Those of us who covered Chelsea Manning’s court martial at Ft. Meade relied on the drawings of artists in attendance to illustrate our coverage of witnesses testifying, dramatic proceedings, and vital courtroom moments. Debra van Poolen, one such artist, wrote about her experience here. I’ve thanked Debra in a piece explaining the value of her and others’ images, first published here at WARP Place. Relatedly, see artist Clark Stoeckley’s book-length graphic account of the trial here.
We are, increasingly, a visual people, overloaded with imagery at every turn. Thus the army’s (and administration’s) strategy to turn what should have been a trial available to the public for witness, conversation, and debate into a covert one made sense. No cameras, no cell phones, no computers in the courtroom. Metal detectors scanned our every inch for a hidden lens or wire. Uniformed muscles with weapons lined the walls, escorting us out to stretch our limbs and rest our eyes, watching, retrieving us. In the media room, a relaxed appearance betrayed an even more sinister crackdown on any attempt to publicize the show trial of U.S. Army Private Chelsea Manning.
By and large, the mainstream media ignored the trial. We few reporters followed proceedings on a delayed video feed, that—just next door to the NSA, capable of spying on Americans’ every communication—was conveniently, annoyingly liable to cut out at any minute, for several at a time. So adverse was the Army to the public witnessing the immense, inexorable courage of a 5’2” soldier who stood head and shoulders above her fear-stricken fellow servicemen that when a few seconds of video did seep onto the world wide web, Ft. Meade soldiers with handguns were assigned to patrol the media room, their hot breath on our necks as we tried to transcribe extensive motions in real time. Continue reading “On the import of Debra Van Poolen’s artistic witness”→
On May 24, 2013, I reviewed Alex Gibney’s WikiLeaks/Bradley Manning film ‘We Steal Secrets,’ focusing on its portrayal of Pfc. Bradley Manning. Read that review here. Alex Gibney wrote me a letter in response, reprinted in full below:
I read your recent review of “We Steal Secrets: the Story of WikiLeaks.”
Alex Gibney’s “We Steal Secrets” chronicles WikiLeaks’ front-page, world-shocking 2010 leaks from inception to publication to aftermath, framing WikiLeaks’ work as a meteoric rise giving way to a self-incurred implosion.
While I find fault with this view, and even its premise that WikiLeaks has failed and died (the site continues to publish Stratfor emails and Kissinger files, it just won an important Icelandic victory to resume accepting donations through Visa interlocutors, and the Freedom of the Press foundation continues to funnel anonymous contributions its way), I’d rather let others dissect its portrayal of Assange and WikiLeaks and instead focus on how it characterizes Bradley Manning. (Read WikiLeaks’ annotated copy of the film’s script here.)
Earlier this year, we took issue with some of director Alex Gibney’s comments associating whistleblowing with alienation, pathologizing Manning’s leaks and undermining his political values. Producer Sam Black emailed to assure us that, in fact, Bradley Manning is “a hero in the film. He is the moral and emotional center of a complex story about what should and should not be secret.”
Though the movie does laudably transition away from its opening focus on Julian Assange by reminding viewers that Manning is the courageous whistleblower who deserves at least as much public attention, Manning’s story only makes it into about a quarter of the two-hour film, which quotes journalists, former WikiLeaks members, high-ranking government officials, and fellow soldiers.
The time that is spent on Manning leaves much to be desired, and what it leaves out is as much to blame as what it includes. Ultimately, the resulting portrait of Bradley Manning is one of pity more than empathy, one that makes us feel bad for Manning rather than take a serious interest in his beliefs and his plight. Continue reading “What ‘We Steal Secrets’ leaves out”→
The United States cannot win its war on Bradley Manning. Though it sent a somewhat fragile young man off to war in Iraq, it produced instead a committed humanitarian; though it has caged him without trial for three years, one of them in torturous solitary confinement, it produced instead a fine, free spirit; though it brings its full weight to bear on a man who stands but five-foot two and tips the scales at one hundred and five pounds, it simply steeled his spine; though it restricts public access to pre-trial hearings and, in contradistinction to the First Amendment, threatens the meager group of gathered journalists and witnesses by stating today that access is not a right but a privilege, it produces instead a hunger for truth. Continue reading “The United States cannot win its war on Chelsea Manning”→
For the last three weeks in Ft. Meade, MD, Bradley Manning has had a pretrial motion hearing to seek accountability for the abusive treatment he endured at the Quantico Marine brig in Virginia, from July 29, 2010, to April 20, 2011. Manning was on Prevention of Injury watch (POI) or Suicide Watch his entire time in the brig, isolated in a 6×8 ft cell for 23 hours a day. For the first six months, he got only 20 minutes of sunshine a day. For the last month and a half, he had to surrender his underwear at night. For his entire time there, he was monitored around the clock, he had to ask for toilet paper and soap, and he had to wear metal shackles any time he left his cell. There weren’t detainees next to his cell, and when he left his cell the brig went in lockdown, so he was effectively barred from speaking to other inmates. And the military used his poor communication to justify his treatment.
About a dozen Quantico officials testified for several hours each to explain that Manning’s conditions were in his own interest: most said they thought he was going to kill himself because he made two nooses in prison in Kuwait — when he was left in a cage and no explained what was happening to him, he broke down. Yet Manning hasn’t hurt himself once at Ft. Leavenworth. Others said that because of the national security implications of Manning’s charges, and the fact that other detainees were “very patriotic,” that Manning was in danger of being attacked — they couldn’t explain, however, why he wasn’t put in protective custody (which has many fewer restrictions), or why he hasn’t been attacked while in medium security for a year and a half in Ft. Leavenworth.
This is painfully counterproductive. As professor Craig Haney — who defense lawyer David Coombs cited in court — told Congress:
Prisoners in long-term solitary confinement suffer psychological breakdowns from the lack of human contact that can lead to psychosis, mutilations, and suicide…
The military wouldn’t concede that Manning was held in solitary confinement. But in the portion Coombs quoted, Haney explains how prison officials use different terms to conceal these conditions:
I should acknowledge that the term “solitary confinement” is a term of art in corrections. Solitary or isolated confinement goes by a variety of names in U.S. prisons—Security Housing, Administrative Segregation, Close Management, High Security, Closed Cell Restriction, and so on. But the units all have in common the fact that the prisoners who are housed inside them are confined on average 23 hours a day in typically windowless or nearly windowless cells that commonly range in dimension from 60 to 80 square feet. The ones on the smaller side of this range are roughly the size of a king-sized bed, one that contains a bunk, a toilet and sink, and all of the prisoner’s worldly possessions. Thus, prisoners in solitary confinement sleep, eat, and defecate in their cells, in spaces that are no more than a few feet apart from one another…
Manning didn’t even get these “worldly possessions.” No matter what the military wants to call it, Manning was in solitary confinement.
The defense is moving to dismiss all charges based on this abusive treatment, based on the Article 13 prohibition against pretrial punishment. As an alternative, if the judge won’t through out the case, the defense requests at least 10-for-1 sentencing credit for the time Manning was in these conditions. Judge Lind is reviewing testimony and will probably rule in a few weeks. We return to court January 8-11, 2013.
There’s much more to unpack in each report, and I’d like to expound on how the chain of command ensured Manning never got out of solitary, but here for now are my summaries from the courtroom:
It’s no secret that the powerful in America are frequently immune to prosecution for committing far worse crimes than those by the powerless. Bush administration torturers are on book tours while torture whistleblowers are on trial. Wall Street executives are counting their bonuses while foreclosed homeowners are packing their bags. Life’s not fair.
That’s one reason why it was so startling to see Gen. David Petraeus resign upon learning the FBI had discovered his extramarital affair with biographer Paula Broadwell. Surely, the director of the accountability-free, drone-happy CIA could sleep around as he pleased and not fear a fellow government agency would rat him out, right?
Ah, the unexpected pleasures of the ever-growing security state. It turns out the FBI found out that Petraeus shared more than a bed with Broadwell — likely his emails, rife with classified information, too, though he claims that Broadwell got the information from officials in Afghanistan. And this administration hates nothing more than the unintended release of classified information: despite anonymously leaking favorable-but-Top Secret information to The New York Times on a weekly basis, the Obama administration has tried to use the Espionage Act to convict whistleblowers more often than all previous administrations combined.
But not so fast. Gen. Petraeus is still their man, with a reputation to uphold. So when President Obama was asked about the potential security breach, he said, “I have no evidence at this point, from what I’ve seen, that classified information was disclosed that in any way would have had a negative impact on our national security.”
The statement is crafted to appear interested in the good of national security, to appear to put America’s safety first. But the subtext says much more: There may have been a classified disclosure that didn’t impact national security at all, or that did so positively, but that isn’t a problem.
These comments directly contradict government arguments in a much bigger ongoing investigation: that of WikiLeaks and Pfc. Bradley Manning. Cutting off Manning’s ability to argue that he was a whistleblower, who knew that the information WikiLeaks released wouldn’t bring harm to national security but instead would properly inform the American citizenry, the government prosecution has fully precluded discussion of whether or not WikiLeaks’ releases brought harm to national security from the trial. Even conceding that WikiLeaks’ release of hundreds of thousands of documents may not have harmed national security, the government says the effect is irrelevant to Manning’s guilt or innocence.
But Gen. Petraeus — or any of the other high-ranking officials who leak Top Secret information, a classification level higher than anything Pfc. Manning is accused of releasing — will not be held to this standard.
This is the chilling effect on whistleblowing: share classified information with a biographer selling books by glorifying your war-making, and your president assures the press that you’ve caused no harm; share crimes, uncounted civilian casualties, and corporate backroom dealing with your fellow taxpaying citizens, and you face a potential life sentence in prison, not to mention nine months of confinement abuse, an extensively delayed trial, and your president’s declaring you guilty before trial.
Time and again, Bradley Manning is stepped on so the military can discipline dissent and discourage those he might inspire. Meanwhile, the prurient press is more curious about Petraeus’s sex life than the growing security state and the whistleblowers trying in vain to stop it before it consumes us all. We cannot afford to abide this double standard any longer.
[This post was first published at BradleyManning.org — view it there.]
The CCR argued its case at the Court of Appeals for the Armed Forces today for transparency in Bradley Manning’s court-martial trial. Judges questioned why the government forced the issue to come to court at all, instead of simply making the documents public.
By Nathan Fuller. October 10, 2012.
During oral arguments in the Center for Constitutional Rights’ lawsuit against the government seeking public access to basic court documents in Bradley Manning’s court-martial trial, judges for the Court of Appeals of the Armed Forces demanded the government explain why it wouldn’t simply provide these documents in the first place.
When Army lawyer Capt. Chad Fisher said that the court wasn’t constitutionally required to provide public access to documents like prosecution briefs, transcripts, and rulings, Judge Margaret Ryan interrupted him to ask what she called a “common sense” question.
“Why can’t you just give it to them? Instead of making this a constitutional case, why can’t you just be reasonable?”
Fisher was unable to directly answer the question. Instead, he gave an array of responses that circumvented the basic issue: he repeated his belief that the court wasn’t obliged to make these records public, he said the fact that the public could attend the hearings meant they were “open,” he complained that the defense wasn’t asking the proper authority, and he reiterated the government’s position that the availability of FOIA provided sufficient public and press access.
The five judges repeatedly questioned and challenged each of Fisher’s points, particularly the idea that FOIA requests, to which the government frequently takes weeks, months, or even years to respond, provided sufficient and contemporaneous access, especially considering the fact that FOIA requests in this case have already been denied. They also pushed back on Fisher’s claim that “Nothing has been withheld” from the public and the press, based on the idea that attending the hearings amounts to fully accessing the proceedings.
“How is oral argument sufficient if you can’t read the briefs?” one judge asked.
“It’s not as if they’re speaking a foreign language,” Fisher responded.
But as journalists from the 30 major media outlets who submitted a supportive brief in this case explained, the media (and therefore the public) needs these documents to adequately cover the case:
“Journalists rely heavily on court documents to gain and provide to readers the background of and context surrounding a legal controversy — awareness and understanding of which is often necessary to accurately report on the dispute. Prior access to the materials also allows reporters, the overwhelming majority of whom have no legal background or education, to process the oftentimes complex legal theories at their own pace, or to interview a legal expert who could explain the issues, so they are better equipped to understand what is transpiring in a proceeding they attend.”
Shayana Kadidal, the CCR lawyer arguing in court today, similarly contended earlier this year that providing openness-in-name-only effectively “choked off” coverage of Manning’s hearings.
But the judges, not seemingly satisfied with Fisher’s responses, kept returning to the more elemental point that the government could avoid this litigation and a potential ruling that would affect courts-martial to come by simply turning over the documents requested. The court already has a process in place to redact documents, the judges noted, and parties settle extrajudicial matters with a compromise out of court all the time, so it seems perfectly feasible for the government to comply with the CCR’s reasonable request for access to the documents.
In the midst of this questioning, Fisher did concede what the CCR has long observed: that Guantanamo tribunals – hardly beacons of transparency – were less secretive than Bradley Manning’s court-martial, because the public could access filed briefs and transcripts to those proceedings.
The CCR’s Kadidal fielded a similar though not quite as lengthy barrage of questioning from the appeals court judges. The first issue they raised was whether this court even has jurisdiction to make a ruling on this case, as their jurisdiction has been narrowly limited and it isn’t clear that they have standing to make a ruling that affects the press and public alike. Kadidal responded that the government hadn’t raised this issue in their replies, and so he would need an additional 10 days to file a supplement that addresses the court’s jurisdiction.
Judge Ryan also wanted to know whether there was precedent for this court to compel the production of documents that didn’t yet exist. She was referring to the CCR’s request for transcripts of RCM 802 conferences, the private telephonic meetings Judge Denise Lind holds between Ft. Meade hearings with both the defense and the prosecution. She also wanted Kadidal to account for how exactly the documents would hypothetically be produced: who would transcribe the hearings, or who would pay a stenographer?
Kadidal responded that an audio file would be acceptable, but on the issue more generally, he said he believes the court should make a First Amendment ruling granting the press the right to these documents and let lower courts adjudicate the logistics. Judges replied that it was unclear that the First Amendment affords contemporaneous access to these documents: in other words, it might be wholly constitutional for the court to provide these documents after the fact.
Kadidal will submit his jurisdictional supplement in 10 days, and the government will submit a reply less than a week later. It’s unclear when or if this court will issue a ruling, or when exactly the parties might return to court. We’ll update our coverage of this case as it unfolds.
Bradley Manning’s critics need to be more careful if they want to accuse him of breaking the law. The real outrage is the way prosecutors and the military more broadly have handled his case: the Marines and Army have violated their own code of justice in several ways, for several months, precluding a fair trial and making a mockery of the rule of law.
The complaints of critics reveal the fundamental hypocrisy in Manning’s case — the rule of law is not applied evenly. While war criminals, torturers, and known murderers walk freely, the military is aggressively punishing the messenger who exposed heinous crimes and rampant abuse. Prosecutors go beyond disciplining a soldier for stepping out of line, attempting to associate whistle-blowing with terrorism by charging Manning with “aiding the enemy.”
The most prominent injustice is what drew many to Manning’s plight in 2011: his abusive, brutal, and illegal treatment at the Quantico Marine Brig. Against nine months of recommendations of brig psychiatrists, Bradley saw sunshine only 20 minutes each day, was kept in solitary confinement, was put on prevention of injury watch, and was forced to stand nude nightly. The military says these conditions were in Manning’s best interest, that he was a suicide risk and without this treatment he would’ve harmed himself.
Newly surfaced emails reveal the truth: that three-star Lt. Gen. George Flynn, removed from Quantico and likely taking orders from the Pentagon, ordered Manning’s abusive treatment and ignored psychiatrists to keep Manning in solitary confinement. Such treatment is clearly punitive and therefore a violation of the Uniform Code of Military Justice (UCMJ). Manning’s lawyer, David Coombs, is motioning to dismiss charges based on this punitive treatment on 27 November. We’ll see if Judge Lind will hold the Marines accountable.
By the time that motion is argued, Manning will have spent 919 days in prison without a court martial. A speedy trial would’ve started nearly two years ago. Instead, delay after delay pushes litigation back further. Critics note that David Coombs had to ask for several delays, pushing the trial back himself. But in several cases, delays arose because the prosecution explicitly withheld basic documents that were material to the defence. For example, on 26 July, at 7:50 PM, just hours before the defence filed the motion to dismiss based on pretrial punishment, the prosecution handed over 84 emails relating to that punishment and revealed that there were 1290 more, which it later turned over in court. The prosecution sat on those emails for at least six full months before giving them to the defence at the eleventh hour, forcing Coombs to delay litigation of the motion to dismiss.
Similarly, the prosecution stalled in handing over thousands of discovery documents regarding the State Department’s reaction to WikiLeaks’ releases, and only did so when Lind finally forced their hands.
But how can Lind fairly adjudicate a trial that has already been ruled on by her superior officers? In April 2011, President Obama, Commander-in-Chief of the Armed Forces whom all inferior officers answer to, decreed that Bradley Manning “broke the law“. Echoing his commanding officer in March 2012, General Martin Dempsey, Chairman of the Joint Chiefs of Staff, said that Manning “did violate the law“.
Dempsey and the President should take note: it is unlawful command influence and a direct violation of the Uniform Code of Military Justice for either of them to have declared Bradley Manning guilty before trial. Both officials may say their comments were off-hand, but the message has been clearly sent to the judge, Col. Denise Lind — to rule in favor of Bradley Manning is to contradict your commanding officers.
So throughout these lengthy pretrial proceedings, PFC Manning’s due process rights have been deprived or infringed upon in many ways. But even before the process began, we knew that the rule of law was not being applied evenly. Instead, it’s aggressive persecution for the conscientious soldier and leniency or full immunity for officials in power.
Look at the treatment given to the war criminals that Manning exposed.
None of those revealed in the Collateral Murder video to have killed innocent Iraqi civilians and their rescuers have been prosecuted. None of the soldiers who handcuffed and summarily executed an Iraqi family, including women and toddlers, are on trial. Those who have been caught committing mass atrocities have been given light punishment, if any. Staff Sergeant Calvin Gibbs, ringleader of the “Kill Team” in Afghanistan that murdered unarmed civilians and took their body parts as souvenirs is in prison, but is eligible for parole in less than 10 years. Marine Staff Sergeant Frank Wuterich, who ordered the 2005 Haditha massacre that killed 24 innocent Iraqis (including children), got no jail time at all. None of the Marines who carried out the killings were even prosecuted.
Several more WikiLeaks revelations uncovered criminal acts. Hillary Clinton ordered US officials to spy on members of the UN. US officials covered up child abuse by Afghan contractors. The former president of Yemen took credit for attacks in his own country carried out by the United States. None of them face trial.
So much for the rule of law that Bradley Manning’s critics tout so widely. Those who commit war crimes get leniency or a welcome-home golf tournament; those who expose war crimes face life in prison without parole, and solitary confinement before trial to boot.
I’ve neglected this blog due to my increased and still increasing role with the Bradley Manning Support Network, and you can still find all of my recent writing at BradleyManning.org. But I want to collect my Bradley Manning coverage from this summer all in one place. Below are hearing reports, a few articles, and radio interviews. I’ll continue to add pieces to this recap in the coming days.
Incompetence or deception? Two years of evasions by the prosecution: “There is more secrecy surrounding the U.S. military’s ongoing prosecution of PFC Bradley Manning than the much-criticized Guantanamo Bay trials.. The hearings aren’t closed-door sessions, but more insidiously, they include no public records, no transcripts, and no public motions from the government. They provide so little media access that the Center for Constitutional Rights and several media organizations are suing the military for more transparency. The lawsuit follows protests from acoalition of media figures who say that they have been blocked from accessing even basic information about the trial.”
Debates, discussions, and reforms: “WikiLeaks immediately upended journalism as we knew it, filling newspapers with more revelations than editors knew what to do with, more scoops in a year than most journalists get in a lifetime, and more source documents than American journalists had ever had access to before. WikiLeaks blew holes in the wall of U.S. secrecy, and the world is better for it. As Julian Assange turns 41 in political limbo in Europe, and as Bradley Manning nears 800 days in jail without a court martial, we remember how much good WikiLeaks’ releases have done.”
Aiding the public is not “aiding the enemy”: “The prosecution contends that Manning can be charged with “aiding the enemy” if he merely knew that a third party, and in this case America’s enemies, could access information he released online. But Coombs argues, as the ACLU has argued, that this is wildly overbroad, leaving any information a soldier posted online vulnerable to this type of prosecution.”
Bradley Manning, military resistance, and the left: “While this bodes well for the resistance movement and may help breathe new life into antiwar coalitions, it lacks the urgency required to save Bradley Manning now. Ensign observed, “It’s easy to sit in forums and call for [Bradley’s] freedom, but the reality is there’s lots of work left to be done.” Indeed, we who wish to free Bradley from his unwarranted chains have under five months before his court martial trial, in which prosecutors aim to send him to prison for life without parole. Bradley’s case raises scores of issues in the abstract, but we must remember that Bradley Manning the person faces very real punishment for believing his fellow Americans deserved to know what their government does in secret.”
WikiLeaks volunteer and Bradley Manning Support Network advisory board member, Birgitta Jonsdottir, who produced “Collateral Murder” helicopter video, fears retaliation
[First posted for the Bradley Manning Support Network on May 17, 2012.]
U.S. District Judge Katherine Forrest delivered an important victory for civil liberties with an injunction late Wednesday prohibiting enforcement of Section 1021 of the National Defense Authorization Act. Noted supporters of PFC Bradley Manning were among those given standing to proceed, on the grounds that the vague language in Section 1021′s provision allowing for indefinite military detention curtails their free speech and due process rights.
Birgitta Jonsdottir — a member of the Icelandic Parliament who helped produce the “Collateral Murder” video allegedly released by PFC Manning — expressed concern in her affidavit that her work in support of WikiLeaks and Bradley Manning could endanger her future Constitutionally protected endeavors.
“[Jonsdottir] stated that Manning allegedly leaked the footage that formed the basis for the video “Collateral Murder.” She has received a subpoena for her Twitter and other social media accounts for materials relating to Julian Assange and Bradley Manning. Jonsdottir stated that due to that subpoena, and now in addition due to the passage of § 1021, she is fearful of travelling to the U.S.”
In a prior hearing, government lawyers representing the defendants (the most prominent being President Obama and Defense Secretary Leon Pannetta) had refused to offer the judge a single example of “what it means to substantially support associated forces” of terrorism. In Wednesday’s ruling, Judge Forrest affirmed that Jonsdottir had a legitimate reason to be concerned over the government’s refusal to explicitly exclude her work from the provision’s scope:
“Failure to be able to make such a representation… requires the court to assume that, in fact, the government takes the position that a wide swath of expressive and associational conduct is in fact encompassed by 1021.”
Government agents have already actively targeted supporters of Bradley Manning, such as Support Network co-founder David House. House recently secured standing in a separate lawsuit against the Department of Homeland Security due to a politically motivated search and seizure of his laptop and other electronic equipment.
Given the U.S. government’s Twitter subpoena and harsh treatment of other supporters of PFC Manning, Jonsdottir has already been forced to curtail her freedom of speech. She has had to decline invitations to speak in the United States out of concern that she could be held indefinitely if the government chose to interpret the provision against her.
However, Jonsdottir is inspired by Judge Forrest’s injunction. Speaking to a representative of the Bradley Manning Support Network this morning, she added:
“Those who criticize their government should never be made to fear the prospect of life in prison. And yet, a judge has just agreed that I have a legitimate reason to be concerned for doing nothing more than helping Bradley Manning to expose the unjust killing of civilians and journalists.”
Jonsdottir is referring to the Collateral Murder video Bradley allegedly released to WikiLeaks, which shows U.S. Apache soldiers gunning down Reuters journalists and Iraqi civilians coming to aid the wounded. Spc. Ethan McCord, who can be seen in the video carrying a wounded child to safety, has stated that this video “belongs in the public record.” For allegedly exposing this video and classified cables documenting other war crimes and governmental abuse, Bradley faces trial and a potential life sentence for “aiding the enemy,” instead of being rewarded for aiding the public.
Government prosecutors have been utilizing a similarly broad, flawed, and dangerous interpretation of the “aiding the enemy” charge in Bradley’s case. They have conceded that Bradley’s intentions were “pure” and they refuse to discuss any evidence of actual harm to national security caused by WikiLeaks — because there isn’t any. Vice President Biden long ago confirmed that fact. As the ACLU has noted, government prosecutors have gone way too far in their interpretation of the law. If they succeed in their retaliation against Bradley, they will have established an alarming precedent: that any soldier risks life in prison any time they speak to the press, because even a harmless, unintentional revelation of restricted information could be interpreted as aiding terrorism.
But this NDAA injunction is a step toward progress. It is heartening that Judge Forrest agrees that open-ended threats must not be used to suppress our First Amendment right to speak out — especially those who are supporting whistle-blowers like Bradley Manning.
Bradley Manning is scheduled to resume a series of pre-trial hearings at Fort Meade from June 6 – 8.
Chase Madar is a civil rights attorney and author of the new book on the accused WikiLeaks whistle-blower, called “The Passion of Bradley Manning.” The book looks at Bradley’s motives, his treatment by the U.S. government, and the political issues his case brings up. Chase answered a few questions for the Support Network about Bradley, his new book, and the crackdown on whistle-blowers in America.
You’re a civil rights lawyer, a writer on politics and civil liberties, and a contributing editor for the American Conservative. What drew you to Bradley Manning?
Few events scream to be written about like l’affaire Bradley Manning. First there’s Private Manning himself, he’s like someone out of a novel or a heroic folk ballad. He’s a small-town kid who’s become an international cause. He’s gay, he’s brainy, he’s critical of his country, but he’s intensely patriotic and a deep believer in responsibility for one’s country. He refuses to help round up Iraqi citizens and hand them over to the authorities who are, even after the U.S. occupation, still torturing prisoners right and left. He brings us incredible knowledge of our wars and of how our foreign policy works, and he gets severely punished. Manning is the last great Enlightenment martyr. The chatlogs with Adrian Lamo by themselves read like a tragic novella. I said he’s a novelistic character, but the drama is almost operatic.
A half dozen crucial issues collide in l’affaire Manning: how we assess national security threats; how we create 77million state secrets every year in this country; who we blame, and don’t blame, for civilian casualties; what the laws of war are really worth; how we punish Americans, how we punish foreigners, with solitary confinement. The injustice in this case really stinks in the nostrils. It’s been said a million times but I’ll say it again: if only Pfc Manning had tortured prisoners, or authorized torture, or illegally spied on Americans with warrantless wiretapping, or lied us into a catastrophic war…if the young private had done any of these things, he’d be a free man. If he had massacred civilians in Haditha, Iraq, or in Kandahar, Afghanistan, he’d be out of jail sooner. But bringing new knowledge to the American people, and to the world, this is unforgivable. Suddenly we hear that “rules are rules” and need to be enforced, this after the orgy of impunity among elite officials and ordinary soldiers over the past decade. Continue reading “Interview: Chase Madar, “The Passion of Bradley Manning””→
Audio of my talk is here, starting shortly after the 17-minute mark. When video of the talk or the rest of the conference is online, I’ll post that as well.
This weekend, beginning tomorrow night, the United National Antiwar Coalition (UNAC) is hosting a peace conference in Stamford, CT (just 45 minutes from Grand Central Station, NYC), to bring together major groups working to end war, imperialism, poverty, and social injustice.
I’ll be speaking briefly on a Sunday morning panel called “Victims of Political Repression Speak Out.” Representing the Bradley Manning Support Network, I’ll discuss the material PFC Manning is alleged to have leaked, why he shouldn’t be on trial in the first place, and how the military is railroading his court proceedings to make a chilling example of him.
This Thursday and Friday, March 15 & 16, I attended Bradley Manning’s motion hearing at Ft. Meade, MD. We held vigils outside the gate before the hearings began both days, and several supporters came inside the courtroom to show solidarity with the 24-year-old whistle-blower.
The first day is especially long, so I’ll give a quick synopsis of the major deliberations here:
On Thursday, the defense and prosecution debated the defense’s motions to bring evidence, namely FOIA requests and damage assessments, and witnesses, namely soldiers and Army personnel who’d testify about why they classified documents Manning’s accused of leaking.
The damage assessments are particularly important because we believe they reveal the government concluded that very little to no harm had resulted from WikiLeaks’ releases, which would be damning to the prosecution’s argument that Manning put lives at risk.
Thursday’s most dramatic moment: Manning’s lawyer, David Coombs, argued that the prosecution had so mischaracterized military law in order to block damage assessments from the court – contending that even if they were to turn over the three million pages of reports now, it’d set the trial back six more months and Manning another hundred days in prison – that he filed a motion to dismiss all charges.
Coombs called the prosecution’s mischaracterization “gamesmanship,” and this became more clear when the prosecution announced it could not speak on the relevance of the documents Coombs was trying to see because they are classified.
On Friday, private conferences delaying the proceedings were long, and the proceedings themselves were awfully short. The judge denied Coombs’ motion to compel the witnesses, said she’ll deliver a ruling on the evidence, and set the next hearing for April 24-26. Bradley’s 660th day in prison passed without getting a court martial date.
[This was first published here for the Bradley Manning Support Network.]
Last month, a video showing four uniformed U.S. Marines urinating on the bloodied corpses of dead Afghans went viral, returning – if briefly – to our national discussion the depravity of war and the inhumanity of those sent off to fight it.
The video also reignited debates about whether soldiers of these repugnant spectacles are merely “a few bad apples” running rogue or instead a disturbing manifestation of a more insidious, fundamental, and pervasive immorality at the heart of war. In doing so it recalled more obscene instances in the past, such as the Abu Ghraib torture scandal or some of Guantánamo’s darker secrets.
It also might have reminded you of the so-called “Kill Team,” the U.S. Army platoon in Afghanistan whose commander directed his soldiers to murder unarmed Afghani civilians, killed another himself, then removed and collected body parts as souvenirs.
The ‘Kill Team’ story got major media attention, spurred war-mentality discussions, and put the soldiers involved and their Staff Sergeant in charge on trial. But what came of their indictment?
Several soldiers were prosecuted in the incident, with varying severity. These include Pfc. Andrew Colmes, who pled guilty to the murder of innocent Afghan civilians and was sentenced to seven years in prison. Staff Sergeant David Bram was convicted of solicitation to commit murder, conspiracy to commit assault, and attempting to obstruct the investigation into the Kill Team’s rampage. He was sentenced to five years in prison, but he’ll be eligible for parole after the first three.
Then there’s Staff Sergeant Calvin Gibbs, dubbed the ringleader of the Kill Team. Gibbs was convicted of murdering a civilian, Marach Agha, and planting a weapon next to him to make it seem like he’d killed a militant. He was also convicted of murder for inciting one soldier to throw a grenade at a 15-year-old Afghan civilian, Gul Mudin, and another to shoot the boy afterward. Gibbs was said to play with Mudin’s corpse “as if it was a puppet,” collect teeth and finger bones, and keep part of the victim’s skull. Gibbs’ punishment was most severe, sentenced to life in prison, yet he will be eligible for parole in less than ten years. According to the Guardian, Gibbs’ “jurors acceded to the convicted soldier’s plea to have the hope of being reunited with his son.”
Compare this treatment with the prospective and intended treatment of Pfc. Bradley Manning. Whereas Gibbs, who murdered, conspired to murder, and treated war like deer-hunting bloodsport, was quietly tried and awarded the chance of extremely early parole, Manning could face life in prison without parole or even the death penalty, if his jurors so choose. What about Manning’s hope to reunite with his family after prison, or come to terms with his gender-identity crisis? Manning didn’t kill a soul – will his jurors accede to his plea for freedom?
Gibbs was not kept in solitary confinement for ten months against his will. He wasn’t forced to strip naked in prison at night as Manning was in Quantico. Gibbs’ Article 32 hearing was not delayed 18 months and then held so as to minimize media access. His Commander-in-Chief did not declare Gibbs guilty before he even stepped inside a courtroom, as President Obama declared of Manning eight full months before his hearing. Well-known former governors did not demand that Gibbs be executed.
Or consider another ongoing military investigation. Marine Staff Sgt. Frank Wuterich is being tried for his alleged involvement in the 2005 Haditha killings, in which Marines murdered 24 Iraqi civilians. In what witnesses describe as a massacre, Wuterich ordered his squad to “shoot first, ask questions later.” His Marines then shot two dozen unarmed Iraqis, including women and children. If convicted of all charges, Wuterich would face life in prison. Yet at his Article 32 pre-trial hearing, the Investigating Officer, a fellow Marine officer, recommended the major charges be dropped in favor of a lesser one, negligent homicide, that’d only carry a maximum 3-year sentence. But that wasn’t enough: Sgt. Wuterich was just awarded a plea deal in which he pled guilty to “dereliction of duty,” which carries minimal punishment, and then the military judge in his case recommended that he spend no time in jail at all.
Furthermore, it was recently revealed that Sergeant Sanick Dela Cruz testified that Wuterich, his commander, killed five Iraqis and then ordered Dela Cruz to lie about it. Dela Cruz only testified against Wuterich in exchange for immunity – the government dismissed murder charges against him when he agreed to testify in Wuterich’s trial. So Dela Cruz, who also admitted to urinating on one of Wuterich’s corpses, will get off with no jail time, for bringing to light these war crimes and military abuses. The irony is not lost on anyone familiar with Manning’s case: Manning was never accused of murder, desecrating dead bodies, or covering up crimes, but he’s looking at a caged life with no hope for parole or freedom, while actual murderers and those who lied for them get lessened charges or full immunity.
So why is Manning treated this way? In 2010, Admiral Mike Mullen said that WikiLeaks’ source for the Afghan War Logs “might already have on [his] hands the blood of some young soldier or that of an Afghan family,” a year and half before Manning’s pre-trial hearing. Google searches for Mullen’s comments on Staff Sgt. Gibbs’ murder, photos playing with dead bodies, and body-part trophies yield no results.
As Charles Davis writes for Al Jazeera, “While killing unarmed civilians for sport may not be officially sanctioned policy, it doesn’t threaten the functioning of the war machine as much as a soldier standing up and refusing to be complicit in mass murder.” In other words, Wuterich’s and Gibb’s murders don’t interfere with America’s wars in the Middle East in any meaningful way. They’re embarrassing when made public and incur scorn from the international community, but they don’t have any real effect on U.S. foreign policy. By contrast, Bradley Manning’s alleged actions, in highlighting grave abuses, airing diplomatic secrets, and calling attention to otherwise unnoticed crimes, are considered an impediment to American policy. According to CNN, negotiations between the Iraqi government and the Obama Administration broke down over a dispute about immunity for U.S. soldiers there, specifically due to a cable released by WikiLeaks. Due to this breakdown, the U.S. had to fulfill its promise to withdraw troops from Iraq, leading many to credit Bradley Manning with helping end the nearly 8-year occupation.
Comparing Wuterich or Gibbs with Pfc. Manning sheds much-needed light on some ugly truths of the U.S. justice system. Referencing the Kill Team specifically, Davis suggests that if Manning “had murdered civilians and desecrated their corpses – if he had the moral capacity to commit war crimes, not the audacity to expose them – he’d be better off today.”
But the government would argue that Pfc. Manning’s case is of special interest, and therefore deserves magnified punishment, because he indirectly “aided the enemy.” This is the charge that carries the potential death penalty, that Manning’s lawyer requested be dropped in the Article 32 hearing, and that leads prominent pundits to declare Manning a “traitor.” This will be the charge that sets a precedent in the war on whistle-blowing.
It will also surely be distorted by Manning’s prosecutors, because if the military disciplined soldiers based on honest assessments of what truly “aids the enemy” – and what does not – it would require harsher punishment for soldiers following orders and leniency for an intelligence private releasing improperly classified documents he believes the public should see.
It would also require investigating prominent U.S. politicians. In late 2010, American officials including former New York mayor Rudolph Giuliani, former secretary of homeland security Tom Ridge, former White House homeland security adviser Frances Townsend and former attorney general Michael Mukasey attended a forum held by supporters of the Mujaheddin-e Khalq (MEK), a group the United States has designated a terrorist organization since 1997. As Glenn Greenwald writes,
Even though the actions of these Bush officials violate every alleged piety about bashing one’s own country on foreign soil and may very well constitute a felony under U.S. law, they will be shielded from criticisms because they want to use the Terrorist group to overthrow a government that refuses to bow to American dictates.
If the U.S. was genuine in disciplining those who “aid the enemy,” they’d be investigating and indicting U.S. officials openly supporting a group the U.S. deems a terrorist organization.
They’d also be paying closer attention to what those they’ve captured have to say. On the rare occasions when suspected militants are caught and tried, they say what radicalized them toward terror is the American killing of Middle Eastern civilians. As Chase Madar writes,
terrorists themselves have freely confessed that what motivated their acts of wanton violence has been the damage done by foreign military occupation back home or simply in the Muslim world. Asked by a federal judge why he tried to blow up Times Square with a car bomb in May 2010, Pakistani-American Faisal Shahzad answered that he was motivated by the civilian carnage the U.S. had caused in Iraq, Afghanistan, and Pakistan.
Examine again what Sgt. Gibbs and his soldiers did in Afghanistan: killing innocent Afghani civilians (including a 15-year-old boy), removing their fingers, playing with their corpses. This is what provides rhetorical ammunition for Al Qaeda and its offshoots, who can point to events like this as catalysts for their rage. This is indirectly “aiding the enemy” as a blatant and obscene symbol of American invasion.
This is also the type of behavior that Pfc. Manning is accused of revealing. One State Department cable that WikiLeaks published documents a harrowing atrocity in Iraq, “wherein one man, four women, two children, and three infants were summarily executed.” The killings were illegal, a US airstrike attempted to destroy the evidence, and yet no soldiers have been held accountable. Releasing this cable did not “aid the enemy”; it’s the killing itself that spawns outrage and radical militancy.
Sgt. Gibbs, Sgt Wuterich, and the soldiers who followed their orders have confessed to the blood on their hands, and they will be granted plea deals and near-immunity. Defense Secretary Robert Gates declared that claims of damage done as a result of WikiLeaks’ releases were “significantly overwrought,” and yet Pfc. Manning could be sent to prison for life.
But Manning’s case is not truly about disciplining a soldier for “aiding the enemy” at all. If it were, Sergeants Gibbs and Wuterich would be those on high-profile trial, worrying they may never be free again. Instead, Manning’s trial is about punishing the messenger to dissuade those who find his courage inspiring. It sends a clear message that no matter the abuse, shedding desperately needed light on unpunished crimes will not be tolerated.
[This piece was first posted here, for the Bradley Manning Support Network.]
In his closing statement two weeks ago, PFC Bradley Manning’s defense attorney David Coombs said of the information released, that it is all out in the public, and yet it hasn’t caused any harm. “If anything, it’s helped,” he said. Coombs called the government’s warning about the impact of the releases a “Chicken Little response” — a response the media has picked up on. He said officials were saying the “sky is falling, the sky is falling” over and over. But, he said, “The sky has not fallen, is not falling, and will not fall.”
He alludes to an inconvenient truth that is not well hidden, but also not well understood by many reporters seeking to summarize the WikiLeaks’ story. The sky is not falling because most of the documents WikiLeaks released should not have been classified in the first place. The U.S.’s classification system is poorly regulated, to say the least, as hundreds of thousands of documents are unnecessarily classified every year.
President Obama’s Executive Order 13526 clearly states:
In no case shall information be classified… in order to: conceal violations of law, inefficiency, or administrative error; prevent embarrassment to a person, organization, or agency… or prevent or delay the release of information that does not require protection in the interest of the national security.
U.S. government classification over time (graph by the Information Security Oversight Office). Click for larger image.
Unfortunately, the government is not following its own laws. Using these standards to assess actual classification practices, an internal government review by the Information Security Oversight Office (ISOO) found that, in 2009, 35% of the classified documents examined did not meet the classification criteria.
The problem with poor oversight of government classification has been growing for decades – at least since Nixon’s administration prosecuted Daniel Ellsberg for leaking the Pentagon Papers – but since 2001 it has exploded. To understand how this happens, it helps to know some specifics about our classification authority structure and process.
Currently, more than 4.2 million people have classification clearance, while 1 million hold Top Secret clearance. But even though there are literally millions of low-level government employees and contractors with the authority to classify documents, most of these classification decisions will never be reviewed by a second party.
Furthermore, so many documents are classified in part due to what the Brennan Center for Justice calls the “skewed incentive structure” of the system, wherein officials face no repercussions for classifying documents that don’t meet the criteria, but there are severe consequences for failing to keep sensitive information secret. Whenever remotely unsure, officials err on the side of caution.
One of the ancillary effects of WikiLeaks releasing thousands of diplomatic cables is that it calls more public attention to just how increasingly massive and harmful America’s culture of overclassification really is.
Bradley Manning’s defense requested dozens of witnesses who the military investigation officer chose not to compel to testify at the hearing. Some of the most important witnesses were being called upon to testify directly to this problem of overclassification.
For example, Coombs asked that retired Defense Secretary Robert M. Gates testify
that the Afghanistan and Iraq SIGACT releases did not reveal any sensitive intelligence sources or methods. He will also testify that the Department of Defense could not point to anyone in Afghanistan or Iraq harmed due to the documents released by Wikileaks. He will testify that the Afghanistan and Iraq SIGACTs are simply ground-level field reports that document dated activities which do not disclose sensitive information or our sources and methods. [He] will also testify that the initial public descriptions of the harm to foreign policy due to the publication of diplomatic cables were ‘fairly significantly overwrought.’
Government officials are well aware of the problems with staff being able to improperly classify documents without repercussions. Some seek to address it, and some use it to their advantage. Criticisms of the U.S. government’s classification system have come from high-ranking government authorities on a recurring basis for decades. A number of congressionally commissioned reviews have requested that the problem be addressed, and even former Bush Administration CIA Director Porter Goss admitted, “We overclassify very badly.”
President Obama directed a 2009 memo to address overclassification, but the problem has increased under his presidency. According to the ACLU‘s ‘Secrecy Report’ issued this year (PDF), the U.S. classified 76,795,945 documents in 2010, the most in history and eight times as many as were classified in 2001. It’s also 300 times more than were released in Cablegate, which was the largest leak of documents in U.S. history at 251,287. Classifying that many documents is incredibly expensive. According to the Information Security Oversight Office, the government spent more than $10 billion on classification in 2010 alone (PDF).
Overclassification on this gigantic scale has real ramifications for policy. As the Brennan Center argues, overclassification “jeopardizes national security,” “prevents federal agencies from sharing information internally, “contributed to intelligence gaps in the months before the September 11, 2001, attacks,” and “corrodes democratic government” by hiding valuable information from national discussions.
WikiLeaks reveals exactly how this extensive secrecy shapes foreign policy. Glenn Greenwald highlighted reports suggesting that WikiLeaks’ release of a diplomatic cable chronicling U.S. soldiers’ summarily executing several Iraqi civilians, including small children, strained relations between the United States and Iraq and encouraging Iraqi leaders to reject the Obama administration’s deal to keep U.S. troops after the 2011 deadline. As Greenwald says, “whoever leaked that cable cast light on a heinous American war crime and… thus helped end this stage of the Iraq war.”
Several governmental and independent figures have recommended remedies for this system, including requiring officials to justify classification, auditing classifiers’ records, and cash prizes for spotlighting documents that are unnecessarily classified. But as Jennifer Lynch and Trevor Timm of the Electronic Frontier Foundation argue, none of these would be necessary if the Obama administration followed through on his 2009 transparency proposals. The issue is gradually gaining traction in Congress, though. In a December, 2010, hearing on WikiLeaks, Rep. John Conyers pushed back against calls to prosecute WikiLeaks founder Julian Assange, citing overreach “by the Executive Branch when it comes to classifying documents.”
From President Obama’s Memorandum on Transparency and Open Government, 1/21/09
If the Obama Administration wants to show it’s serious about addressing overclassification and to regain some credibility regarding its ability to protect whistle-blowers, it needs to acknowledge David Coombs’ closing argument explaining why PFC Manning is being unfairly and arbitrarily overcharged.
In his closing words, Coombs implored the military to “give the government a reality check,” and to live up to its own professed standards of openness and accountability.
Let’s tell them, he said, quoting former Supreme Court Justice Lois Brandeis’ famous call for transparency, that “sunlight is the best disinfectant.”
Here are the notes I took on the final day of Bradley Manning’s pre-trial hearing. The last day was brief – the defense and prosecution each gave their closing statements, and we were out of the courtroom in an hour – but revealing. Each side suggested the type of arguments they planned to make if and when the case goes to court-martial, with the prosecution meticulously reviewing each item of the alleged leak, and the defense outlining the military’s incompetence in handling Manning, and requesting a far reduced set of charges that would reflect a more honest understanding of what has been released. David Coombs, Manning’s chief legal counsel, opened his statement appropriately, addressing the Investigating Officer directly: “You are in a unique position to give the United States a reality check.”
After the hearing adjourned, I accompanied Dan Ellsberg and Jeff Paterson to a brief press conference. While I was taking pictures, a pair of civilian lawyers who’d attended the hearing approached me with a barrage of questions about the proceedings – “Where are the warrants for these searches of files at Manning’s aunt’s house? … Where is the motion to suppress that evidence? … Are they even going to have to verify these alleged chat logs?” With limited information and no access to Coombs directly, I pointed the lawyers to Paterson, a Bradley Manning Support Network director and spokesperson, but he had few answers too.
One lawyer turned and bitterly mumbled “kangaroo court.” The other looked exasperated. “More questions than answers,” she said.
My only answer to those questions now is that I expect them to get more attention in the full trial. Maybe they should have been addressed at the hearing, but Coombs clearly has a strategy for working with what he’s got – which, in light of his closing argument, may involve a plea deal.
But the lawyers’ inquiries encouraged me to challenge plenty more dubious aspects of the hearing.
First, the prosecution’s argument that Manning “knew our enemies use the Internet,” knew they could access WikiLeaks, and leaked online sounds incredibly broad. This claim allows for anyone to be considered an enemy of the United States, and so leaking anything online is “indirectly” aiding our adversaries no matter where it is. As EFF writer Trevor Timm notes time and time again, though, while Manning sits in prison or in trial for these releases, ‘anonymous’ U.S. officials routinely leak classified information to the front page of the Washington Post or the New York Times, as is politically convenient. As Timm and Glenn Greenwald frequently remind us, Bob Woodward has made a living off of publishing secret information via anonymous sources all the time. All of that information is, anonymously sourced, on the Internet. So the claim that leaking classified material online has anything to do with our enemies will always be made in bad faith. Then again, with President Obama’s expansion of executive powers in declaring wherever Anwar Al-Awlaki is to be part of a battlefield, or with the National Defense Authorization Act allowing for the indefinite detention of U.S. citizens, the claim that anyone could be an enemy falls right in line with American foreign policy.
The prosecution did reference these enemies and adversaries with a bit more specificity: Capt. Ashden Fein said Al Qaeda, Al Qaeda in the Arabian Peninsula, and our “classified enemies” have access to the leaked information. At least the first two have been declared adversaries of the United States – but “classified enemies”? We’re not even allowed to know who our military is fighting?
Concluding his closing statements, Fein played an Al Qaeda propaganda video, in which a spokesperson discussed the State Department cables and said those fighting in the name of God have resources available to them on the Internet. We are supposed to be scared, and we are supposed to be angry with Manning for giving the Terrorists what they need. But with a necessary reality check, as Secretary of Defense Robert Gates was willing to give us, calling the WikiLeaks releases only “embarrassing” and the harms “modest,” it’s easy to see this claim is vastly overblown.
I hope these questions, those the lawyers introduced, and many more will be raised and explored at the (expected) court-martial. If the hearing is any indication, though, it won’t be easy: the military is keen to suppress journalist access, make a scene of uniformed supporters, and deny nearly all of the defense’s requested witnesses. But that’s what WikiLeaks has always been about – seeking truth and answering questions in the face of ever-powerful adversity.
Today National Journal reports that since March, the Justice Department has been investigating former top CIA lawyer John Rizzo for allegedly disclosing classified information about that agency’s highly secretive drone program. The Justice Dept. opened the investigation following Newsweek’s article, “Inside the Killing Machine,” in which Rizzo divulges specific details about the drone program.
A major factor contributing to the program’s growing problems is its secrecy. The US government does not admit that it has a drone program, though the public has known about it for years, and it has its own congressional caucus. Last month, when Brennan was asked about its existence, he “struggled to suppress a smile, he said, ‘If the agency did have such a program, I’m sure it would be done with the utmost care, precision…’ and the next part was garbled by the laughter of the audience…” Hilarious.
Perhaps Brennan is reluctant to acknowledge the unmanned weaponry because many suggest that it’s illegal.
Surely leaking any information to the press about this Top Secret, accountability-free program would illicit calls of outrage, widespread condemnation, serious charges, and long-term imprisonment for John Rizzo, right?
“people familiar with [Rizzo’s] investigation said they expected this one to end with some sort of formal reprimand, and possibly a financial penalty such as a decrease in his government pension, rather than with his imprisonment.”
So for giving an exclusive interview, in which Rizzo freely gives his own name before leaking details about the secret program, he could be subject to a strongly worded letter. Meanwhile, as Trevor Timm noted, for allegedly leaking war crimes and government abuse, PFC Bradley Manning has been imprisoned for a year and a half, including 10 months of torturous solitary confinement, and has still yet to stand trial.
Why will Rizzo get a meaningless censure while Manning gets accused of the vague, unprecedented, “aiding the enemy”?
This is an illuminating example of what Glenn Greenwald labels our two-tiered justice system, wherein the powerful are shielded from accountability and the weak are made examples of, instead of living equally under the law.
John Rizzo has been called “the most influential career lawyer in CIA history,” who approved some of the CIA’s most controversial programs. This Frontline report on Rizzo says his accolades include “helping draft the ‘extraordinary’ presidential authorization that provided the legal underpinnings for many of the war’s covert actions, and helping come up with the ‘enhanced interrogation program’ and the CIA’s secret prison system” – in other words, some of the United States’ most egregious offenses of the last decade.
Clearly, Rizzo is a man of great importance to the US government. According to Rizzo, “during the presidential transition, Obama’s team ‘signaled’ that they had no intention of rolling back many of the CIA’s controversial programs.” It follows, then, that Obama’s DoJ won’t punish this leak with anything more than a “formal reprimand.” The investigation hasn’t concluded yet, and it’s theoretically possible that Rizzo would be prosecuted more severely. But as the National Journal sources concede, “Investigations,” let alone prosecutions, “into current or former senior CIA officials like Rizzo are exceptionally rare.”
The 22-year-old PFC Manning, on the other hand, who leaked lower-level classified documents, is of no importance to the U.S., and thus awaits his trial in prison. Manning is comparatively weak, and is part of Obama’s larger crackdown on whistleblowers generally. The gap between the two tiers of justice widens further.
Charlie Savage has an exclusive story in the New York Times on the details of the United States’ secret memo, written by administration lawyers, laying out arguments for the targeted killing of U.S. citizen Anwar Al-Awlaki. The memo, which remains classified and was discussed anonymously, is of particular importance because the Obama administration has thus far provided no evidence of al-Awlaki’s wrongdoing and no explanation for why the killing doesn’t violate the Fifth Amendment‘s due-process guarantee suggestion. Furthermore, Yemen expert Gregory Johnson has strongly downplayed the claim that Awlaki was even a legitimate threat, explaining, “He is far from the terrorist kingpin that the West has made him out to be. In fact, he isn’t even the head of his own organization, Al Qaeda in the Arabian Peninsula.”
The lawyers explored various legal arguments, but “rejected each in turn,” apparently none of them troubling enough to impede America from killing one of its own citizens (and another, less discussed, “collateral damage” American). All of this disturbingly casual, bureaucratic legalese only reinforces Charles Davis’ point that the question we should ask isn’t whether the killing was legal, but whether it was moral.
As Savage notes, the memo was drafted by former Office of Legal Council lawyers David Barron and Martin Lederman, the latter of which criticized the Bush Administration for claiming “the constitutional power to defy a number of extant statutory restrictions on executive war powers that would otherwise cabin the Commander in Chief’s discretion.” The irony is obvious, and only adds to the list of Bush critics who later defend Obama for similar or (in this case) far worse policies.
But Marcy Wheeler (aka EmptyWheel) notes another irony: that the information of the secret memo, leaked anonymously to Charlie Savage, is more secret than the documents PFC Bradley Manning is alleged to have leaked to WikiLeaks, yet those who spoke to Savage enjoy impunity while PFC Manning has been imprisoned for more than 500 days.
As the Washington Post and Democracy Now report, diplomatic cables recently released by WikiLeaks reveal the United States attempted to dissuade the Afghanistan government from ratifying the Convention on Cluster Munitions. Afghanistan joined at least 61 other countries (though one cable puts the number at 93) in vowing to “destroy their stockpiles and clear the munitions remnants from their territory.”
Cluster bombs are especially heinous because they release many smaller explosives and disperse over such a vast area, they “cannot distinguish between military targets and civilians.” Often some of the smaller munitions fail to detonate, becoming inadvertent landmines.
As this cable details, the United States has not signed the treaty because it believes “cluster munitions continue to have military utility.” Furthermore, the U.S. argues that article 21 of the convention allows for signatories to “continue to cooperate and conduct operations with U.S. forces, and in turn for U.S. forces to store, transfer, and use U.S. cluster munitions in the territory of a State Party,” effectively circumventing the convention entirely. The U.S. continues, suggesting that a “low-profile approach will be the best way to ensure a common understanding that the CCM does not impede military planning and operations between our two governments.”