Chain of Command: Some Violations of Military Discipline Are More Equal Than Others

The other day, Teddy Partridge noted a second instance of someone in the military–the previous one being the Commander-in-Chief–weighing in on Bradley Manning’s guilt.

Echoing his commander in chief in issuing statements that provide improper command influence in the trial of Bradley Manning, the Chairman of the Joint Chiefs of Staff, Gen. Martin Dempsey, stated unequivocally that Manning broke the law.

To review, here’s what Barack Obama said when asked about Bradley Manning in April 2011:

And if you’re in the military… And I have to abide by certain rules of classified information. If I were to release material I weren’t allowed to, I’d be breaking the law.

We’re a nation of laws! We don’t let individuals make their own decisions about how the laws operate. He broke the law.

It appears that President Obama’s highest military officer agrees with him:

The Joint Chiefs chairman also was asked about Manning, the alleged WikiLeaks contributor, and whether Dempsey thought Manning should be viewed as a political prisoner, whistle-blower or traitor.

“We’re a nation of laws. He did violate the law,” Dempsey said.

Meanwhile, Staff Sergeant Robert Bales has not even been charged yet–his lawyer, John Henry Browne, says the military has neither forensics nor a confession incriminating him!–but Generals are sending Browne messages wishing him the best in his defense of Bales.

Browne added that he has received hundreds of emails, including from some generals and other military figures, who wished him luck in the case.

Don’t get me wrong. I hope Browne does his best to give Bales a robust defense. And as I’ve noted repeatedly, I’m not at all convinced that the killings occurred as the military currently claims they did; if so I hope Browne proves that, too.

But I would be shocked if any generals wrote David Coombs, Bradley Manning’s lawyer, to wish him luck in defending a tough, unpopular client. Yet both men–Manning and Bales–are alleged to have violated military discipline in ways that hurt our efforts.

Update: Fixed my misspelling of Bales’ name.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

28 replies
  1. emptywheel says:

    Note: I originally suggested that Dempsey was in the chain of command. He’s not, so I took that out of that post, but did not take the phrase “chain of command” out of the title of the post.

  2. MadDog says:

    Bmaz can probably tell us a few stories, but from my vantage point, John Henry Browne probably wouldn’t be my first choice in defense lawyers.

    Why you ask?

    1) The MSM drools about Browne in glowing terms. He represented Ted Bundy. He represented the Barefoot Bandit. Whoop-de-do MSM! I hate to be the one to tell you, but his clients lost their cases, got sent to prison, and in the case of Ted Bundy, was put to death.

    I’d kind of prefer an attorney who won his cases, wouldn’t you?

    2) As that Daily Beast (yechh!) article describes, Browne comes across as more interested in his own celebrity than winning his clients’ cases. Flamboyant, self-centered, and all ego defense attorneys are quite the rage in the MSM, but when push comes to shove, I’d rather be represented by a self-effacing successful lawyer that wins his cases.

  3. spanishinquisition says:

    “We’re a nation of laws! We don’t let individuals make their own decisions about how the laws operate. He broke the law.”

    How rich coming from Mr Due Process.

  4. PeasantParty says:

    @emptywheel: Thank you so much for posting these observations. I saw Teddy’s comment and his is completely right with the comparisons as are you. As you all know, I have been following the hearings closely to help the Dissenter with Live Blogging. The differences are stark and of no comparison.

    Mannings defense has been strong armed all the way through the process by the military and the government. Even his witnesses were struck for reasons that nobody can understand. It is clear that Manning is not getting a fair trial, nor a speedy one. I will be watching this one with great interest as well.

  5. lysias says:

    Anybody have any idea of what the case law of the U.S. Court of Appeals for the Armed Forces is like on unlawful command influence?

  6. prostratedragon says:

    We don’t let individuals make their own decisions about how the laws operate.

    The exact handwashing terms in which civil rights activists were accused and dismissed rhetorically, back in the day. The point being that such strictures do not stand above the contradictions between lesser and greater laws perhaps, or anyway law and truth, that is revealed by the challenge.

  7. Ben Franklin says:

    Bales, the lone shooter? Or, is the deductive reasoning powerhouse, Karzai, suddenly awash in investigators who can propose 16 shooters? Karzai or US? US or Karzai? Who to rely on for accurate info?

    fuck it.

  8. KWillow says:

    This thing sounds like another cover-up of an even worse crime. Of course our Dear Leaders don’t give a damm if a soldier goes berserk and murders civillians, and least, not in Afghanistan! They were pretty upset when it happened in the states, with a Muslim doing all the shooting.

  9. bmaz says:

    @MadDog: Nobody was going to walk Ted Bundy. As to the Barefoot Bandit, getting all federal and state charges pled at one time to concurrent six years seems like a pretty healthy win to me. He is known as being flamboyant, a media manipulator and very aggressive in his technical defenses. Looks plenty competent and aggressive to me, and that is what you want in a criminal defense attorney. As long as you are comfortable with it, being in the media is not a problem, unless you are stupid as to it or it consumes more of your effort than the actual defense (we have seen some of those). This chap looks okay.

    My question is how, and by whom, is he being paid?

  10. bmaz says:

    @PeasantParty: The rules and procedures of the Article 32 process explain the basis for the striking of most (though not all) of the witnesses you complain of on Manning. It is not at all clear that Manning is getting “an unfair trial” as you allege and it is crystal clear that Manning’s defense has had little qualm with the “speed” of the process (other than as a very brief interposition to get the deal on confinement conditions made, after which it was immediately dropped). Which is very smart, allowing matters to calm down and time to pass has served their case well. We shall see how things go with the Bales case, and the cases of any co-defendants (and I agree with Marcy there likely are a few, and probably both directly participatory and as accessories).

  11. MadDog says:

    @bmaz: I guess I’m just allergic to grandstanding personalities. Rubs me the wrong way, and were I sitting on a jury, I can’t help but think it unfortunately would get in my way of providing my best judgement.

    As to the payment, I thought I heard something when Browne initially showed up that the Bales family was the source, but I could be totally off base. I can’t imagine that Browne comes cheap and he did say in an early interview that this wasn’t pro bono.

  12. bmaz says:

    @lysias: The caselaw on undue command influence indicates that both of these instances are inappropriate, but that neither stands a snowball’s chance in hell of gaining traction as a ground for dismissal. And that is undoubtedly correct, although the statements may be inappropriate, it is hard to envision how they will overly prejudice the defendant beyond the prejudice he would already face under the circumstances. They are statements that should NOT be made though simply to maintain the appearance of process.

  13. MadDog says:

    OT – And just a note on the NYT’s “free” access policy on their front page this evening:

    “A Change to Free Monthly Access
    Beginning in April, nonsubscribers will have access to 10 free articles per month on NYTimes.com instead of 20.”

    Jim and I are laughing behind the scenes.

  14. bmaz says:

    @MadDog: My preference is to stay far clear of the press and just go litigate you case, so I agree. I have been impressed by how Coombs has stayed clear of the scrum. Smart. But there are lots of different styles, and many of them can be winning ones.

  15. spanishinquisition says:

    @Ben Franklin: I lean to there being more than one person involved rather than this guy being an uber Keyser Soze. With there being multiple bases around combined with all their sensors and cameras, I have a hard time believing nobody knew all this shooting was going on.

  16. Frank33 says:

    Once again Bmaz tell us to give up and let Manning be tortured for the rest of his life. Manning was imprisoned and and tortured and unable to get an attorney with courage. That is another tactic of Whole-of Government, although Bales will get the best legal representation.

    Bmaz does not know any attorneys with courage.

    Bradley Manning’s job was to imprison or help assassinate Irakis, targeted by a Fascist Army, illegally occupying their country. Manning rebelled.

    The US effort in Irak and Afghanistan and all the other wars are the same. Spy on their people, steal their resources, and murder and torture them. The American Army and the CIA and four million member Stasi on the SIRPNET, are bringing the wars home.

  17. MadDog says:

    @bmaz: The latest Browne brief via the AP:

    Soldier’s lawyer plans trip to Afghanistan

    “…I’m certainly not saying that we’re not taking responsibility for this in the right way, at the right time. But for now, I’m interested in what the evidence is,” he said…

    [snip]

    …Browne has said Bales has a sketchy memory of events from before and after the killings but recalls very little or nothing of the time the military believes he went on a shooting spree through two Afghan villages.

    “He has some memories of before the incident and he has some memories of after the incident. In between, very little,” Browne said.

    Browne said there were potential mental health issues for his client, but that he didn’t have expertise to make a qualified judgment. “Dragging parts of bodies around is not something that really you forget very often,” he said. “He’s in shock…”

    I haven’t been buying the “sketchy memory” story since it first surfaced. Sounds like a convenient lawyerly ploy to influence the public, but has little grounding in reality. I think amnesia, traumatic or otherwise, is a whole lot more rare than is often claimed.

    The other point that I would make is that Browne seems to be taking a tack that speaks to admission of responsibility, but seeks to mitigate punishment (life versus capital punishment).

  18. Frank33 says:

    It appears there is some Undue Bmaz Influence. We are supposed to sympathize with the poor victims, the Bale family, because of a statement from the wife of a mass murderer. That definitely is spin, trying to influence a future jury.

    Shorter Mrs. Bales: “We haz a Sad.” Yes it is a tragedy and has been for ten years and will be for ten more years. Meanwhile, Bradley Manning remains the worst person ever for revealing very marginal secrets, protected by…passwords.

  19. Brenda Koehler says:

    @Frank33: Yeah, I wasn’t impressed. Especially not by the use of the tidy euphemism “perished” instead of more realistic terms like “died”, “were killed,” or “were brutally murdered.”

  20. geoschmidt says:

    Ot sorry… but here goes:

    http://www.youtube.com/watch?v=P_4SjqZcJ8c&feature=related

    some damned good Irish music, and a old view of our one good president come late…which we will continue to mourne… a real good guy… if an if not other reason than… he held up a good image of what a president might be…. and when they put him down,… you knew…. you had to know… ghouls are running wild….monsters are running wild… apparently they ain’t much to stop the mutherfuckers…. guess it ain’t any of these phoney ass Attorney Generals… so through over the whole f’n long time common law… system of property recordation… oh throw all that out… you simple minded csr’rs cause we do know … being totally compromised, is a good start… a good way to be totally no good.

  21. MadDog says:

    OT – Via Wired:

    NSA Chief Denies, Denies, Denies Wired’s Domestic Spying Story

    “NSA chief General Keith Alexander faced tough — and funny — questions from Congress Tuesday stemming from Wired’s story on the NSA’s capabalities and warrantless wiretapping program.

    Congressman Hank Johnson, a Georgia Democrat, asked Alexander whether the NSA could, at the direction of Dick Cheney, identify people who sent e-mails making fun of his inability to hunt in order to waterboard them.

    Alexander said “No,” adding that the “NSA does not have the ability to do that in the United States.” Elaborating, Alexander added: “We don’t have the technical insights in the United States. In other words, you have to have […] some way of doing that either by going to a service provider with a warrant or you have to be collecting in that area. We’re not authorized to do that, nor do we have the equipment in the United States to collect that kind of information.”

    That statement seemingly contradicts James Bamford’s story, The NSA Is Building the Country’s Biggest Spy Center (Watch What You Say), as well as stories from The New York Times, the Los Angeles Times, USA Today and Wired, which collectively drew a picture of the NSA’s post-9/11 foray into wiretapping the nation’s telecommunication’s infrastructure to spy on Americans without getting warrants…”

    The latter part of Wired’s story deals with its real emphasis; namely that one needs to parse the NSA’s answers to the Congressional questions extremely closely in order really obtain their true meaning.

  22. rugger9 says:

    Noting the wife’s statement, remember that the most probable jury here for both is a general court martial, which will be all military and half enlisted. In other words, very sympathetic to Bales, very unsympathetic to Manning. The perceived natures of the crimes from the serviceperson’s point of view is that while Bales “acted out or snapped”, so to speak, Manning spied and sold them out. It doesn’t excuse the behavior of either, and certainly not the conditions of Manning’s detention [which we haven’t heard much about lately, by the way].

    While in an earlier post I fully expected Bales to suffer the full consequences, it looks more to me like a fix is in now. Recall that there are several more needing to go to CMs of various levels: the senior enlisted, the officers [they’re supposed to know what their men are doing], and the sentries with their watch structure [for letting a soldier wander off in hostile areas, unchallenged, even after gunfire was reported], and those individuals would only be too happy for SSgt Bales to be ruled gaga and locked away.

    The other thing about a fix is that it would enrage the Afghans, meaning Obama and Allen’s dreams to slow-walk the withdrawal past the elections might get blasted in a sea of protests, fratricide, and FOB attacks

  23. Brenda Koehler says:

    I have been reading comments on the military forums (well, two military forums) and they don’t really seem sympathetic to Bales since the news came out that he robbed the old couple of their life savings.

    It doesn’t seem the perceived nature of the crime is that he snapped anymore so much as that he was a lowlife who never should have been let in the military in the first place.

  24. rugger9 says:

    @Brenda Koehler: #27
    You can thank Shrub for that, Rummy’s DOD widened the allowable pool to include knuckleheads, selected felons, and people who wouldn’t pass high school. All to avoid having to draft the elite kids.

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