving visitors, or from communicating with friends and family.

55

Tim Wilkinson 01.17.13 at 4:56 pm

Furtger to the previous –

http://www.guardian.co.uk/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un

the special rapporteur…stressed in his final conclusions that “solitary confinement is a harsh measure which may cause serious psychological and physiological adverse effects on individuals regardless of their specific conditions.” Moreover, “[d]epending on the specific reason for its application, conditions, length, effects and other circumstances, solitary confinement can amount to a breach of article seven of the international covenant on civil and political rights, and to an act defined in article one or article 16 of the convention against torture.”

He also said that the US government had tried to justify Manning’s solitary confinement by calling it “prevention of harm watch”. Yet the military had offered no details as to what actual harm was being prevented.

Mendez told the Guardian that he could not reach a definitive conclusion on whether Manning had been tortured because he has consistently been denied permission by the US military to interview the prisoner under acceptable circumstances.

The Pentagon has refused to allow Mendez to see Manning in private, insisting that all conversations must be monitored. “You should have no expectation of privacy in your communications with Private Manning,” the Pentagon wrote.

The lack of privacy is a violation of human rights procedures, the UN says, and considered unacceptable by the UN special rapporteur.

56

Salient 01.17.13 at 5:01 pm

Nonsense. You are leaping from “crimes should not be kept secret” all the way to “there should be no secrets, because some of them might be crimes.”

Seriously? How about There should be no secrets, because some of them are clearly obfuscating crimes against humanity. A military–and, by extension, a state’s foreign policy apparatus–loses its right to secrecy by committing crimes against humanity and then attempting to cover them up. Yes, this includes private information that is not provably related to known crimes against humanity, and yes, this includes tangential and incidental information too.

The only retained privacy at all relevant to the organization is the individual privacy of personal information that people possess — as in, e.g., medical records. (People who were involved in any meaningful way with the crimes against humanity might, or might not, lose some individual right to privacy, but to lose this privacy the information in question does have to be importantly related to the crimes or the coverup.)

Certainly any information or message whatsoever conveyed in one’s capacity as agent of the state, or in performance of one’s duties, is not due any individual secrecy whatsoever. If the loss of privacy causes the state problems or endangers the state, maybe the state should go sit in the corner and have a long hard think about the consequences of its misbehavior. It has a lot of apologizing to do.

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Harold 01.17.13 at 5:04 pm

Corrections. Yeah, right.

58

Harold 01.17.13 at 5:10 pm

NYT article implies that Obama, too, is a prisoner of the Pentagon in that he is too intimidated to speak his mind (if he still has a mind): “Philip Crowley, a State Department spokesman, committed the classic mistake of a Washington mouthpiece by telling the truth about Private Manning to a small group (including a blogger): that the military’s treatment of Private Manning was ‘ridiculous and counterproductive and stupid.’ He resigned on Sunday.

Far more troubling is why President Obama, who has forcefully denounced prisoner abuse, is condoning this treatment. Last week, at a news conference, he said the Pentagon had assured him that the terms of the private’s confinement ‘are appropriate and are meeting our basic standards.’ He said he could not go into details, but details are precisely what is needed to explain and correct an abuse that should never have begun.”

59

straightwood 01.17.13 at 5:28 pm

Private Manning, a diminutive, low-ranking enlisted soldier, showed vastly more moral courage than the “leaders” who plunged America into the disastrous Iraq war. The defenders of that war remain in positions of power and influence, while Manning faces life imprisonment. America has become a cruel, stupid, and unjust society, but Manning and Swartz have shown us that nothing can snuff out the human impulse to do right. For this, we should be deeply grateful.

60

rea 01.17.13 at 5:42 pm

@58–recall (1) that the treament ended relatively shortly thereafter (contrary to the commentor above, who mistakenly claimed it went on for another year), and (2) of course it would be improper for the president to discuss with the press the reasons why jail authorities suspected a prisoner of being suicidal.

@55–speaking as someone who has interviewed prisoners on numerous occasions, let me say that private conversations between prisoners and visitors other than the prisoner’s lawyer (and sometimes not even then) are unheard of in the US system.

61

Harold 01.17.13 at 6:45 pm

rea — your name is apt for someone who defends the indefensible.

62

rea 01.17.13 at 6:53 pm

rea — your name is apt for someone who defends the indefensible.

I’m not following you (rea is my initials). I am, however, an attorney who does criminal defense work, so there is a sense in which your statement is correct.

63

kharris 01.17.13 at 6:58 pm

I appreciate that the Swartz case is egregious and that it serves as an opportunity to hold Obama administration officials accountable. I worry, though, that his youth and fame and association with social median mean that Swartz gets attention while other similar cases do not. Swartz had wealthy, powerful friends who buy electronic ink by the barrel. Where was all the outrage for less fortunate folk whose treatment was just as vile?

64

Substance McGravitas 01.17.13 at 7:03 pm

Where was all the outrage for less fortunate folk whose treatment was just as vile?

I suggest you peruse JSTOR for the relevant research.

65

straightwood 01.17.13 at 7:25 pm

@60

rea is assiduously pecking away at details, using the standard debating tactic of implying that imprecision in small matters invalidates the entirety of the opponent’s argument. There will always be apologists for oppression, and their debating prowess may vary, but nothing changes the salient facts:

1. Manning revealed repugnant activities carried out by the US Government, at great risk to himself, causing great embarrassment to the US.

2. Manning was treated with excessive harshness by his captors, who inflicted solitary confinement, humiliation, and sleep deprivation on him.

I doubt that many people would fail to apply a link of causation between these facts.

66

rea 01.17.13 at 8:06 pm

@60–calling me an apologist for oppression is somewhat a breach of civility, and not justified by what I’ve said here, if you would trouble to read it. You and others taking extreme positions on these issues unjustified by the evidence are damaging the cause you claim to support.

Manning was right to leak evidence of war crimes–but he destroyed all moral justification for what he did by leaking hundreds of thousands of communications that had nothing whatever to do with war crimes, thus making the issue, not whether the US committed war crimes, but whether governments ought to have secrets.

Manning was mistreated in custody. But the treatment he received was not inappropriate if he really had been suicidal, and the notion that the President was somehow involved in placing him on a suicide watch is not something that anyone familiar with the workings of the US criminal justice system will find very credible, absent evidence which you don’t have.

Complaining about Manning being held in “solitary confinement” ignores the differences between how Manning was treated and how, for example, Jose Padilla was treated–not allowed visitors, not allowed to communicate with friends and relatives, not allowed TV, not allowed exercise or contact with other prisoners in the exercise yard. If you ignore the differences, you weaken the case that Padilla was abused, just as when you say that Manning was “tortured,” you weaken the case that waterboarding prisoners amounts to “torture.”

Complain about how Manning was actually treated, and I support you. Make up a lot of evidence-free nonsense, and I’ll tell you you are hurting the cause.

67

Tim Wilkinson 01.17.13 at 8:19 pm

rea @60: the treament ended relatively shortly thereafter (contrary to the commentor above, who mistakenly claimed it went on for another year)

Though the UN’s Special Rapporteur on Torture had personally written a detailed letter to the administration about these concerns (including allegations that BM’s treatment was imposed in an effort to coerce him into “cooperation” with the authorities, allegedly for the purpose of persuading him to implicate others) more than two months earlier, on the 30 Dec: see the link already provided @52. Are we to adopt a generic ‘cock-up theory’ that Obama remained ignorant of that letter, which (modulo diplo-speak) was addressed to him?

of course it would be improper for the president to discuss with the press the reasons why jail authorities suspected a prisoner of being suicidal.

The Special Rapporteur complained that he had received no indication even of what kind of harm the administration were supposedly protecting Manning during those two months and more, as related at 55 above.

private conversations between prisoners and visitors other than the prisoner’s lawyer (and sometimes not even then) are unheard of in the US system

That may well be correct in the general run of things – as some guy says, while a few jurisdictions have agencies that approximate the model set forth in Standard 23-11.3(a), (51) they are the exception. Doesn’t come as a surprise even that the US – ignoring the ABA’s published standards – has no institution comparable to the UK’s HM Inspectorate of Prisons, or that the functions thereof are largely neglected.

But when the UN Special Rapporteur on Torture is communicating with the highest level of government and asking for confidential access to a specific prisoner, that does not fall into the general run of things. That request was, it seems, denied by the Pentagon on an ad hoc basis – not standing policy nor established practice and certainly not any justifiable reason. We know too (rose-bespectacled cock-up theorists notwithstanding) that Obama was very much in the loop at this stage.

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Sebastian H 01.17.13 at 8:36 pm

If you really want anything good to come out of the Aaron Swartz case, I would be loathe to link it to the Manning case. I believe that Manning is being mistreated. I believe that he has a legitimate case with respect to some of the disclosures he made. But he also dumped essentially all of the diplomatic secrets he could get his hands on. I have no idea what Aaron believed in his heart of hearts. Maybe he was a full on Wikileaks supporter. But his actions were a lot easier to defend. The data he liberated in the Pacer investigations was already public domain. The JSTOR data was widely available scientific data. Aaron’s actions are easily distinguishable from Manning’s. The argument against prosecutorial overreach, nasty plea bargaining tactics, and unjust piling of charges for jury effect is already going to be almost impossible. Saddling it with the freight of the Manning case seems like a very bad idea.

69

Katherine 01.17.13 at 8:58 pm

Manning was mistreated in custody. But the treatment he received was not inappropriate if he really had been suicidal

I’m sorry, what now, rea? His treatment was mistreatment, but the mistreatment would be justified if he was suicidal? Seriously, can you read what you are writing?

70

Tim Wilkinson 01.17.13 at 9:08 pm

I agree with Sebastian.

71

rea 01.17.13 at 9:18 pm

His treatment was mistreatment, but the mistreatment would be justified if he was suicidal?

When jailers have legitimate reasons to beleive that prisoners are suicidal, they are kept under frequent observation and not allowed things like clothes, bedsheets, shoelaces, silverware, so that they don’t have the means to kill themselves. This is not a comfortable regime, but the alternative is finding the prisoner hanged some morning. But of course, keeping a prisoner under such a regime when the jailers don’t have legitimate reason to beleive the prisoner is suicidal is abusive.

72

Harold 01.17.13 at 9:25 pm

Prison psychiatrists objected to the treatment – ergo, it was abusive.

73

Harold 01.17.13 at 9:26 pm

What Manning “liberated” was already widely available, as well.

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Harold 01.17.13 at 9:28 pm

“rea” Italian, adj. = guilty, deserving of punishment, culpable, also vile. = a crime.

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Katherine 01.17.13 at 9:28 pm

This is not a comfortable regime, but the alternative is finding the prisoner hanged some morning.

I suppose that depends on your preferred outcome:

(a) mistreated, suicidal but physically alive; or
(b) someone who is not suicidal.

76

Harold 01.17.13 at 9:29 pm

reato = a crime

77

straightwood 01.17.13 at 9:36 pm

@71

So, rea, faced with the vast panorama of US government and corporate corruption, what compels you to undertake the mission of guardian of the state in blog threads? Is it concern for the plight of the oppressed? Your assertion that resistance to oppression is strengthened by exploring every possible exculpatory argument for the oppressors is not very convincing.

78

Tony Lynch 01.17.13 at 9:54 pm

Our dear troll Rrea’s interventions here are surely “appropriate” in jut the way US Attorney Carmen Ortiz insists her “career prosecutor” actions in this travesty were themselves “appropriate”.

79

rea 01.17.13 at 9:55 pm

I suppose that depends on your preferred outcome

No, Katherine, I’m telling you that (much to our discredit) prisoner suicide is a huge problem in US jails and prisons, that there are uncomfortable procedures that sometimes must be followed to prevent prisoners from killing themselves, but that those procedures are abusive if applied to prisoners who are not suicidal–just as, treating a mentally ill person for mental illness is appropriate and necessary, but treating someone who is not mentally ill for mental illness is abusive.

Harold and straightwood, you are abandoning reasoned argument and descending to personal abuse–I’m done with you.

80

Mao Cheng Ji 01.17.13 at 10:10 pm

If your dentist decides to drill your healthy teeth, that would be a mistreatment. When they drill the rotten ones, that’s highly unpleasant too, but it’s still considered a treatment.

81

Tim Wilkinson 01.18.13 at 12:23 am

btw – if I were a hated enemy of the US security state, regarded as a traitor in their midst (they really really hate those, more than they do their primary adversaries, who are after all just playing their allotted role in the game) and they had me in custody, and then they started telling the world at large that I am on the brink of suicide, I would be very very frightened indeed.

I think it’s reasonable to suppose that this angle would occur to Manning at some point as he lay alone in his cell for day after day feverishly speculating about what might happen to him. And also reasonable to suppose that this in turn would have occurred to his tormenters.

82

Harold 01.18.13 at 12:51 am

If the military prison psychiatrists are protesting that it is not a treatment — and they ought to know – then it is not a treatment but rather constitutes torture.

83

Salient 01.18.13 at 12:59 am

When jailers have legitimate reasons to beleive that prisoners are suicidal, they are kept under frequent observation and not allowed things like clothes, bedsheets, shoelaces, silverware, so that they don’t have the means to kill themselves.

If you are ‘kept under frequent observation,’ you don’t need to be disallowed things like clothes, bedsheets, or shoelaces.

I normally sorta try to avoid personal questions, but you mentioned your career upthread, and you’re speaking with some measure of authority — in particular you’re claiming that the way Manning was treated, would be a humane way to treat a credibly suicidal person. (the treatment he received was not inappropriate if he really had been suicidal). Is this based on some direct familiarity with standards for appropriate treatment, from work you’ve done representing clients or related research?

I don’t mean this as a narrow gotcha question (IANAL and couldn’t possibly pull rank), I’m just trying to figure out the basis for your claim that Manning’s treatment would be an acceptable regime for a suicidal person, a claim which feels both astonishing and incompatible with what little I do know about treatment practices. Is it part of what you’re intending to assert as your professional familiarity in capacity as lawyer?

84

Harold 01.18.13 at 1:16 am

Power to punish corrupts absolutely:

Power’s Punishing Impact: Power Linked to Tendency to Punish Harshly

http://www.sciencedaily.com/releases/2013/01/130117142554.htm

85

rea 01.18.13 at 2:01 am

“If you are ‘kept under frequent observation,’ you don’t need to be disallowed things like clothes, bedsheets, or shoelaces.”

On at least one of the cases I worked on, the boy hung himself during a 5-minute period when he wasn’t under direct observation. There simply not enough guards, usually, to keep people on suicide watch under direct observation 24/7.

A decade or two ago, I was with a firm that defended counties and municipalities on (among other things) cases arising out of jail suicides, and I worked on several of those cses (although I’m more a researcher/writer than trial attorney). Of course, those cases involved claims that the jails did not do enough to prevent suicide. I have also acquired some familiarity with jail and prison security from visiting clients in my role as criminal defense attorney (although I do more civil work than criminal these days).

86

rf 01.18.13 at 2:26 am

Rea @60

I haven’t read everything posted here, so not sure if I’m misreading you, but on this:

“just as when you say that Manning was “tortured,” you weaken the case that waterboarding prisoners amounts to “torture.”

Most don’t argue that the waterboarding alone was torture (which happened to only a handful of detainees) but the more routine elements of their detention did (sleep deprivation, stress positions etc) Such as outlined here (re the black sites, though a number of the methods were used more generally)

http://assets.nybooks.com/media/doc/2010/04/22/icrc-report.pdf

Also there’s also a good bit of research claiming solitary confinement should be categorised as torture (I won’t link as it will put me into moderation) out of genuine curiosity, and also not as a gotcha, but mostly curious due to the job you have, would you agree that it is?

87

Bruce Wilder 01.18.13 at 4:51 am

rea:

On at least one of the cases I worked on, the boy hung himself during a 5-minute period when he wasn’t under direct observation. There simply not enough guards, usually, to keep people on suicide watch under direct observation 24/7.

There’s a little too much b.s. there. I suggest if you want to keep some semblance of credibility while trolling, that you dial it back a bit. You can put me on the list of people, who really, really would like to heap personal abuse on you. You are one lousy excuse for a human being.

88

Matt 01.18.13 at 5:45 am

I’ll say that rea has been a valued commenter who always seemed to offer reasonable comments on this blogs and others. He’s a lawyer whose comments seem to fit with what I know as a lawyer and with my other experience, and who has no history as a troll. People calling him a troll here haven’t offered any other plausible experience in this field other than not liking what he’s said. That doesn’t seem like enough to me. Perhaps he’s wrong and perhaps not, but I don’t think there’s good reason to think he’s arguing in bad faith, and good reason to think that many arguing against him here have no relevant experience to claim otherwise, other than their desires and wishes to believe something.

I’ll say that this whole set of posts have been depressing to me, not only because of the generally depressing subject matter, but for seeing people clearly argue out of emotion and not experience or knowledge, and to make claims of the same basic sort that they otherwise would not if the political valiance had been otherwise. I wish I could say that I expected better of the Crooked Timber set all around, but that faith had been damaged some time ago. This is a sad confirmation.

89

straightwood 01.18.13 at 6:48 am

a valued commenter who always seemed to offer reasonable comments

What value should we place on comments that justify Bradley Manning’s conditions of confinement and a prison sentence for Aaron Swartz?

90

Matt 01.18.13 at 7:00 am

Do you have any reason to think that rea is arguing in bad faith, or merely intentionally trying to piss people off? If not, he’s not being a troll. He’s someone with experience in some of the relevant areas, and that’s often useful, even if you disagree with it. When someone argues in good faith, responding by saying “Troll! Troll! Troll!”, as some are doing here, is a sign of not caring about getting things right. That’s something that hasn’t been too common on Crooked Timber, but has become, I think, sadly more common.

91

Katherine 01.18.13 at 9:42 am

rea, I am aware of the conditions of suicide watch. My point was wider – the institution of suicide watch is terrible. If someone is in so dark a place mentally that they are seriously contemplating killing themselves to escape from that darkness, then sticking them in a dark room with no people or things with which to interact – well, that’s possibly the most cruel and inhumane thing you could do to that person.

Like I said, if your aim is simply to avoid a dead body, then yes, the conditions described could be said to have “worked”. If, on the other hand, you’d like to end up with a person who is not suicidal (such that you don’t have to have them on suicide watch), then the conditions described are not only inadequate, but actively inimical to the aim.

Clearly, the aim with suicide watch is not to end up with a mentally well person, but to avoid blame for someone having killed themselves.

92

etv13 01.18.13 at 9:46 am

What Matt said. The ad hominem attacks really do no credit to the people making them, or the site as a whole.

93

Tony Lynch 01.18.13 at 10:10 am

What, then, what is “appropriate”? How many years?

i wonder, then, what is “appropriate”.

94

Tony Lynch 01.18.13 at 10:12 am

Always edit. Sorry.

95

rea 01.18.13 at 11:26 am

I must admit, it’s odd to get called a troll on a site where I’ve been a regular commentor since 2003 . . .

96

Marc 01.18.13 at 1:56 pm

@95: The political spectrum here is radical relative to the US, and there are a lot of intolerant extremists who post in the comments here. John is OK, but a lot of the other front-pagers simply egg them on. I’ve basically lost all respect for the quality of the posting here on political matters, which is too bad.

The site remains valuable on other subjects, and I really appreciate reading people like JQ on economics. But it’s simply a window into a world as self-sealed and impervious to refutation as Fox News when it comes to politics.

97

Rich Puchalsky 01.18.13 at 2:04 pm

The word “troll” just means significant enough disagreement between the person being called a troll and the person doing the calling. There isn’t any other content to it.

rea, I do think that to some extent you’ve conflated a conspiratorial view (in which Obama would be personally plotting to have Manning tormented) and a political-pragmatic one (in which Obama would have heard about the Manning case at quite an early stage, because it’s a political scandal). The people holding the second view are saying that Obama should have intervened a lot earlier, but didn’t because this way he has plausible deniability.

98

Rebecca 01.18.13 at 2:23 pm

I don’t have a final opinion regarding the usefulness of the get-rid-of-ortiz petition (obviously she needs to go, but whether the petition itself is useful, I don’t know), but can it really be a coincidence that the threshold for a response from the White House was raised from 25k to 100k precisely (!) when the get-rid-of-ortiz petition reached the 25k threshold that should have required a response? Are they evading? See here: http://www.whitehouse.gov/blog/2013/01/15/why-we-re-raising-signature-threshold-we-people

99

Watson Ladd 01.18.13 at 2:25 pm

Katharine, I have a close friend who was placed in the mental ward of a hospital for suicidal ideation. While the conditions he was kept under were not entirely conducive to recovery, they did ensure that he was alive long enough for psychotherapy and fluoxetine to work. While it is quite demeaning to have ones medications dolled out by the nurse, or to have ones shoes without shoelaces, the alternative is to have patients kill themselves.

Rich, the term troll comes from fishing. It’s someone who makes comments hoping to provoke an angry response. (Usenet circa 1980) Of course later it became a word meaning undesirable commentator.

100

Rich Puchalsky 01.18.13 at 2:53 pm

And even later it became a word meaning “someone who provokes an angry response in me” without regard to the manner or content involved in what was written.

101

William Timberman 01.18.13 at 2:59 pm

Reading genauer’s comments the other day on the virtues of German economic policy, and rea’s comments in this thread on the virtues of the U.S. legal system, I’m reminded of a line from one of Bach’s cantatas:

Gütig sein und tugendreich,
Macht uns Gott und Engeln gleich

Folks like genauer and rea always seem to get the tugendreich part, but never the gütig sein part. Calling them morally obtuse is probably no less inflammatory than calling them trolls, but that’s what I’d call them. Defending a static present by criminalizing those who are trying to change it is never as broadminded a strategy as those who adopt it would have us believe.

102

straightwood 01.18.13 at 4:13 pm

The “radicals” here proceed from first principles. I believe that Justice exists apart from the legal machinery of any particular code of law or jurisdiction. Lawyers view themselves as technicians operating within a system. Justice may be a byproduct of their work, but it is hardly their only concern. Distinguished lawyers wrote the opinions that authorized torture in the Bush administration.

What makes rea’s comments so frustratiing is that they are fundamentally petty. Manning and Swartz were engaged in civil disobedience. This is obviously illegal, so there is no great need to detail the extent to which the authorities were exercising their legal prerogatives. We don’t need to examine the bark to contemplate the forest.

We know that the authorities are seldom monsters or caricatures of evil. Indeed, it is their banality that is surprising. Yet the evil that they do must be resisted. Thus, pettifogging about the details of the legality of crushing Manning or Swartz is ultimately an annoyance and a distraction from the elephant in the room: the unjust application of state power.

Legality and Justice are not the same. Roman law made extensive provisions for the ownership and treatment of slaves. German law in the 1940s had provisions for the expropriation of Jewish property. American law in the 1960s had regulations governing racial segregation. In each of these eras, lawyers could point out the correctness of inflicting severe punishments on lawbreakers, but these punishments had nothing to do with Justice.

103

Consumatopia 01.18.13 at 4:32 pm

rea has engaged in bad faith arguments before (I would say more concern trolling than regular trolling), and does seem to usually be on the side of the security establishment, but in this case rea is correct–Manning was mistreated but not tortured, there did seem to be some misinformation about Manning’s treatment, and comparing Manning to Swartz is a mistake for many reasons.

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Harold 01.18.13 at 4:46 pm

rea, a self-proclaimed lawyer, has been bolstering his or her arguments with appeals to his or her own expertise, while not really being candid about just what such self proclaimed expertise consists of (despite being asked), except in once having participated in defending jailers from criminal prosecution in a case of mistreatment of prisoners.

105

Salient 01.18.13 at 4:59 pm

Manning was mistreated but not tortured

Solitary confinement is torture. It’s a routine form of torture that’s apparently admissible under current U.S. law, but then, so was waterboarding.

comparing Manning to Swartz is a mistake for many reasons.

Well, ok. Two very dissimilar instances of police state brutality. Making an equivocation between the two would invite all kinds of distraction. (I don’t think JQ did any such thing, though. His argument is basically that walking back one form of police state brutality would have a chilling effect on other forms. You could complain that name-checking Manning wasn’t useful to the point, but the chilling effect would be roughly the same in any instance of pardoning. In that sense, pardoning Manning or pardoning Swartz would have somewhat similar chilling effects, and pardoning one would make the brutality directed at the other all-the-more starkly visible. JQ and I disagree that a pardon is a meaningful way to express a walkback — I think I’m with Corey on this. If Obama is to pardon anyone, he should pardon e.g. Carmen M. Ortiz, and if he suddenly decides to be responsible about it, he should exhaustively list in the pardon the many forms of excess and brutality that Carmen M. Ortiz inflicted upon her victims.)

106

Katherine 01.18.13 at 7:16 pm

While the conditions he was kept under were not entirely conducive to recovery, they did ensure that he was alive long enough for psychotherapy and fluoxetine to work. While it is quite demeaning to have ones medications dolled out by the nurse, or to have ones shoes without shoelaces, the alternative is to have patients kill themselves.

“Patient” is not quite the same as “prisoner” is it. And I await confirmation that Manning was being offered adequate psychotherapy and medical attention.

Also, what is it with the patronising explanations today?

107

Tim Wilkinson 01.18.13 at 8:26 pm

Rich Obama should have intervened a lot earlier, but didn’t because this way he has plausible deniability apparently he does, yes, despite the publication of the UN Rapporteur’s 2010 letter.

But ‘preserving deniability’ isn’t a good reason for not intervening, since intervening would remove the need for deniability. I think a better description of the thesis would be “didn’t because he didn’t want to, and while he could maintain plausible deniability didn’t feel he had to”.

Marc – with some notably sublime and funky exceptions, CT is nowhere near as bad as you suggest. (Another thing that is nowhere near as bad as you suggest is your I’ve basically lost all respect for the quality of the posting here on political matters, which is too bad.)

Sarcasm, mild abuse and moral obloquy is pretty well distributed across the spectrum of expressed opinion. Your comments suggest that the real problem is just that you find the balance of opinion to be skewed (relative to your chosen ‘centre’). It follows that you would find such abuse etc. as there is to be one-sided too.

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Harold 01.18.13 at 8:38 pm

Repeat: the prison guards were operating contrary to the recommendations of prison psychologists. The suggestion that they were trying to “treat” a “patient” (rather than torture a suspect) is beyond ludicrous.

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etv13 01.18.13 at 9:50 pm

Harold @ 107: Then it’s a good thing nobody suggested it. rea said suicide-watch treatment of Manning would have been appropriate if there had been reasonable grounds to believe he was, in fact, suicidal; Katherine raised a general objection to suicide-watch procedures; Watson Ladd responded to Katherine.

110

Nick 01.18.13 at 11:41 pm

Did Manning expose HUMINT sources?

111

Harold 01.19.13 at 12:09 am

It is my understanding that rea is suggesting that the suicide watch and solitary confinement were appropriate, despite what the army physicians had said.

112

rea 01.19.13 at 12:22 am

It is my understanding that rea is suggesting . . .

The rea in his head, of course, takes very different positions than the rea actually commenting here

113

John Quiggin 01.19.13 at 1:21 am

On the question of whether it’s appropriate to draw a link between the Swartz and Manning cases, I want to mention that Glenn Greenwald, who’s been Manning’s most vocal supporter, has done exactly that, in much the same terms as in my post

http://www.guardian.co.uk/commentisfree/2013/jan/16/ortiz-heymann-swartz-accountability-abuse

114

Harold 01.19.13 at 1:30 am

rea @ 77″I’m telling you that (much to our discredit) prisoner suicide is a huge problem in US jails and prisons, that there are uncomfortable procedures that sometimes must be followed to prevent prisoners from killing themselves, but that those procedures are abusive if applied to prisoners who are not suicidal–just as, treating a mentally ill person for mental illness is appropriate and necessary, but treating someone who is not mentally ill for mental illness is abusive.”

rea seems to accept that Manning was mistreated but also wants to assert that the mistreatment would have been appropriate had the circumstances been different, and analogous, in fact, to treatment for mental illness. This seems to me to be wanting to have it both ways, at the very least. It is also very offensive since it obfuscates the fact is that Manning was kept in these inhuman conditions for just short of one year and the abuse only stopped after the intervention of Amnesty International. It is disgusting to suggest that
there is any analogy whatsoever with any form of mental treatment.

Rea has not elaborated on his coy hints that he is some sort of legal expert.

115

Antialias 01.19.13 at 1:41 am

Thomas @ 5:

Soon, mass graves will fill with the corpses of despareados — “the disappeared ones.”

You want desaparecidos… desapareados means they are pairless, which is both fitting and out of place.

116

Bruce Wilder 01.19.13 at 2:42 am

117

etv13 01.19.13 at 8:53 am

Harold @ 114: What the hell is wrong with you? “Coy hints that he is some sort of legal expert”? rea said directly in comment 68 “I am an attorney who does criminal defense work.” He was almost as direct at 85, where he spoke of having been in a firm, but being more of a researcher/writer than a trial lawyer. What “coy hints” are you talking about?

Your “substantive” beef with rea is no better founded. In his very first comment in this thread, # 22, rea said flatly, “Manning was mistreated.” At comment 38, rea said (and was the first to say in this thread, I believe) that the suicide watch was “contrary to the recommendations of military psychiatrists and contrary to the regulations.” That’s why he considers the suicide watch in Manning’s case mistreatment. He said again at 71 that a suicide watch is abusive if the jailers don’t have legitimate reason to believe the prisoner is suicidal. How you come by the notion that rea in any way is suggesting an analogy between Manning’s mistreatment and “any form of mental treatment” is a mystery to me.

118

Sebastian H 01.19.13 at 9:37 am

I fully understand the analogy between the two cases, but muddying the waters with Manning’s national security angle strikes me as a great way to squander a rare opportunity. The logical argument is sound but the political angle is stupid.

I’m not saying you should abandon a defense of Manning. I’m saying no good will come of linking it to Swartz. The tiny plus you might get for the Manning discussion is completely swamped by the huge likely hood of completely torpedoing any forward movement spurred by Swartz’s death.

119

Sebastian H 01.19.13 at 9:38 am

Shorter me: death over copyright is one thing, imprisonment over diplomatic cables is another.

120

Tim Wilkinson 01.19.13 at 10:28 am

rea: @66Manning was mistreated in custody. But the treatment he received was not inappropriate if he really had been suicidal

But ( http://truth-out.org/news/item/13086 ) reports that he was apparently not permitted to turn his face from the 24 bright light, and during the day was not permitted to lie down or sit with his back resting against the wall, etc.

and the notion that the President was somehow involved in placing him on a suicide watch is not something that anyone familiar with the workings of the US criminal justice system will find very credible, absent evidence which you don’t have.

What about people familiar with military brigs? What about being ‘involved’ by giving tacit or covert approval, in his capacity as army chief? The last clause looks much like the usual unreasonable challenge to provide positive non-circumstantial evidence for covert machinations or else conclude in the authorities’ favour.

—-

I still agree with Sebastian – a campaign based on AS’s case is not, I’d have thought, going to expand its support base by also requiring support for Manning, and seems likely to reduce it as well as muddying the waters since the issues involved are so different.

121

Andrew F. 01.19.13 at 5:34 pm

It would amount to an acceptance that Swartz’ motivation in seeking the free distribution of information was a noble one, and that his offences should have been judged in that light.

This interpretation implies that Swartz’s intentions were to “liberate” JSTOR’s database by distributing its contents. If one concedes that point, imho it becomes much more difficult to claim persuasively that he was wrongly prosecuted, or that the 6 months for a felony guilty plea was excessively punitive.

A pardon would be an awfully vague way to send a message regarding Swartz, prosecutorial conduct, intellectual property law, or especially Manning. We could interpret a pardon to mean many different things, some relating to particular actions by the prosecution in this case, others to prosecutorial conduct generally, others to intellectual property law generally, others to Swartz’s character in specific, or to some combination of any of them. Some of those threads would imply what punishments are appropriate or inappropriate for Manning – but only some, and even then, what a stretch it would be.

Should the President really want to act on any of those things, there are much more effective ways for him to do so.

122

genauer 01.19.13 at 9:41 pm

when I read many contributions here,

I actually wonder, how “the law”, and what you owe to it, is teached to american children.

123

Harold 01.19.13 at 10:03 pm

My beef with rea is that he omits to mention that the egregious torture of Manning continued 11 months, while he was awaiting trial, while suggesting that it is somehow analogous to routine precautions /and or psychiatric treatment. That is my beef.

I don’t agree that it is inappropriate to bring up Manning, since the prosecutorial excesses and/or excessive punishment before conviction occurred in both cases which both involved a perception of “cyber crime”. I also feel it is appropriate to bring up the military police state atmosphere that has increasingly prevailed in the USA after Sept. 11. And which is connected to the current fall in standard of living and quality of life for the mass of the citizenry.

124

rf 01.19.13 at 11:09 pm

For anyone interested, this is good on solitary confinement

http://www.newyorker.com/reporting/2009/03/30/090330fa_fact_gawande

And most of the research quoted is available online. (It often surprises me how often solitary confinement is ignored by experts on torture)

125

straightwood 01.20.13 at 3:27 am

One reason why Kafka is such a brilliant writer is that he depicts the horrible and the absurd with clinical and bureaucratic precision. His calm and orderly accounting of monstrous outrages hits the reader with tremendous force. This is why the calm, lawyerly, explanations offered by rea for the abuse of Manning by a criminal war machine and the crushing of Swartz by an insane intellectual property protection ideology generate such anger among people with a humanistic perspective.

126

Tim Wilkinson 01.20.13 at 9:40 am

the prosecutorial excesses and/or excessive punishment before conviction occurred in both cases is strictly true but misleading – it’s not ‘and’, only ‘or’, really. In the Manning case, it’s (I think) at least much less clear that prosecutorial excesses did occur, while Schwarz wasn’t subject to excessive punishment before conviction – he was not being held in custody and as far as I know hadn’t been excessively punished in anything resembling the way Manning was.

So the thing that the two are said to have in common looks like an artificial, disjunctive property composed of a pair of properties neither of which, taken alone, is actually shared. By way of analogy (excuse the analytic-philosophy tic of giving flippant-sounding examples), I share the property of being British or Zimbabwean with Robert Mugabe (I am not Zimbabwean).

127

rwschnetler 01.20.13 at 10:23 am

I agree with Matt (post 88) and etv13 that Crooked Timber lost it’s intellectual mojo. The infantile name calling and calling ‘Troll! Troll!’ is idiotic. Engage and explain. This is the only way to convince somebody else with an alternative view.

128

Chris Bertram 01.20.13 at 11:36 am

Matt, etv13, rwschnelter: afaics, nobody listed on the CT masthead has called rea a troll. We can’t spend all our time policing spats among commenters.

129

Matt 01.20.13 at 3:06 pm

I never suggested that anyone on the masthead called rea a troll, Chris. I was making a comment only about what seemed to me to be a particularly dumb set of comments, free of content and devolving into name-calling. I assume that’s still okay.

130

hix 01.20.13 at 5:38 pm

The conditional claim that Mannings threatment was somehow an apropiate response as opposed to torture if he was suicidal is no less outragous, somewhat more actually, than being ok with his threatment under any circumstances.

Either way, the fish usually stinks from the head. It is rather unlikely that some good president standing above the law can fix a broken legal system by just pardoning away the problem without anybody within the legal system being prosecuted. Indead when presidents can grant pardons, we can observe the opposite behaviour. Last case in point Václav Klaus.

131

Harold 01.20.13 at 5:58 pm

I guess it is cruel and unusual to call an argument “morally disgusting” and “outrageous”.

132

Harold 01.20.13 at 6:05 pm

It never ceases to amaze me how thin skinned are those advocating “dishing it out” .

133

roy belmont 01.20.13 at 9:45 pm

Bradley Manning wasn’t tortured. What happened to him, and is still happening to him, is sadistic revenge. With its consequent educational results. Same with Assange.
“Mess with us, and we will mess you up bad.”
Anyone who thinks “the Obama Administration” as contradistinct to the “Bush-Cheney Administration” is primarily responsible for this subhuman catharsis probably thinks Victoria Nuland is representative of some kind of social progress involving the end of the patriarchy.

134

js. 01.21.13 at 5:29 am

I don’t often find myself saying this, but I fully agree with Sebastian here—@118: “The logical argument is sound but the political angle is stupid.” (Well, I don’t know if it’s stupid exactly, but it’s almost certainly counterproductive.)

135

etv13 01.21.13 at 9:04 am

Chris Bertram @ 128: Nobody expects that you can moderate everything, but you do moderate some things, and therefore, your choices can’t be exempt from scrutiny. It will be a long time before I forget, for example, that dsquared called me a “prissy asshole” and none of the other frontpagers so much as squeaked — yet non-headliners making perfectly civil but, apparently, substantively objectionable comments get banned. It’s your blog, and you can do what you want, but that doesn’t mean I have to respect what you do.

Harold @ 131: You’re indulging in hyperbolic nonsense. Arguing with you obviously is pointless. I’m done.

136

John Quiggin 01.21.13 at 10:26 am

Since this is my thread, I’m responsible for policing it, but please bear in mind that I have a life, job etc. To make my life easier, please refrain from calling other commenters “trolls” if you merely mean to disagree with them. While I don’t agree with rea on this, I don’t think it’s trolling to defend Obama on these issues.

137

rea 01.21.13 at 10:10 pm

Thank you for that comment, John.

138

ezra abrams 01.22.13 at 3:42 am

From what I read,
Aaron Swartz was a genius with a passion for information and helping people
he had a serious mental illness, and his suicide, esp at a young age, is horrible.
Against this, and his puppy dog good looks, how do we value the facts ?

What are the Facts ?
An idealistic young man goes to great lengths (see todays N Y Times) to hack into a computer at MIT and download private property – the JSTOR data base (in shorthand – the lawyers may describe the property differently)
The young man had, at least in the past, clearly expressed intentions to use the stolen database in a manner e contrary to the desires of the property owner, and injurious to the owner’s financial interest.

It is very difficult to value the JSTOR database, but inasmuch as it has 4,000,000 plus articles (or the rights to those articles, or the right to download them as pdfs) including many seminal papers by titans like Milton Friedmann, and inasmuch as many people pay $10 or more for one article, a market value of $1,000,000.00 seems like a fair minimum (not to mention the hefty site license collected from universitys)
Given all this, what is an appropriate sentence ?
We all have views here, but does 6 months, probably in one of those country club min security federal prisons, really seem so out of line ?
This is why I don’t understand peoples reactions: you are as smart as AS, you steal close to a million dollars, you should know that in prev cases very stiff penalties have been bruited about, and you should not be surprised if the cops take a dim view of your activities – it is a universal truism that whistle blowers are never rewarded; they wind up on the trash heap of history. Reality is a harsh mistress
In any event, 6 months isn’t harsh
Being kidnapped by Islamist terrorists, and forced to sit blindfolded, hours on end, with a bomb aroundyour neck, that’s harsh
Days of solitary confinement, like Manning, that’s harsh.

Most of the arguments of AS supporters depend on one thing – that 6 months was so harsh it shocks the conscious.
Like the idea that loss of voting rights was a terrible burden.
Get real; are you really going to tell me that a computer genius of AS level couldn’t do 100 times more with his skills then with his single solitary vote ?
The idea that Aaron’s suicide is somehow the fault of the prosecuter – maybe, maybe not; I don’t know how this sort of thing is handled.
But, either Aaron was an adult, able to manage his own affairs, or he wasn’t; that may be harsh, but that is how our society works – for better or worse, you are free to choose; he choose, and *he should have known* that crimminal charges might be brought.
And why on earth is 6months so bad ? Lots of people who do civil disobediance wear their prison terms as a badge of honor – you all know what Thoreau said to Emerson, don’t you ?

There is just this weird sense of faux naivete about this; you do all these criminal acts, how can you be surprised at a criminal charge ? in the real world ?
As for all this crocodile tear stuff about how the prosecutor coerced him by charging him with crimes that carry horrendous penalties – get real; that is completely, totally SOP in the US today.
If you want to take the AS case (and ignore all the poor people without friends) as an example of prosecutorial over reach, fine – but if AS was 1/20th as smart as they say, he shouldn’t have been so surprised.

139

Rich Puchalsky 01.22.13 at 3:53 am

Did ezra’s younger sibling find his password, or something?

It’s the “Gosh, that includes Milton Friedmann!” that makes the piece work for me. That and the One Million Dollars Point Zero Zero Cents.

140

John Quiggin 01.22.13 at 4:31 am

To defend the politics of the post, it’s not as if we are trying to get Aaron released from jail, in which case it would be important not to link his case to more controversial examples of similarly oppressive behavior.

What matters now is to push back on as many fronts as possible. If people feel comfortable pushing back on the abuse of prosecution power in ordinary criminal cases, but not in national security cases (or vice versa), I don’t think they should see a problem in getting support from those who want to take a broader views.

141

Harold 01.22.13 at 4:32 am

I have long had the right to download Jstor articles, probably including some “terribly valuable” ones by Milton Friedman (forsooth), for free, through my library. What universe does Ezra Abrams inhabit? Someone has been watching too many spy thrillers. Didn’t they get the message that Jstor had dropped charges and opened its archives to the general public?

142

Harold 01.22.13 at 5:48 am

Gee, the 1912 issue of Romance Philology must be worth about $200.00!

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