Honorable Military Whistleblower: Why Daniel Davis Is and Bradley Manning Is Not

One of the hottest, and most important, stories of the last week has been that broken by Scott Shane in the New York Times, on February 5th, of Army Lt. Col. Daniel L. Davis’ stunning report on the unmitigated duplicity and disaster that characterizes the American war in Afghanistan. It painted the story of a man, Davis, committed to his country, to his service and to the truth but internally tortured by the futility and waste he saw in Afghanistan, and the deception of the American public and their Congressional representatives by the Pentagon and White House.

And then, late last month, Colonel Davis, 48, began an unusual one-man campaign of military truth-telling. He wrote two reports, one unclassified and the other classified, summarizing his observations on the candor gap with respect to Afghanistan. He briefed four members of Congress and a dozen staff members, spoke with a reporter for The New York Times, sent his reports to the Defense Department’s inspector general — and only then informed his chain of command that he had done so.

Concurrent with Shane’s NYT article, Davis himself published an essay overview of what he knew and saw in the Armed Forces Journal.

The one thing that was not released with either Shane or Davis’ article was the actual Davis report itself, at least the unclassified version thereof. The unclassified Davis report has now been published, in its entire original form, by Michael Hastings in Rolling Stone in The Afghanistan Report the Pentagon Doesn’t Want You to Read.

The report is every bit as detailed, factually supported and damning as the articles by Shane and Davis portrayed. It is a must, but disturbing, read. If the American people care about economic waste and efficacy and morality of their foreign military projection, both the Obama Administration and the Pentagon will be browbeat with the picture and moment of sunlight Daniel Davis has provided. Jim White has penned an excellent discussion of the details of the Davis report.

My instant point here, however, is how Davis conducted himself in bringing his sunlight, and blowing the whistle, on wrongful US governmental and military conduct. Davis appears to have attempted to carefully marshal his evidence, separated the classified from the unclassified, released only unclassified reportage himself and to the press, taken the classified reportage to appropriate members of Congress and the DOD Inspector General, and notified his chain of command. Davis insured that, while the classified information and facts were protected from inappropriate and reckless release, they could not be buried by leveraging his unclassified press publication. In short, Daniel Davis is the epitome of a true military whistleblower, both in fact, and in law.

As I have previously delineated, there is no common law “whistleblower defense” umbrella protection, whether under American military law or civilian law. Despite the indiscriminate bandying about of the term by commenters, pundits and analysts across the spectrum, the “whistleblower defense” is a creature of statute, and simply does not formally exist other than where specifically provided for as an available affirmative justification defense. There is, however, just such a specific statutory grant of a whistleblower defense for the US military, and it is spelled out in the Military Whistleblower’s Protection Act, codified in 10 USC 1034:

(a) Restricting Communications With Members of Congress and Inspector General Prohibited.—
(1) No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.
(2) Paragraph (1) does not apply to a communication that is unlawful.
(b) Prohibition of Retaliatory Personnel Actions.—
(1) No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing—
(A) a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted; or
(B) a communication that is described in subsection (c)(2) and that is made (or prepared to be made) to—
(i) a Member of Congress;
(ii) an Inspector General (as defined in subsection (i)) or any other Inspector General appointed under the Inspector General Act of 1978;
(iii) a member of a Department of Defense audit, inspection, investigation, or law enforcement organization;
(iv) any person or organization in the chain of command; or
(v) any other person or organization designated pursuant to regulations or other established administrative procedures for such communications.

Daniel Davis may have a bit of a rough ride in spots with his military career from here on out because, well, they often just do not take well to the type of challenge from within the service he has made. But there is little to no chance that he will be busted out of the Army or rank, much less arrested, charged, subjected to an Article 32 Investigation and court-martialed. Davis made a good faith attempt to conduct himself within the scope of the Military Whistleblower’s Protection Act and honored his service and country in doing so.

That is not, however, how Army Pfc. Bradley Manning conducted himself (assuming arguendo that Manning indeed did what he is accused of, and the evidence to date, and reasonable inferences thereon, suggest he did). Although Manning appears to have released several classified items intentionally and specifically (for instance the “Collateral Murder video”), nearly all of the well over 250,000 classified documents, including the State Department cables, look to have been indiscriminately hoovered up and released just because they were there and he could. There is no evidence, nor reasonable view, by which Manning could have reviewed and understood exactly what the vast majority of documents were or what effect they may have.

Manning did not carefully prepare the material as Davis did, using only that which is necessary and taking precaution that classified information was protected and disseminated through legal avenues to Congress and the DOD IG pursuant to the Military Whistleblower’s Act. No, Bradley Manning impetuously and indiscriminately dumped the lot of it to the uncontrolled whims of a flaky, at best, foreign entity, WikiLeaks. And then proceeded to chat about it with a mentally unstable, known felon hacker, Adrian Lamo.

Now, all that said, there has been much good and sunshine that has resulted from Bradley Manning’s acts and, it appears, little in the way of grave harm as originally claimed. At this point, there is really not much dispute on that. Further, Manning appears to be a genuinely troubled kid who had his heart in the right place in wanting to get, at least as to the items he knew and understood, important information out to make a difference; although, it is more than a stretch to say that is credible as to the vast majority of the classified documents, which he had no idea of what was really contained therein. Most all of the documents were just an indiscriminate and petulant classified information dump by Manning.

It is easy to admire Bradley Manning, in a way, for his righteous ideals, and to feel pity and sorrow for the pain and lot in life he has experienced emotionally and physically both before, and after, his acts leading to his charging and incarceration. And I feel that for him. But such a feeling does nothing to detract from the fact he appears to quite clearly have committed clear offenses as to data transfer and information protection, not to mention conduct unbecoming, all in direct contravention of the UCMJ. You can quibble about whether Manning’s conduct constitutes “aiding the enemy”, and while that may seem to be an extreme reach to many, the technical elements can be argued by the government and sent to a jury. The remainder of the charges, however, appear clear cut if the government’s evidence is what it appears to be and is properly adduced at trial.

But, assuming Manning committed the acts, he is no heroic military whistleblower; in fact, he does not come close to even being legally eligible for the defense. Manning, instead – irrespective of what you think of him personally – a criminal who dishonored his service. There are laws under the UCMJ, and a military ethos and code of conduct against it, and for good reason. As Aaron Bady eloquently stated:

This is happening because Bradley Manning does not live in a democracy. He lives in the U.S. Army. The same is true when the “Manning hearing” gets called a “court case,” which it is not: we forget that while the United States is a democracy, the U.S. military is something different.
I don’t say any of this to justify what is being done to Bradley Manning, of course; I’m as appalled as anyone. But let’s look clearly at why it’s being done: the terms through which the military operates – where winning the war means giving up “normal” rights and concerns – make what is happening to him the very opposite of a scandal. It is normal for one person’s rights to be subordinated to some larger social imperative, however defined. This is what the military is, does, and must be. And when we have always tolerated (usually venerated) this non-democratic space at the heart of our democracy, a permanent state of exception to the right of things like trial by jury, this is what will happen as a result. Soldiers don’t live in a democracy; soldiers live in a military dictatorship, one ruled by martial law (in the most literal sense possible).

This is exactly right. No matter how much one admires Manning for what he did, the irreducible minimum is that there is a legitimate basis and need for military discipline and adherence to the code of conduct, and that was the system Bradley Manning swore to uphold, protect and live within.

Bradley Manning is a lot of things, but if he did the acts alleged, he is not innocent, and he is not a honorable military whistleblower. There was a path specifically laid out to where that could have been the case, the path Daniel Davis honorably followed. Bradley Manning went the opposite direction.

152 replies
  1. Frank33 says:

    Apparently, Col. Davis has violated security by revealing secrets.

    The Pentagon has launched an investigation into an independent report written by an Army lieutenant colonel for possible security violations, military officials said Wednesday.

    In an article published Sunday by the Armed Forces Journal titled “Truth, Lies and Afghanistan: How military leaders have let us down,” Army Lt. Col. Daniel Davis, who spent a year in Afghanistan delivering equipment to U.S. forces, strongly suggests that military leaders are lying about progress in the war in Afghanistan.

    “What I saw bore no resemblance to rosy official statements by U.S. military leaders about conditions on the ground,” he wrote in the article.

  2. chetnolian says:

    You will get a bad time over this post, but every now and then we need to be reminded that joining a volunteer army is a big step, which has consequences. I guess one of the problems is that volunteer armies in the modern day get joimed by young men and women to whom that is not made quite clear enough before they get there.

    None of what you say excuses the people who appear on the current information to have let such an obviously troubled person as Bradley Manning anywhere near such a volume of classified information without any control of what he was doing. In my view they ought to be in dock with him. No doubt you could point us to the chapter and verse for charges under military law.

    BTW BMAZ I seem to have lost your email, and, as I shall be in Mesa soon, I would appreciate a message. This time lucky perhaps?

  3. klynn says:

    Wonder how rank affected method of whistleblowing? I do not think Manning would have had a chance going through the chain of command.

  4. bmaz says:

    @klynn: Davis did not “go through the chain of command” either, he simply noticed them. Would someone of the rank and experience of Davis have a slightly easier time getting to Congressmembers and the DOD IG? Maybe yes, but it could absolutely have been done by Manning. But he did not even try. No, Manning’s first reaction was to dump the material with foreigners and a fly by night foreign internet site.

  5. Bob Schacht says:

    “…the terms through which the military operates – where winning the war means giving up “normal” rights and concerns …”

    Seems like “winning the war” under the AUMF is having a similar effect on civilian life, bit by bit. By passing the AUMF, Congress, wittingly or not, seems to have involved giving up the normal rights and concerns of American citizens.

    Bob in AZ

  6. PeasantParty says:


    I respect you and you know that. On Manning, we will have to agree to disagree. I say this because Manning’s facts have not been fully fleshed in the public realm yet. There has been several mentions that he went to his superiors with what he found on Collateral Murder and other items. You also have to remember that he was in Iraq and not stateside. The other point I would like to make is that the timing of the document releases from Manning and his outing by Lamo still have some scrutiny needed.

    It is my opinion that Manning’s forwarding of classified and post leak classified documents were helped by a Non-Military hacker wanna-be FBI agent. When I think about these things that we do know about the Manning Case such as he was in Iraq, had gone to his superiors many times, was being goaded by another fruitcake on the web, and finally trying to get some sort of daylight on the subjects; I have to keep location and circumstances in mind. Also, as another commenter suggests, Manning is a Private. His rank would not allow him the limited but stepped up freedom of Davis.

  7. MadDog says:

    A fine post bmaz! The only tiny quibble I would have would be the fact that the enlisted ranks, particularly those at the lowest rungs of the chain of command, in reality face a steeper whistleblowing hill than that of the officer ranks.

    In theory, they both have equal avenues to blow whistles. In reality, a low ranking enlisted person can’t compete with mid to upper level officer.

    Part of this reality is the fact that the military is also a very strict class or caste system where in general the lower your rank, the lower your value in the eyes of all in that system.

  8. bmaz says:

    @MadDog: There is no question that the road to comply with the Whistleblower’s Act would have been a little more difficult for Manning than Davis. But he did not even try. Before you sell out your service and commit blatant crimes, it seems to me you should at least try to do it the right way.

    @PeasantParty: Uh, Manning had leave in the US in January of 2010 and, while in Boston, discussed with a friend his desire to leak material. He had made initial contact with WikiLeaks/Assange two months prior to that. Gee, sure looks to me like he had more than sufficient opportunity, and was in the US with that ability. But, no matter, people will continue to wear rose colored glasses, ignore the facts and make excuses because it fits their outlook. It belies the facts and the law though. I respect Manning and feel sorry for him, but there needs to also be some homage to reality when it comes to who he is and what he has done.

  9. emptywheel says:

    @bmaz: I think where you and I differ is in the scope of what Manning did.
    The way he released this information undoubtedly (ultimately, though not at first) exposed some of our key partners overseas, even while exposing some big lies from the military and a whole bunch of information that had no business being classified. That’s a problem.

    But I think over the course of history, Manning will have been shown to have served his country, regardless of whether he fulfilled his oath to the Army. Yes, he will almost certainly pay for that. That is the way our laws work. But that doesn’t make what he did morally any less than what Davis did.

  10. Bob Schacht says:

    Davis also had the wits to organize what he knew into a telling narrative, which he could do because he had a better perch from which to view the war effort. Manning knew that what he had access to was important, but he had no idea of how to construct a narrative around it, so he just released the raw data (if that, indeed, is what he did).

    Bob in AZ

  11. PeasantParty says:

    @bmaz: I am not saying he did not commit Military crimes. What I am saying is that his decision on where and how to get the information out had to differ because of the situation and his rank.

    That is all. Yes, he did do it against all rules. However, maybe the lights need to shine on those rules and how they work to encompass all military personnel from enlistment to 5 star.

  12. Tom Allen says:

    Do you think the right thing for a young German to do would have been to follow the Nazi chain of command? Because it’s not like we’re fighting a Global War, or putting Muslims in concentration camps, or torturing our enemies.

    Oh, right.

  13. bmaz says:

    @PeasantParty: Well, I happen to think that Manning very much could have done it in a fashion analogous to the Davis path – and that laid out by the Whistleblower’s Act – and I find the excuses that he did not awfully hollow.

  14. PeasantParty says:

    @bmaz: I don’t wear rose colored lens, nor ignore facts. I understand Manning broke the law and has to accept the punishment. I am not saying that he did no wrong. I’ll make no excuses for him. Just simply pulling some of those facts. He could have made alternate choices, as you say, but he didn’t.

    That ship has already sank and all the sailors can see how it could have been prevented now that it sits on the ocean’s bottom.

  15. bmaz says:

    @emptywheel: Well, I think when you are in the military you owe additional duties to those of a civilian. I do not disagree that Manning did a service ultimately to the country. But, by the same token, he hatched up his desire to leak, and sucked and hoovered up the information to leak, over an extended period of time. Over which he at no point appears to have made any attempt to do things properly. He was more interested in being a little hacker boy than honoring his oath and service.

    And while even some of the State Dept cables have proven to have some evidence of criminal conduct, or that impinges on it, and as screwed up as our govt is and as much as it overclassifies information, I still do not think it can be sanctioned for any person in the military or government to simply take it upon themselves to blithely and indiscriminately – without even knowing what is in the information – to make giant dumps of classified information. I think that is a valid crime, is a legitimate concern for the government, and should be prosecuted and punished. Bradley Manning may be a hero in one sense and a criminal malfeasant in another. It is possible to be both, and he is.

    Daniel Ellsberg was ready and prepared to do his time for what he did, and but for a stroke of fate from his enemies in the govt, he would have done just that. For all I know, Bradley Manning may be equally willing to face his music. It is the pie eyed, rose colored glasses wearing cult that has formed around Manning and WikiLeaks that bothers me. Free Bradley Manning!! Yeah, grow up.

  16. What Constitution says:

    There has never been any real doubt about whether Manning actually violated a military proscription against the unauthorized release of non-public information. To that degree, I certainly can support your premise the Manning is, essentially, “not entitled to walk as a ‘whistleblower'” and I agree that those contending he should are missing a larger picture — there are, indeed, things that need to be secret and there are rules, especially in the military, to try to assure that secret things can stay that way until “properly” vetted before release. However, it just does not and cannot stop there — the Manning fiasco is not restricted the fact he released information, it is inextricably interwoven with the government’s dungeoning of the man. Holding him for months without charge, in isolation, enforced degradation, obviously more as a threat to others who might consider disclosing information than as part of a reasonably diligent investigation and prosecution, has been barbaric and unconscionable. In legal parlance, if he violated “the law” he’s entitled to due process and to get to the “penalty phase” — where I rather expect and hope that, based upon all the panoply of justifications/lax documentary security/absence of actual harm/public interest-‘whistleblower’ characteristics and the like, what we should end up with ought to be along the lines of Manning discharged from the Army based upon disclosure rules infractions but, otherwise, released on a “time served” basis. And it is, in my book, exactly this reality that Manning’s superiors recognize and have been ignoring in their zeal to “make an example” of him through brazenly medieval incarceration and refusal diligently to try him. I don’t think the two parts of the story — the “legality” of the disclosure” and the “punishment befitting the delict” can be disassociated in the Manning situation. He did, it would certainly appear, do “something against the rules and therefore wrong”, but he is entitled to fair review and, even if “guilty” of something, to an honest assessment and that any punishment must not be “cruel and unusual”, which includes consideration of numerous factors. Just as, for example, under the International Convention Against Torture, “following orders” is not an excuse or justification for torture but may, in fact, be considered in sentencing, certainly Bradley Manning is entitled to have “what he did wrong” weighed against what was done to him thereafter by his government versus what the actual “damage” from his disclosures actually turned out to be. He should not spend another moment behind bars and the sooner he can be released — even if found to have violated Army rules — the better. The conduct of our Army, the Administration and those charged with the treatment of all those serving our country demands no less than reaching a fair and humane resolution to “the Manning situation”, even if part of that includes a determination that he didn’t follow the rules properly in providing information to others. Such rules can be protected without dehumanizing the military workforce and sacrificing the Rule of Law to picque and vengeance.

  17. emptywheel says:

    @Bob Schacht: Narratives are, by themselves, problematic. While it makes it easier to identify where Davis sits institutionally (as if his list of officers who aren’t lying doesn’t do that already), it does make this about two different viewpoints.

    One of the interesting things about WL is the way the govt has tried to craft leaks into a narrative but the raw data was able to undermine their efforts.

  18. emptywheel says:

    @bmaz: Well, that’s wrong on at least one count. He did try to go to his commander about the abuse of US resources to persecute enemies by Maliki.

    And we simply disagree on whether it’s good and smart to release a lot of information that has no business being classified. You seem to forget that it’s not SECRET, it’s just withheld from certain people. And those people aren’t our enemies. They’re us.

    The stance on classified information you’re making might be right in a system where information was GENUINELY treated as classified, if the information was GENUINELY kept from our enemies. It’s not. So the whole argument breaks down.

  19. bmaz says:

    @PeasantParty: And that is all I am saying. There was a different and much better path, and Manning was obligated to at least try that before sinking to other means. But, as you say, it is now what it is. Both he, and we, have to operate from that truth. And, honestly, I have an inkling he is doing just that. I think he and Coombs have operated in a manner that looks to me to be very consistent with being grounded in reality and the possible, as opposed to the absurd that much of the hubbub on the outside carries on with.

    While I think we may look at things from different perspectives somewhat PP, I do not think we are that far from the same general page.

  20. emptywheel says:

    @What Constitution: Well, and that treatment of him makes him parallel again to Ellsberg.

    No one now objects to the fact that Ellsberg is running around free. But he’s only free–as bmaz admits–bc the govt ALSO violated rule of law in pursuing him.

    That’s one important value of the support for Manning. BC in this day and age, it’s a lot harder to punish the govt when it violates rule of law.

  21. bmaz says:

    @emptywheel: I do not disagree with your ideal, I disagree with the thought that a freaking random private in the military gets to decide what is and is not proper. I do not think having a chat with your immediate CO is exactly a good faith effort to attempt compliance with the Whistleblower’s Act, and that particular subject you cite has little, if anything, to do with the mass of information he dumped.

  22. bmaz says:

    @What Constitution: Now, see, I agree pretty much with all that. Although I fairly adamantly believe Manning and counsel Coombs, other than the initial conditions of confinement, which were unconscionable, have had no problem with the delay in prosecution and, frankly, probably are thankful for it. It has bought them time, let the waters calm substantially, let the White House and Administration emotions calm, and Manning was likely to be incarcerated anyway.

    But, other than that, you have captured almost entirely what I am saying. I do not think he will ever get time served; my best guess is 5-6 years with time served and heavy psychological counseling (which they do have at Leavenworth) would be the best scenario. More likely 7-10 years with time served would be a better bet. I would be more than content with simply time served as you suggest – so long as there was some serious component of counseling to help him sort out his issues. He does no one any good locked up any further than that, but hard to see there not being a much longer term added on as deterrence to others. And, yes, the initial unconscionable detention conditions are absolutely a proper mitigating factor for sentencing, both morally and legally.

  23. PeasantParty says:

    @bmaz: I can accept that. Yes, there are better paths and his judgement could have made all the difference. When Marcy was doing the timeline and giving us the chat logs I could see then that Lamo was in fact acting like the FBI has done with wannabe terrorist here in the US. They goad them on. Lamo asked him many times when he was going to do it and those conversations stuck with me. Not making an excuse for him, just commenting on it.

    While we are on this subject can you give me some guidance on this Executive Order?

    I understand how it should affect regular Fed employees. What I would like to know is how it should affect military personnel as they are also FEDERAL employees.

  24. earlofhuntingdon says:

    Part of this can be put down to the differences in background and rank between these two. As a middle grade officer, Davis had a status and education Manning lacks.

    That conjecture aside, the truth needed to be told in both instances. Manning, however, if he acted as the government alleges, chose an emotional, process-shortened way that may land him in jail for a much longer time. Sadly, it’s the price to be paid in conducting civil disobedience.

    The challenge for those not in Mr. Manning’s shoes is to take the ball he and Davis pass and to run with it, on the field, not in the stands or parking lot.

    Those opposed to Davis and Manning have an advantage: the ability to act falsely or beyond the law without consequence. But it’s not an advantage that can be overcome by having large numbers of people mimic Mr. Manning rather than Mr. Davis.

  25. Arbusto says:

    Guess I mirror what earlofhuntingdon said.

    What you say from a legal and UCMJ sense is correct of course. From a practical stance, the difference between a career officer, a low level enlisted man and the perfidy of too many of our sworn government, civilian and military is enormous. Where would you suggest someone in a similar situation as Manning would present their data dump or findings without incurring a similar wrath from on high? We know what the effect of Manning’s expose was. I expect Davies exposure of cover-ups and lies from those in command in Afghanistan will go nowhere because of the vested interests of TPTB, though time will tell. This Administration has a hard-on against transparency, contrary to their word. In a nation of dishonest politicians and self-serving military leaders, I’ll take a discontented self-righteous Private over any of them. The UCMJ deals in the rule of law while our Government doesn’t. Manning will most likely be found guilty and sentenced to die in prison an old man. Justice would mitigate that sentence (perhaps in part since Obama already declared him guilty), but there is only law in the UCMJ, no justice.

  26. Jan Rooth says:

    You appear to be confusing honor with adherence to the law. It seems to me, honor lies in the reason one does or does not obey the law, not in the obedience.

    What’s dishonorable is using the classification system to conceal wrongdoing. What’s dishonorable is letting wrongdoers go unpunished whilst punishing those who exposed them. What’s dishonorable is laying charges which are “more than a stretch” in one’s zeal to punish those who exposed government wrongdoing. What’s dishonorable is subjecting a prisoner to months of highly abusive treatment in an effort to get him to give you ammunition against a journalistic organization you wish to destroy.

  27. jo6pac says:

    So the Col. takes the heat and may be jail and the generals that lied to Congress under oath just keep on lieing. Yep,everything is normal.

  28. bmaz says:

    @Jan Rooth: I have no confusion on that; I think the military is a far different place than civilian life, and its command structure and existence depend on different and higher duties to it. And I agree with your point about the overclassification, but I do not think it the province of every rank private to be personal judge and jury on hundreds of thousands of classified documents all by himself. to a foreign entity. And I am stunned to think anybody truly believes that nonsense.

    @jo6pac: There is about zero chance Davis ever sees the outside of a jail, much less the inside. He so defensible, because of how he conducted himself, that there is a very good chance he is never charged. In fact, if the facts are truly as they appear, the government would have to be insane to charge him; first off he will win, and secondly the blowback would be spectacular and only reinforce his points and conclusions. They may hate it, but their best tact is to treat this as nothing, casually say it is just one man’s opinion and not true and walk away.

  29. emptywheel says:

    @bmaz: No. Talking to your CO does not grant you access to whistleblower protection, I agree. But it is false to say he did nothing, as you have done.

    As to whether his effort to stop using US resources to help Maliki crack down on opposition had anything to do with his leaks? Of course it does. Two of the key discoveries in the Iraq Logs were 1) that we knew about Iraqi torture of opposition figures and 2) that we were knowingly turning prisoners over to the unit that was doing the torture.

    There’s a clear line from one to the other. And now that we’re out, the govt is trying to pretend that Maliki’s abuse is new and previously unknown. Well, you know what? Those Iraq War Logs are going to come in might handy when the govt tries to reenter Iraq, ostensibly to crack down on abuse were were complicit in years ago, but in fact to crack down on Iranian influence.

    As to your assertion that you “disagree with the thought that a freaking random private in the military gets to decide what is and is not proper”? You prefer having people use it as information asymmetry directed not against our enemies but us? You’re happier with John Brennan deciding what (far more classified) information he leaks for political gain to shore up his own power? What makes John Brennan a better servant of the Constitution than Bradley Manning?

    Again, the problem with the way you’re thinking about this is the acceptance that there is, anymore, any “proper” aspect with the way our government is abusing its information asymmetry. There’s just nothing of the sort, so the difference between a Private proving that point with breadth where John Brennan does routinely with depth seems a nitpick to me. If national security information means anything, than John Brennan has done far more damage to our nation than Bradley Manning, just for political gain. He has equally violated his signed employment terms. Why not worry about that?

  30. Benjamin Franklin says:

    “A fine post bmaz! The only tiny quibble I would have would be the fact that the enlisted ranks, particularly those at the lowest rungs of the chain of command, in reality face a steeper whistleblowing hill than that of the officer ranks.”

    My son, A Marine, was having a hard time getting his leave dates so he could make plane reservations. I talked with a retired USMC Colonel (my son, Lcpl) and the Colonel said, ‘just tell him to go see his commanding officer’.. When I told my son the advice he laughed. “That’s not gonna happen. Officers have no concept” meaning the advising colonel had no clue.

    I think Manning sought no material gain; thereby giving him some cover. Timothy Boyce is an Outlier in the comparison, but he too was motivated by the shock and awe of the illegal and immoral behavior he witnessed in the course of performing his duties, as well. It is not an excuse, but it could be a diagnosis.

  31. bmaz says:

    @emptywheel: The same lack of results may apply to Davis’ information. In fact, it is a very good bet that is the case. But there WAS a path for Manning to try to do things legally, he just did not bother himself with that.

    And of course I do not prefer that Brennan have the selective power from on high, and I would be happy to see him prosecuted for it, of course that will never happen because he had authority to do so. But I do not think that because Brennan does so in a sanctioned way, granted in an infuriatingly craven manner, excuses someone like Manning from trying to accomplish the task in a more appropriate and protected manner, and one that is specifically provided for. In fact, that is the hallmark of a true whistleblower as the term exists under the law. That should be attempted before willy nilly dumping to a foreign entity.

    @Benjamin Franklin: But Manning DID have a trip home right at the time when he was making his decision.

  32. Benjamin Franklin says:

    Gawd! CHRISTOPHER Boyce……mea culpa.


    But Manning DID have a trip home right at the time when he was making his decision.

    Not sure what your meaning is….

  33. joanneleon says:

    Good contrasting analysis. LTC Davis definitely did this the way it was meant to be done.

    I don’t know if Manning would have ever been able to do this. Perhaps he could have done it with the video that he released. I don’t know if he could have gotten it to someone in Congress.

    There is still the issue of command influence given that the president declared Manning guilty on video tape.

  34. bmaz says:

    @Benjamin Franklin: It seemed you were making the point that someone else did that there was no opportunity for Manning to approach a Congressmember or the IG because he was stuck in Iraq. But that is not right, Manning had a leave back to the US right at the time he was deciding what to do and how to do it. Being stuck in Iraq is not a valid excuse. And, for that matter, if he could transfer all the material electronically to Wikileaks, then he sure could have found some way to do so to a Congress member and the IG.

  35. bmaz says:

    @Benjamin Franklin: Oh, I agree with that completely. And my guess is even a guy like Davis had that issue and that is why he released to Congress and IG and then notified command he had done so.

  36. Seedee Vee says:

    “he is no heroic military whistleblower”

    You disgust me, bmaz.

    Your personal quest here seems to try to nail Manning to a cross of your making.

    Bradley Manning is the perfect example of hero, military or not.

    Bradley Manning took an oath to uphold the Constitution of the United States, not to submit to the illegal acts of our political and military leadership.

    He has brought sunshine to the disgusting darkness that is our government and its leaders. Your personal infatuation with military protocal is entirely by the process of your infantile submission to authority.

    This piece today is entirely disgusting and I hope the people that value freedom over our corrupt and unfair “justice” system comment on your pathetic homage to authoritarianism.

  37. emptywheel says:

    @bmaz: You’re still missing my point entirely.

    Could Manning have whistleblown the specific instances of Mailiki’s abuse in proper fashion? Yes. Would it have done a damn bit of good? No.

    But that’s not what he did and you’re dodging. He exposed the larger system, the fact that there is no truly classified information, just information that is being withheld from some people for reasons that may, but probably don’t, have to do with national security. And that fact is why it wouldn’t have done a damn bit of good for Manning to expose the Maliki abuse and why it probably won’t do a damn bit of good for Davis to expose the Afghanistan lies.

    Because the way our government uses information is only barely about protecting the people who cooperate with us (ask the Pakistani doctor whose cooperation Panetta confirmed about that). It’s about the larger system of raw power that we hide behind sweet narratives of rule of law and influence. That’s what Manning was trying to expose. All the premises of your argument–starting with the one that we protect information because not doing so will hurt “our security”–are precisely the lies that Manning was trying to expose.

    Will he do time for it? Almost certainly. But does that make the effort “dishonorable”? Nope.

  38. Jan Rooth says:


    My quarrel is with your use of the word “honorable.” I don’t see any evidence that his intent was dishonorable, and much that you even concede in your post points to his intent in fact being honorable.

    And I stand by my (quite incomplete) list of things our government is doing in this context which I find dishonorable. Furthermore, I don’t think it’s a “quibble” to point out the gross distortion of justice and great dishonor in calling what he allegedly did “aiding the enemy.”

  39. Benjamin Franklin says:


    And my guess is even a guy like Davis had that issue and that is why he released to Congress and IG and then notified command he had done so.

    He was a Lt Col….

    Christopher Boyce was a civilian, and his meltdown/diversion to alternative channels arose from the same challenge both Davis and Manning grappled with; trust corrupt channels or not. As I’ve said; it’s not an excuse, but it could be a diagnosis

  40. Kathleen says:

    Mannings intentions were honorable. Clearly did not exhaust all other possibilities for getting information out that he thought Americans should be aware of.

    But what can you say about his age vs Davis’s age?

  41. Kathleen says:

    What’s The Truth About The War In Afghanistan?

    February 9, 2012

    Lt. Col. Daniel Davis ignited a controversy when he wrote that what he saw in Afghanistan “bore no resemblance to rosy official statements by U.S. military leaders.” U.S. Rep. Jim McGovern (D-Ma), defense analyst Tom Donnelly and McClatchy Newspapers correspondent Johnathan Landay discuss the realities of the war in Afghanistan.”

    This was an interesting interview

  42. Kathleen says:

    Bmaz “Manning, instead – irrespective of what you think of him personally – a criminal who dishonored his service.”

    When you join the service do you take an oath to uphold the constitution or to obey orders? Both
    “I, (NAME), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”

  43. bmaz says:

    @emptywheel: His act may have been honorable in intent, arguably even in resultant fact; however, his method of executing it was not.

    “Would it have done a damn bit of good”? I see no reason that by getting the information to selected Congressmembers that would act it and the IG, or at least trying more selective alternatives before contacting press, it could not have accomplished everything that what he did did. I do not think the argument that how Manning did this was the only way whatever good was accomplished occurred. And that is assuming for the sake of argument that Manning was as significant as you seem to be inferring.

    You cite a lot of complaints and wrongs, and they are valid. But that does not give every servicemember that is a little emotional carte blanche to make massive release dumps of things that are on their face classified, whether they should be classified or not. Imperfect and maddening as it all may be, this is a nation of law, and the military not only that, but one of far heightened discipline and protocol. If what Bradley Manning took it upon himself to do is just dandy, then there is no law, there is no military, there is no structure of government there is anarchy. Yes, I DO believe there is classified information, in different levels, and that such is a proper and necessary thing in many areas for a government. Is way too much classified that should not be? Yes. Do governmental officials of the Executive and Congressional branches wield that information too often, and cravenly, for their own self serving interests? Absolutely. Both true. And I will join the fight to change that; but I will not excuse the criminality of what Manning did just because I think it was fortuitous and enlightening.

    I do not miss your point at all; I just have caveats to how I agree with it.

  44. bmaz says:

    @Kathleen: And what, pray tell does that have to do with anything?? There is nothing in the Constitution that says he was authorized to do what he did. You can say it was a good thing and all that, but saying he had some Constitutional duty to do what he did is simply nuts.

    …and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.

    Well, he sure did not do that.

  45. Benjamin Franklin says:


    That’s fair. I just think you discount Manning’s state-of-mind. After all, there are degrees of crime, not to mention the issue of mental breakdown. You’re gonna have a chilling effect, on mentally stable leakers, by enforcing to the max, but you won’t stop the Mannings until a safe house that is iron-clad, exists.

  46. bmaz says:

    @Benjamin Franklin: I agree completely. Do not get me wrong, I am not in favor of any overly harsh punishment for Manning. I would like to see him given maybe a little more time, so as to allow for substantive counseling and then release and dishonorable discharge him. I do not think that, in reality, will happen without at least a few years more incarceration time though. But that is just an educated guess.

  47. emptywheel says:

    @bmaz: You’re saying what Manning should have done is go to Congress and say, “Our entire claim to be an exceptional nation is false, we are instead a big bully that uses all means of coercion to maintain power”?

    Given that Congress knows that–but we rarely get to glimpse that–it’s unclear what good that would have done.

    And sorry, in this venue, more than all others, we are decidedly NOT a nation of laws, by definition.

    Until Navy v. Egan is either properly interpreted or overturned, we can’t be. Because until that point, we are a nation of information tyranny, in which the executive branch has absolute control over information precisely using this system called–but not treated as–classification. And until that system changes, the executive branch is not only above the law (see torture, rendition, illegal wiretapping, etc), but also above any kind of oversight by its citizens.

    So to even discuss whether anyone would have carte blanche or not within that system when it is inherently a system outside of the law is nonsensical. Hell, a lot of the people who DO have the authority to do certain things with information STILL get persecuted under this system because it is a system outside of the law, one ruled first and foremost by the executive branch’s arbitrary whims.

    Yes, Manning probably violated the law as written. Yes, he also violated military codes of discipline. Neither of those things have anything to do with morality, of course, which is what we’re talking about.

    And so the question is which is more important: an informed citizenry–what Manning risked his freedom for, however imperfectly, or this arbitrary system named classification which is, in fact, the cornerstone of increasingly unlimited executive power? Are you really staking your system or morality on the latter?

  48. bmaz says:

    @emptywheel: Nope, but I do not believe that people who do what Manning did get to blithely do so. I believe there are some legitimate government secrets and that the Bradley Mannings of the world do not get to decide what is and what is not. I also do not believe the system is “a system inherently outside of the law”. Is it severely abused, yes. But it exists, as does the law, and the edicts and ideals of both need to be improved. But I find no legitimacy in just saying it does not exist in the law. It does, we just do not agree with how that is being effected.

    As to morals, there is more than one in play here I think. They did not have to be mutually exclusive, that was just how it went down.

    I agree completely about Egan, and also think that it has been extrapolated far beyond what it was ever intended to do, and should be pared way back, if not reversed and discarded. But then you knew that.

  49. emptywheel says:


    I do not believe that people who do what Manning did get to blithely do so

    You seem to mistaking free will for your own. Manning gets to do what he did. The way to prevent him is to actually protect the data. But otherwise–and this is a point made repeatedly in the wake of WikiLeaks–the entire system depends on the willingness of those participants in this lawless system to abide by the abitrary rules. The rules of clearance, the rules of politics, the rules of John Brennan. A whole shitload of people do not, in fact, but most of them refuse to abide by the rules in less brave ways than Manning. And, a whole lot of people refuse to abide by the rules in ways that selectively help our enemies, but because the system is so awfully insecure, we’re allowing those people to go scot free. The entire system endorses a kind of rule-breaking, and no one is trying to change that.

    As to Navy v. Egan, saying you’d like it to change is not the same as describing it as it has been interpreted in just about every circuit, and that is in such a way that quite literally puts the executive branch above the law because it provides a way to put every single one of its actions, if it so chooses, beyond the review of a judge (and, as it has happened, beyond the review of Congress). I don’t see how you can dispute that, since that is precisely how the government has evaded not just legal consequences but even informing its citizens about its illegal acts.

    So effectively, for any of the executive branch’s actions that it deems to be included under “national security,” it has the ability and has to set up a veil outside of any accountability.

    Manning revealed what was behind the veil–not the most damaging secrets (which he had access to). Just the really inconvenient but rather innocuous ones. And because of it a lot of AMericans learned a lot more about their government than they’ve learned in years (and journalists–and bloggers like me–are still relying on those details).

    You may be so offended by the disruption in the underlying arbitrary system of power that that’s not worthwhile to you. That’s your choice. But understand, your objection to it is a reinforcement of the very arbitrary way the executive branch uses this power, which is teh cornerstone of its corruption.

  50. Eric Jaffa says:

    Officials leak every day and aren’t prosecuted. Often to smear Iran or another designated enemy.

    Bradley Manning broke the law if he leaked thousands of documents to Wikileaks. So did those officials.

    Manning could be punished with dishonorable discharge. There is no need to prosecute him.

  51. bmaz says:

    @emptywheel: Like no one already knew that most of what was classified need not, and should not, be?? What Manning released was a nice illustration of the point, but hardly revelatory as to the existence of the problem.

    Yes, Egan should be rectified. That should be done by a court, not an emotionally troubled private. And, yes, I still believe in the value of the Constitutional system of government over that of vigilantism and anarchy. I am an old fogey that way.

  52. Bob Morris says:

    Manning also gets the Dimbulb Award for re-using his Macbook password for the encryption of the documents.

    Never ever re-use critical passwords… That one mistake may cost him years in prison.

    I think he was naive and had no clue what he was getting into or how hard they would come down on him if caught.

  53. tinao says:

    I just finished reading Lt Col. Davis’s report, and sincerely thank him for it. I hope the President and Congress take the time to read it for themselves. Thanks for posting it Bmaz. I think Manning and Davis both performed acts of conscience for the good of our country, but Davis had Manning’s treatment to guide his act.

  54. tinao says:

    I do have a question though. On page 77 and 78 are 7 questions Davis recommends Congress hold public hearings to get the answers to and they are missing. Anybody know whats up with that or what they were?

  55. Bob Schacht says:

    Fascinating debate between bmaz and EW. Thanks!

    Your debate illustrates this: Impartial and exacting enforcement of the law runs in favor of those who control the law– i.e., the establishment. In our system, the administration of justice is supposed to be blind, but guess what, folks? Obama’s DOJ is the poster child for Justice that is not only peeking, but has its thumb on the scales of justice. Admittedly, he is just continuing the George W. Bush tradition. I’m beginning to think that the AG of the US should be nationally elected. Since Congress has abdicated its role in checks and balances, hiding behind the AUMF, we are left with the Roberts Court– and Bradley Manning. I’m beginning to think that our 3-part government is beginning to look like the Cowardly Lion, the Tin Man, and the Scarecrow. With Bradley Manning as Dorothy, being the one to pull back the curtain? Both Bradley and Dorothy didn’t play by the rules.

    Bob in AZ

  56. tinao says:

    Ooops, should have put savages in quotes. What document was it that heavily borrowed from the Seven Nations?

  57. tinao says:

    And does anyone here know what the Iroquois Nation did before they went to war?… They held council with The Grandmothers.

  58. Jeff Kaye says:

    This is exactly right. No matter how much one admires Manning for what he did, the irreducible minimum is that there is a legitimate basis and need for military discipline and adherence to the code of conduct, and that was the system Bradley Manning swore to uphold, protect and live within….

    @emptywheel: Well, I think when you are in the military you owe additional duties to those of a civilian.

    All other things being equal, perhaps I could agree with you. But they aren’t equal.

    The US military and government has proven itself beyond self-correction and knows nothing of true accountability. Not one US official or officer has been brought up on charges for multiple (in the thousands) cases of torture or detainee murder or rendition. So much for adherence to a code of conduct. (And when it comes to civilian government conduct on such matters, I need only remind you of one name: David Margolis.)

    When the Senate Armed Services Committee, which conducted the most thorough examination of DoD crimes to date, released their report, they made no recommendations for any prosecutions. Even though the SASC interviewed top military commanders involved, like Generals Lyle Koenig (Special ops) and Thomas Moore (Joint Forces Command), who were indicated (anonymously) in the report to have approved torture, or failed to intervene when torture was reported to them, the SASC covered for their crimes, failed to mention their names. Levin’s office has admitted to me they interviewed, for instance, Koenig and Moore, but will not release transcripts of those interviews, as “classified.”

    Bradley Manning was a young kid amazed and sickened at the crimes he saw going on around him. In my mind, this is testimony of his general mental health, by the way, compared to a society that prefers to turn their collective heads away from these crimes.

    The way he went about releasing the information (if he in fact did do so) may not have been consistent with the military’s format of “whistleblowing”, but it was consistent with a morality that is far higher than that of the USMJ. As someone engaged in civil disobedience, he may pay for that, and pay dearly (more than he has thus far).

    But the US government is the entity that should be in the dock, not Bradley Manning. The crimes of the military far, far outweigh what Manning is accused of. The military’s crimes include torture, mass murder, breaking of treaties, unlawful murder, and the like.

    I’d note that Lt. Col. Davis, who has shown courage for revealing his superior officers as liars, never mentions even once, not even in passing, the use of torture by US forces in Afghanistan. Since he is drawing upon non-classified sources, there is no reason not to make such a point. Furthermore, it would be nonsensical to claim that the torture policies were not germane to US actions. It is the dog that never barked in his report.

    In Denmark right now, there is a huge controversy over the revelation that documents exposing that country’s activities in the Iraq War to be suddenly gone missing. The current head of NATO, Rasumussen, a former Danish PM, is implicated in the coverup of the turning over of prisoners to torture in Iraq (as I wrote about here). It would be far more helpful to spread and expose these truths about the war crimes of the US and its allies, than to spend one’s time explaining why you think Bradley Manning should suffer military justice from a Defense establishment that is itself criminal in its operations.

    The Danish revelations were themselves a revelation that began with leaks from the “flaky” Wikileaks site, and may have originated in Mannings’s release. The ad hominem against Wikileaks is, by the way, strangely thrown in here.

    While I have tried myself to interest the US media and blogging world in the crimes of Pentagon higher-ups (Koenig, Moore, and others), or those of top NATO officials (Rasmussen, Major General Poul Kiærskou), it is a shame to see such important stories bypassed for the chance to throw eggs at the hapless Manning, who didn’t do things the “right” way, so now must be thrown under the bus.

  59. bmaz says:

    So, I am curious, are you advocating that all crime should be excused military and civilian, or just that all military law and regulation is abolished and all servicemembers, down to the lowliest privates, are free to do as they will? Or does this morality exception you advocate only apply specifically to Bradley Manning?

    Are there any crimes against your government that are still valid, or are they all abrogated? Is there even a place for the military and national security function in the US, or must they now be disbanded? Since you advocate putting the entire government in the docks, what shall replace it? An OWS general assembly and “mic check”? Or is it just every man, woman and child for themselves?

  60. Jeff Kaye says:

    @Jeff Kaye: Let me add that while I respect Davis’ work, it is not above criticism and even cover-up of his own. I’ve already noted the silence on prisoner abuse above.

    In his report he lauds current Chairman of the Joint Chiefs of Staff, General Martin Dempsey, as “by all accounts… a man of strict adherence to honor and integrity.” (pg. 4) Here’s an alternate version of events by British journalist Gareth Porter, speaking of Dempsey’s POV re Iraq police terror groups (emphasis added):

    Gen. Martin Dempsey, who succeeded Petraeus as the commander responsible for training Iraqi security forces in September 2005, hinted strongly in an interview with Elizabeth Vargas of ABC News three months later that the U.S. command accepted the Wolf Brigade’s harsh interrogation methods as a necessary feature of using Iraqi counterinsurgency forces.

    Dempsey said, “We are fighting through a very harsh environment… these guys are not fighting on the streets of Bayonne, New Jersey.” Contrary to the Western notion of “innocent until proven guilty”, he said the view in Iraq was “close” to the “opposite”.

    Vargas reported, “For Dempsey, a big part of building a viable police force is learning to accept, if not embrace, the cultural differences.”

    What was Dempsey’s role in relation to FRAGO 242 and FRAGO 039? Oh, we wouldnt even know about those if it were up to Davis. That was Manning’s duty (or whoever released those Iraq War Logs).

    Even more, the former U.S. Real Estate Advisor to the Iraqi Ministry of Defense in Baghdad accused Dempsey of corruption, as this article by the official involved, Michael O’Brien, noted:

    MNSTC-I [Multi-National Security Transition Command-Iraq] was commanded by a US Army 3-star general named Martin Dempsey when I arrived there in July 2006….

    Within MNSTC-I there was a Construction Branch called J-7….

    While I was there, LTG Dempsey ordered J-7 to “cease work” on all Ministry of Interior projects because of the claims for land that had been illegally taken away from Iraqi owners. There were over 125,000 claims at one point while I was in Iraq, mostly due to the illegal taking of land by the Coalition. I found out that J-7 was taking privately owned land from Iraqis without compensation or securing clear title to the property. Yet, when I brought this to the attention of the Navy captain in charge of J-7, and later his successor, I was basically kicked out of his office. It stands to reason the cause of those 125,000 land claims was probably J-7….

    The US and the Coalition made absolutely no effort to collaborate with the Iraqis, whom we could have worked with while they learned to reconstruct their country, that we destroyed, on their own. MNSTC-I, under the command of LTG Dempsey, did nothing in this regard for the Ministries of Defense and Interior. It built facilities for the Iraqis using American firms, the facilities were poorly constructed, and the costs were through the roof. If there wasn’t corruption on the part of the US firms that did this work, I would be surprised. But I haven’t heard a thing about this in the media since my return three years ago. It isn’t just the US construction companies who need to be looked into, it’s the US military they did all the work for, especially LTG Dempsey and the two US Navy captains who ran J-7.

    But… but… according to Davis, Dempsey is “a man of strict adherence to honor and integrity.” (Davis reiterates his support for Dempsey towards the conclusion of the report, although he notes he never met Dempsey, and is relying on those who have.

  61. Jeff Kaye says:

    @bmaz: I noted that Manning will pay for his “civil disobedience.”

    I have no crystal ball and cannot say what will happen in the future.

    You ask if I think “Are there any crimes against your government that are still valid, or are they all abrogated? Is there even a place for the military and national security function in the US, or must they now be disbanded?”

    In fact, I do believe the CIA should be disbanded, for one. Secondly, the question of whether crimes against the government are abrogated because of the crimes they have conducted, I am no adherent of anarchy. I simply believe that the heavier crimes should be what we as a society should be interested in pursuing.

    Let me answer your question with a question:

    Do you think it is more important to discuss what Bradley Manning did wrong than it is to discuss what leading military and political leaders did wrong in gaming the war in Iraq, in planning and implementing mass torture and rendition?

    If I were to use the same reductio ad absurdum argument you are using, I’d have to ask if you think we should ignore the larger question of responsibility for the war, for the torture, for the interventions against other countries, to make sure that first the principle of military discipline be enforced against a lowly military intelligence analyst?

  62. Frank33 says:

    So, I am curious, are you advocating that all crime should be excused military and civilian

    As some of us have been screaming, it is the Secret Government that is above the law. The crimes of Cheney, and down the food chain need to at least be exposed. Plus Obama has assumed all powers of the worst Dictator.

    But we can’t handle the truth because it is CLASSIFIED. It would threaten lives to reveal the truth. That is, an unaccountable SECRET CABAL OF WAR PROFITEERS is leading us from one disaster to the next. We taxpayers must support phony wars and the Police State and the next war. I say, resist.

  63. bmaz says:

    @Jeff Kaye: No, I do not think, nor have I ever said, that prosecuting Manning is more important than question of responsibility for the war, for the torture, for the interventions against other countries. I do not find them equivalent; one does not excuse the other in either direction. Manning’s disobedience was not just civil, however, it was martial as well.

    Yes, I did engage in some ab reductio ab absurdum. But I have a hard time understanding where people who advocate to Free Bradley Manning!! think the dividing line is.

  64. Jeff Kaye says:

    @bmaz: It is as with the OWS situation, so I’m not surprised you note the similarity in comments. Whether it’s “Free Bradley Manning” or “Occupy Wall Street,” one recognizes the participation of outraged innocents and demagogues, if not occasionally the deluded. But the thrust of each movement is in the right direction, orienting the political agenda specifically against those who are actually criminals in a world historical sense. Manning, for instance, will not be considered as such by historians (and I believe I can speculate thus, having a university degree in history, and having some idea what historians tend to write about). Manning will be someone who (if found guilty) broke the law, but his social and historical significance will be in bringing forth vital information about the working of government, precisely at a time, by the way, when the current Democratic administration is working mightily to shut down access to knowledge about state activities.

    An example of the latter is displayed in Adam Liptak’s article in the New York Times today, “A High-Tech War on Leaks”. As you read the following, keep in mind both the Davis and Manning cases:

    It used to be that journalists had a sporting chance of protecting their sources. The best and sometimes only way to identify a leaker was to pressure the reporter or news organization that received the leak, but even subpoenas tended to be resisted. Today, advances in surveillance technology allow the government to keep a perpetual eye on those with security clearances, and give prosecutors the ability to punish officials for disclosing secrets without provoking a clash with the press.

    The changes have unsettled a decades-long accommodation between national security and press freedom, one in which the government did what it could to protect its secrets but exercised discretion in resorting to subpoenas and criminal charges when it failed. Even the administration of George W. Bush, no friend of leaks, more or less stuck to this script.

    “The government does not pursue every leak,” said Mark Corallo, who served as the Justice Department’s spokesman in Mr. Bush’s administration. “On balance, it is more important that the media have the ability to report. It’s important to our democracy.”

    That does not seem to be the view of the Obama administration, which has brought more prosecutions against current or former government officials for providing classified information to the media than every previous administration combined.

  65. Jeff Kaye says:

    @bmaz: By the way, do you also support the Kiriakou indictment, as it appears he may also have breached organizational discipline among the national security crowd?

    Here’s what Ellsberg is quoted as saying about Kiriakou in the same NYT article I quoted above. It’s similar to what I was trying (perhaps without effect) to say about the Manning situation.

    “The Kiriakou indictment for leaking” the identities of C.I.A. officers involved in a program that many people called torture, he said, “is particularly disgusting in the context of zero indictments for actually torturing, or for directing torture, or for writing spurious legal justifications for it.”

  66. bmaz says:

    @Jeff Kaye: I do not have enough of a grip on Kiriakou to decide yet. I am surprised they charged him, and I think he likely has a decent factual defense to most, but maybe not all the charges. In addition to a likely effective graymail defense.

  67. orionATL says:

    bmaz –

    it’s quite clear that, in the last couple of months, you have become pleased with the notoriety you get from writing what liberals/progressives would view as perverse commentary.

    this post, in that tradition, is, or should be, an embarrassment of major proportion to you.

    1. what is honorable, bmaz, is not necessarily what a defense lawyer like yourself would consider helpful to a defendant’s defense.

    2. manning was, say, 22, with no prior experience in the military.

    davis is, say, 50, with a lifetime of experience in the military.

    3. davis was clever enough to, say, consult with his pastor before beginning his journey.

    manning was not being clever; was not acting on experience (or advise of covert counsel, as davis almost certainly was). he was acting impulsively and instinctively (like athletes do, bmaz). he was, as he said, making info available to american citizens that was theirs to know.

    4. it is your misuse of the term “honorable”, bmaz, that makes this one of the most intellectually confused and contemptible columns you have ever written.

    “honorable” does not mean, as you implicitly take it to mean, “readily defensible by a criminal lawyer”.

    that you would use such a shallow definition shows just how hollow and divorced from justice, your view of the law is – the same shallow view of “justice” that our supreme court judges have taken to taking.

    what manning did was, indeed, honorable.

    his reasons for doing so were clearly articulated in his conversation with the fbi snitch.

    5. davis’ actions are no less honorable than manning’s.

    furthermore, they may well have much greater immediate impact on american policy in afghanistan. but prez obama already understands what davis is saying. the state dept and the dod understand and accept what davis is saying. that is why obama told gen petraeus, “the withdrawal starts in august, not november”.

    this is an unwinnable war in a backward nation which has to evolve democracy in its own way and in its own time.

    6. you need to stop playing games with perversity, bmaz. it may have made you “famous”, but it has also caused you to write an intellectually confused, moral mishmash of a column.

    you can do much better, bmaz. i’ve seen it- multiple times.

  68. Tom Baxter says:

    Bradley took an oath, the same oath I and Hugh Thompson did. An oath to “support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; …. So help me God,” under the Uniform Code of Military Justice. This oath included not committing war crimes, preventing and reporting them. After Bradley reported war crimes he was rebuffed by his chain of command, as Hugh Thompson was. Given Bradley’s circumstances, he exposed what he could by unconventional methods.
    Bradley honored his oath by refusing to participate in war crimes and to expose them.
    If we didn’t commit war crimes, we wouldn’t have be having this conversation. Thompson stopped war crimes and tried to report them, he waited 30 years to the day to receive his Soldiers Medal. Let’s hope Bradley gets his earlier. I don’t deserve one, I kept my mouth shut. Note, no one has been charged for murdering the men and wounding the children that stopped to help the wounded in Collateral Murder.

  69. orionATL says:


    jesus, bmaz:

    “… are you advocating that all crime should be excused military and civilian, or just that all military law and regulation is abolished and all servicemembers, down to the lowliest privates, are free to do as they will? Or does this morality exception you advocate only apply specifically to Bradley Manning?…’

    our society ALWAYS exceptions to the law, bmaz.

    that is what cops, or soldiers, or concealed weapons carriers, get when they murder people and claim self-defense.

    that is what drug dealers and arms merchants get when they work with the cia.

    that is what presidents get when they break u.s. law and international law on torture.

    that is what sly lawyers get when, for example, they accept payment in gold bars.

    that is what well-connected politicians get when they jay-walk, speed, or steal money from their campaign contributors.

    so, bmaz, for whom does the law not allow exceptions?

    you would imprison a young man because he was:

    – not powerful enough, or

    – not experienced enough, or

    – not wealthy enough,

    to evade the laws dragnet full of holes.

  70. bmaz says:

    @Tom Baxter: Really? Because there were hundreds of thousands of classified items Manning released that had nothing whatsoever to do with war crimes. Those just hunky dory with you too?

    Oh, and can you please point out to me what section of the Constitution directly compels Manning’s actions? Now, I can at least fathom somebody trying to fashion a moral justification argument, as Marcy has done pretty effectively, but trying to say this is “defending the Constitution” is claptrap.

  71. Jeff Kaye says:

    @Tom Baxter: For readers who don’t know, Hugh Thompson was the helicopter pilot who confronted Lt. Calley and stopped the My Lai massacre, threatening to gun down US troops if he had to to stop the slaughter. https://en.wikipedia.org/wiki/Hugh_Thompson,_Jr.

    And, bmaz, the State Department release was worth it solely, if nothing else, to have discovered the coordination between US and coalition forces in hiding torture in Iraq. Or the US acting to spike torture investigations among allies, against the laws accepted by treaty by vote of the US Congress. Those crimes truly swamp whatever articles of the law Manning violated. When those people are held accountable for what they have done, are even investigated, then I will warrant one could talk about accountability when it comes to the actions Manning was purported to do. But not before then. Not before then, by god.

  72. Bill Michtom says:

    “I do not think it the province of every rank private to be personal judge and jury …”

    While not a direct analogy, what Manning did follows fairly closely with the requirements of Nuremberg Principle IV: “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him.”

    Manning knew that war crimes were committed and, consequently has an obligation to report them–in his case, he chose to inform the world rather than continue up the uncooperative chain of command.

    The idea that the criminals in charge get to choose the method of reporting on their criminality is less than persuasive. It reminds me of asking Awlaki to turn himself in for his non-existent “terrorism” charges.


  73. bmaz says:

    @Bill Michtom: To any extent the Nuremberg Principles possibly apply, whether directly or through merger into other forms such as Geneva Protocols, CAT, International Humanitarian and/or International Human Rights Law, they would only applay as to items specifically evidencing war crimes. That is a damn small percentage of what Manning released.

    @Jeff Kaye: So, Jeff, a couple of cables make them all fair game? Is there anything that would not be appropriate to be released because someone was tortured somewhere sometime?

  74. orionATL says:

    bmaz writes:

    “… [manning] appears to quite clearly have committed clear offenses as to data transfer and information protection, not to mention conduct unbecoming, all in direct contravention of the UCMJ. You can quibble about whether Manning’s conduct constitutes “aiding the enemy”, and while that may seem to be an extreme reach to many, the technical elements can be argued by the government and sent to a jury. The remainder of the charges, however, appear clear cut if the government’s evidence is what it appears to be and is properly adduced at trial…”

    o.k., bmaz.

    what of american commanders who have ordered civilians targeted with the hope of killing an individual(s)?

    what of american commanders who have covered-up their own or subordinates violations of the rules of war (regarding civilians) or american military rules?

    what of the crew of the apache helicopter that murdered civilians newsmen and then murdered civilians coming to their aid?

    dd they not “quite clearly commit clear offenses”?

    and those soldiers and commanders in iraq who turned prisoners over to a torture unit of iraquis?

    not to mention torturing themselves, e,g., the general who gave himself up and was smothered to death in a sleeping bag during an american interrogation?

    and those commanders at abu ghraib?

    and those commanders who odered the shelling, with “willie-peter” of falujah, iraq knowing civilians wee trapped in that city?

    apparently, bmaz, your standards of responsibility apply only to those poor soldiers suckers who had no one above them to blackmail.


    and this time, bmaz, “i’m just being a practical defense attorney” won’t cut it.

    your argument has two centers of miscreants:

    1. those with power and/or leverage against others

    2. those, like manning, who are individual isolates with no such power behind them and no leverage.

    you’re practicing supreme court justice, bmaz – blind justice, indeed.

  75. orionATL says:

    i see you are uncomfortable responding, bmaz.

    you should be.

    it is hard to imagine what arguments you could muster.

  76. Bob Schacht says:

    bmaz and Jeff Kaye,
    Thanks for your informative exchange.
    Our founding fathers could not have anticipated all the kinds of issues that are in play today, although they foresaw a good many of them. And others that they may have foreseen, but could not agree about a remedy.
    The problem is that the military has notoriously proven unable to police itself. In addition, the DOJ is well on the way to proving that it cannot police itself or the Executive Branch. The military courts MUST have an appeal process that leads to the Supreme Court. And the Supreme Court MUST be able to review ALL security information: there must be no secrets from the Supremes. And failure to disclose requested info should carry significant penalties, although there would have to be something equivalent to pleading the Fifth.

    But mostly what we need is for each branch of our government to do its job. And Congress has not been carrying its part of the load. As Ben Franklin indicated, we have a Republic– if we can keep it. And we’re losing our grip.

    I think that Manning should receive a fair and full trial on any charges for which he may be charged. I’d also like to see Blankfein and other banksters also charged and tried for their crimes, too. But justice in the past decade has been neither blind nor swift. The 1% flaunt their excesses, while the Bradley Mannings and other 99% are defrauded, arrested, abused for prolonged periods utilizing every jot and tittle of the law. Whatever happened to swift and impartial justice?

    Bob in AZ

  77. bmaz says:

    @orionATL: There is simply nothing to respond to. The proposition that one crime excuses or renders null another legally is absurd. Just because Manning did something useful does not make it legal. Yes, I agree, all those things you reel off are likely crimes and or war crimes that should be properly investigated and/or prosecuted. That is, at best, a justification for a few items Manning released. At best. And even given that, there are other issues.

    You think he is a hero; that therefore implies you accept he committed the acts as charged. If he did not do any of those acts, he is innocent and wrongfully charged, but not a hero whatsoever. But you do not believe that, you think he did it, or you would not be having this reaction. Well, if he did it, he is guilty. Whatever other characteristics you wish to affix to his acts, the irreducible minimum is still he is guilty and there is a price to pay for that. And, no, I have no problem whatsoever saying that.

  78. Bill Michtom says:

    @bmaz you continue to desperately hang on to the “rule of law” for a lawless government. I chose the Nuremberg Principles both for the war crimes and the question of whether “a moral choice was in fact possible.”

    When a person has no effective system of laws–and Manning did not, nor does Occupy or most of the holders of fraudulent mortgages, etc.–moral choice is the only choice.

    Time to pull that steel rod out of your ass and consider how corrupt this country has become and, consequently, what our choices really are.

  79. Petrocelli says:

    Last week, when we learned of Mary’s passing, I remembered many heated discussions like this thread, which Mary was involved in and wished we could see more open, insightful displays of opposing views.

    Thanks Marcy, thank you bmaz, for doing this. I wish that every Law student and Civics student could read this Thread.

  80. Petrocelli says:

    @Bill Michtom:

    Okay there, do not insult this wise man, who has shared much knowledge & wisdom with us over the years and is greatly respected by many.

    You may not agree with him but do not question his sincerity, got it ?

  81. emptywheel says:

    @bmaz: Wait. You’re retreating to issues of legality again.

    Is there no place for civil disobedience?

    Cause if there is, it doesn’t matter whether Manning broke the law. It matters whether why he did it was right, whether he did it in good faith that it would achieve some objective.

    You may not agree with the latter. But this discussion has only barely been about where you want to retreat to now, whether this was legal or not.

    Human beings, at least in most societies, have laws. But that’s only a constraint on whether their actions have societal consequences, not whether they have value or not.

  82. bmaz says:

    @Bob Schacht: The UCMJ DOES have a path to the Supreme Court. The Supreme Court CAN make a ruling and attendant orders that result in it seeing anything it so orders, security or otherwise.

    As far as I know, all delay in the Manning prosecution has either been for good cause or with a waiver of objection by the defense. There are insufficient public pleadings and orders for me to be certain of that, but that is my understanding. There may have been one period where there was an issue, but I think that was fairly short, if it existed at all.

  83. Bill Michtom says:

    @Petrocelli I am not questioning bmaz’s sincerity at all. It is his apparent sincerity that disturbs me.

    Plus, this is respect?
    “a fly by night foreign internet site”
    “does this morality exception you advocate only apply specifically to Bradley Manning?”
    “He was more interested in being a little hacker boy than honoring his oath and service.”

    Let’s not let our admiration for bmaz get in the way of legitimate criticism, and I think my criticism is more legitimate than the examples I quote above.

  84. bmaz says:

    @emptywheel: Is that where I want the discussion to be taken, or where you do? And I think I have been quite clear that I do not think the vast majority of what Manning released has a righteous justification; the number of items to which that could apply is quite small. As to the rest, I simply do not subscribe to the proposition that because there is overclassification and selective leaking by authorities that that justifies his conduct. You may; I do not.

    I do not necessarily think what Manning did qualifies legally as civil disobedience, as I think that contemplates open and notorious conduct with the expectation of punishment. That does not seem to apply to Mr. Manning. I think you would have to argue more traditional justification, including whistleblower, but they do not really apply either. Morality does not equate to legality. I do not believe I have retreated or advanced on that, we continue to disagree in some aspects.

  85. orionATL says:


    your response, like your argument, is young lawyer, moot court

    i asked questions that deserve an answer from you.

    that you profess to find nothing to say is lawyerly debate trickerly.

    it is a fine example of behavior that illustrates why we despise lawyers.

    you know damn good and well that the is the central issue of:

    the dragnet full of holes –

    -who gets charged and who does not?

    cheney and bush for torture, illegal in this country and internationally, or
    manning who, as an act of anger and conscience, released every document he could load on a cd relsted to the iraq occupation of which he was a participating member.

    it’s fine with me if you want to teach us naifs how the criminal law grinds people up, which i believe is your purpose, but declaring davis is “honerable” (which he is) while manning was not,

    simply because davis was more legally careful to cover his ass before acting publicly is nonesense.

  86. Jeff Kaye says:

    @bmaz: “Is there anything that would not be appropriate to be released because someone was tortured somewhere sometime?”

    Well, that would get us into an area of ethics regarding means and ends that I believe would be folly to enter in this arena. Suffice it to say that we are not talking about someone tortured somewhere, but hundreds, or more likely thousands, of tortured individuals. The US may not have turned over thousands (we don’t really know the number– we know now that the Danes turned over 500 via US Special Forces, and the UK some unspecified amount to US forces, who then transferred to Iraq, if they didn’t torture the prisoners themselves), but they certainly legitimated the torturers’ agencies by collaborating with them.

    Maybe I’ll say this, so long as the military believes that it may be unfortunate, but there will always be “collateral damage”, i.e., the murder of innocents, in war, then those who oppose war could clearly state they stand on the same moral ground — at the very least — as those who engage in war. Particularly illegal war.

    Frankly, since the entire Iraq War was one large war crime, one could make a case that what any soldier did to expose such actions by his government was covered by Nuremberg. (It was Judge Jackson, I believe, who made prosecution of aggressive war to be the war crime of all war crimes, and was the basis for the famous first Nuremberg trial itself.)

    Now, I’m not advocating any soldier do any particular thing. And as a matter of safety one should follow rules and chain of command. Anything beyond that is a matter of conscience, and anyone in this day and age who were to reveal any war crime should know that the power involved may find that action criminal, and bring the “majesty” of the legal system to bear against such a person.

  87. joanneleon says:

    @Jeff Kaye: Davis submitted two versions of his report — one of them the classified version. It is possible that there is information about torture in that report.

  88. joanneleon says:

    @bmaz: Wait, seriously?

    As far as I know, all delay in the Manning prosecution has either been for good cause or with a waiver of objection by the defense.

    On a second reading of this piece, I find it more and more offensive. The comment responses make it even worse, bmaz.

    The first time I read it I saw it as an interesting, contrasting analysis. But the descriptions of Manning, the wording and characterization is pretty contemptible and assumptions are made that really should not be made about his motives and morality.

  89. Jeff Kaye says:

    @joanneleon: I suppose it is possible, but since Davis made a big deal about relying on open source material to document the same matters he deals with in the classified version of the report, there being ample open source material on US torture or prisoner abuse (or turning prisoners over to the Afghans to be tortured) that it strains credulity that Davis put some of this into the classified report but kept it from the unclassified version.

    If he did so, I’d be quite surprised. In either case, however, by hiding the matter from public view, particularly given the publicity he knew he would get (including an interview with the New York Times), he did a disservice by eliding this important aspect of the war from his dissenting account. Evidently, for Davis (and this I can’t say I actually believe, but what am I to believe given his actions?), if top military officials had been straight with the Congress and the public on purely military matters concerning the actual course of the war, there would still not have been any reason to see the torture as problematic, and involving lies by higher ups. That would have been acceptable, or at least not warranting a report by Davis.

    I wish some reporter would ask Davis about the Afghan torture, Bagram, etc., but in our current pathetic state of journalistic practice, I doubt I’ll see that. Someone prove me wrong!

  90. Jeff Kaye says:

    @orionATL: Hey, no big mystery. I was a history undergraduate at Cal, where I took Russian history from the late and great Reginald Zelnik. The attempted assassination of Trepov, and the acquittal of his admitted would-be assassin (there were plenty of witnesses, too), was an impressive display of the forces gathering in Russian society itself that would later bring down the Romanovs.

    The “liberal democrats” who followed them, btw, were easily disposed of by the Bolsheviks because they were despised, mainly for following the Tsarist policy of prosecuting the slaughter of WWI, thereby proving to the Russian masses at the time that the liberal democrats were in fact, as Lenin told them, tools of the capitalist class, who wanted the war for predatory purposes. Lenin was not wrong in this, even if he was wrong about other matters.

    One could say that when any ruling class cannot hide its predatory nature from the wide mass of its population, its legitimacy is threatened. I think we may be seeing this in Greece right now.

    I heartily encourage all readers to study modern Russian history. The truth about the development and later devolution of Communism alone in that country (and actually, in Europe in general after 1900) would be a wonderful antidote to the 99% ignorant statements I read about the period in the press and blogosphere.

  91. orionATL says:

    while we debate here bmaz’s argument as to why (not whether) our military justice system will grind bradley manning into dust,

    there is this little morality play regarding the ( presumably) larger issue of “justice”:


    i’m sure the mitred five justices in the u.s. supreme court would not find this issue a proper legal problem – one way
    or the other.

  92. bmaz says:

    @joanneleon: Yes, I am quite serious about that. Courts can exclude time from speedy trial calculations for just cause, and defendants can waive speedy trial calculation time. Further, certain processes are deemed to be excludable delay, and in this case that is exactly what happened. There was one brief period where I believe Coombs interjected a motion to dismiss on pre-trial delay to force the hand on changing the detention conventions, but I believe that was withdrawn when they were changed. So, yes, it is my understanding that time has been so excluded to where there is no cognizable speedy trial issue. Here is an explanation by none other than David Coombs, Manning’s attorney, himself. It is my belief through several of the applicable bases, time has been legally excluded to date in Manning’s case, and he has not filed any proper objection, save for the one that was intentionally withdrawn.

    I would be a LOT more sympathetic to claims about his overarching “motives and morality” if he was not so indiscriminate about his mass leaking and if he made anything but the slightest and most nominal attempt imaginable to remedy through provided for legal channels prior to dumping to a foreign entity. Quite frankly, I find the suggestion that someone is suddenly innocent, or not punishable, for multiple and direct crimes simply because we may be thankful for what they did, to be a fairly bizarre concept. That is simply not how the law works, whether people like to hear it or not. Sorry.

  93. bmaz says:

    @orionATL: Absent some evidence this was directly an American issue, there is not an event described in Siun’s post that would confer any jurisdiction on any American court, much less the Supreme Court. American hypocrisy in PR statements about foreign actor and locus conduct is not a justiciable controversy.

  94. orionATL says:

    @Jeff Kaye:

    thanks, jeff.

    i asked because i too had studied a little of this history.

    it’s not too often one runs across your level of detailed knowledge in weblog conversations.

  95. orionATL says:


    bmaz for the supreme court!!

    the law will be upheld,

    the guilty will be found out and prosecuted.

    “and justice and mercy will follow thee all the days of thy life”.

  96. bmaz says:

    @orionATL: Oh, were I the judge and/or jury for Manning, I would have a lot of mercy and sympathy. Not enough to ponder for even a second that he is not guilty, but I would order him released as soon as appropriate mental health professionals had evaluated, counseled and found him appropriate for public release. I would also dishonorably discharge him from the Army as of the second he was released, assuming it was not necessary to have him still in to receive treatment. I do not think, by any stretch of the imagination, that such is what will occur though.

  97. Jeff Kaye says:

    FWIW, on Christopher Boyce, his case is quite apt as an analogy. A young man disgusted by what he saw (evidence of how the CIA brought down an elected prime minister in Australia for political purposes), decided he would go public with secrets. He chose to give those secrets to the enemy of the U.S.

    In his 60 Minutes interview there was this:

    CHRISTOPHER BOYCE: Well, I have no problems with the label traitor, if you qualify what it’s to, and I think that eventually the United States Government is going to involve the world in the next world war. And being a traitor to that, I have absolutely no problems with that whatsoever.

    RAY MARTIN: Had you ever been one of those “my country right or wrong” kids?

    CHRISTOPHER BOYCE: Absolutely. I was brought up in a very conservative home, to the right of Kublai Khan. As I got older, I came to see that most everything that I believed in was hypocrisy in this country. Things just aren’t as they appear.

    RAY MARTIN: Was there any other way to do it?

    CHRISTOPHER BOYCE: I suppose there was, but I was 21 and saw things black and white. And it seemed to me my Government had betrayed me long before I ever betrayed them.


  98. bmaz says:

    Boyce did not give the highly classified information to the enemy, he freaking sold it to the KGB. And while he was in prison, he escaped and committed 17 bank robberies. Not sure how helpful it is to Manning to say he is analogous to a fucking traitor like Boyce. What a scumbag prick, he is lucky he was not executed.

  99. pdaly says:

    bmaz wrote,

    “Daniel Ellsberg was ready and prepared to do his time for what he did, and but for a stroke of fate from his enemies in the govt, he would have done just that.”

    That is not quite true.
    Ellsberg was willing to go to jail when he leaked thousands of pages of TOP SECRET files. However, while Ellsberg believed leaking the Pentagon Papers was against the law punishable by jail time, his defense lawyers felt Ellsberg had not broken any laws in leaking the Pentagon Papers.
    Also, at least one of Ellsberg’s lawyers estimated a 50-50 chance of going scot free, before the government illegality had even surfaced.

    I think the timeline was Ellsberg was charged for leaking the Pentagon Papers, and then Nixon and WH henchmen started their shenanigans (breaking into Ellsberg’s psychiatrist’s office, planning a physical assault on Ellsberg when Ellsberg was attend a rally on the National Mall, etc.)

    If that is correct, having Ellsberg tied up in a lawsuit was not sufficient and Nixon wanted something more.
    Ellsberg speculates that Nixon (and perhaps Kissinger) were secretly afraid of ‘what else’ Ellsberg might have to leak, since the majority of the Pentagon Papers printed by that time reflected poorly on prior administrations but not so directly on Nixon.

    Ellsberg initially tried, as bmaz suggests, to go through official channels but to no avail.
    One unanticipated benefit to going that route, however, was Nixon and Kissenger learned of Ellsberg’s meetings with individual Congressmen. This likely created worry and paranoia in the minds of Nixon (and/or Kissenger?) guessing what incriminating papers Ellsberg may have given Congress during those visits. If Ellsberg’s hunch is correct, it is ironic that “secrets” (or Nixon’s fear of unknown “knowns”) tripped up Nixon and helped to free Ellsberg.

    I wonder if Manning’s mistreatment at Quantico at the hands of our government was based on a similar fear of unknown knowns–‘what else did he give wikileaks that will make us look bad?’ and not merely an exercise of power to shut down future leakers.

  100. alinaustex says:

    Private Manning is a hero . The Iraqi War was an illegal occupation & a War of Aggression . Cheney and Bush should be at the Hague right now facing charges – its that simple .

  101. Bill Michtom says:

    I also disagree with the premise that civil disobedience or, to include bmaz’s more narrowly drawn criteria, any law breaking that disrupts a lawless government, requires the person to go to jail.

    Laws are no longer for all, not even remotely, as EW’s Appelbaum/Gross article ( http://www.emptywheel.net/2012/02/12/alan-gross-and-jacob-appelbaum/) makes entirely clear. People like Manning should not only try not to serve time, they should be encouraged to use whatever methods they have available to them to avoid paying a price for their acts.

  102. shekissesfrogs says:

    Arron Brady is full of it. I thought he was intelligent.

    I don’t say any of this to justify what is being done to Bradley Manning, of course; I’m as appalled as anyone. But let’s look clearly at why it’s being done: the terms through which the military operates – where winning the war means giving up “normal” rights and concerns – make what is happening to him the very opposite of a scandal.

    May as well say “I don’t say this because I am a racist, many of my friends are black. … but that ni**er deserves a beating.”

    Comparing Manning and Davis and the type of information they released are like comparing apples and oranges.
    It doesn’t work to expect Manning to be able to know how to traverse the complexities of getting this information out, and if he’d gone to congress -If he could get a hearing, it wouldn’t have stopped the arrest and torture of people asking about where the Iraqi money went. See FDA story It had to be released to the public to create pressure.
    There was no way Manning could separate the classified information from open source information because there was none, nor could he release the collateral murder video in that manner. What Davis did was reuse public information to retell and correct a narrative. Could Bradley have gone out and collected his own evidence? Was that part of his job? It seems travelling and collecting data and reports was part of Davis’ job.

    Manning is a hero because he was willing to sacrifice himself to release this information, and he knew he’d pay for it, he said so. That’s hardly petulant or any the other adjectives you assigned to him. He was sick about what he had seen, and was weighted down by it. What did Davis sacrifice?

  103. Jan Rooth says:


    “So, I am curious, are you advocating that all crime should be excused military and civilian …”

    I think we should either enforce the law for everyone or for no one. If we did the former in our society, then there would be no need for crimes like Manning’s and no injustice in prosecuting them.

  104. bmaz says:

    @shekissesfrogs: Golly, you are right. What was I thinking. Of course Bradley Manning’s ONLY OPTION was to indiscriminately dump his mass of classified information to a flake like Assange and a foreign internet site. And, of course, the ONLY PERSON he could possibly discuss it all with was a fucking drug addled, mentally unstable, felon punk hacker. It is simply the only thing he could have possibly done. Boy did I have it all wrong.

  105. Benjamin Franklin says:


    What a scumbag prick, he is lucky he was not executed.

    My original point on Boyce and the comparison to Manning, was that Boyce had a similar meltdown, and no iron-clad safe house through which to responsibly disseminate the data. Their state-of-mind needs to be addressed, just as anyone who commits a crime while under psychological duress or break-down.

  106. PeasantParty says:

    @tinao: No one has answered mine either!

    I don’t know the answer to the seven questions that were asked. I do know that the Longhouse and Seven Fires/Tribes were the precursor to the United Nations. Could you enlighten me as to how you are connecting this to the honor or dishonor of what these two men have done. Not being sarcastic here, seriously. I am asking earnestly.

  107. shekissesfrogs says:

    @bmaz wow. I could have said what a authoritarian jerk you’ve appeared to become, but how about this? Maybe you should go get an MRI and see if you have a brain tumor.

  108. bmaz says:

    @shekissesfrogs: I am not particularly an authoritarian at all, I simply respect the rule of law and the Constitutional system of governance it is based on. If you do not, that is your decision. I respect some of what Manning did in disseminating information and think his intentions were likely honorable in wanting to do so. At the same time, I think he chose a dishonorable and childish path for doing so, and committed very clear cut crimes in doing so. The concepts are not mutually exclusive. And, yes, I am personally stunned and saddened by people that glibly do not see deeper concerns and implications of what this troubled young man has done, even if it has had valuable benefit.

    Back to your question of what did Davis sacrifice? He put his name, reputation, career and life right out front and on the line in a focused manner. In a presumptively protected and proper process. Contrast that with a guy who surreptitiously and anonymously made an indiscriminate dump to a foreign internet site. I would say Davis put quite a bit on the line, and did so as to important information in an honorable fashion. Manning put quite a bit on the line, with some important information, and much which was simply gratuitous, in a, at least in my opinion and for the reasons delineated, not nearly as honorable fashion.

    It is fairly amazing to watch the cult of Manning and Wikileaks shriek “authoritarian!” “check for brain tumor!” when anybody questions the factual and legal specifics of their doe eyed beliefs.

    You are concerned that I might have been a little sarcastic in pointing out the logical result of your postulate, after you entered the fray stating that my and/or Aaron Bady’s thoughts were the equivalent of racist excuses? And now you demur? Please.

  109. bmaz says:

    @Benjamin Franklin: Psychological breakdown or duress. I cannot see duress at all, breakdown I don’t know about either. Disillusionment maybe. I did not put Boyce together with Falcon when you first referred to him, nor when Jeff picked that line up. Boyce was just a flat out traitor to my mind; I got nothing for him at all. I do have a pretty fair measure of sympathy and measure of gratitude as to Manning, and truly hope his resolution reflects the same ultimately from the government, irrespective of the fact I think he committed clear cut offenses that must be formally addressed. But I understand your point in general.

  110. Benjamin Franklin says:


    Just an fyi. You can take it for what it’s worth, but I think you fire before you aim, sometimes. I note that as my own failing, as well. Perhaps it’s my own comments that are unclear, but you seem to reflexively answer without comprehending the actual point. Just sayin’ When you (editorial sense) post opinions you know will get some blowback, it’s rather easy to get defensive.

  111. b2020 says:

    Davis is no Ellsberg. Manning is not, either, but I doubt Ellsberg is going to give Davis the same credit he gave Manning.

    Davis is a fool: He might well get pressured like Ellsberg, or Manning, yet his attempt to have his orders and break them, too, is going to make his act of restrained conscience less effectual because of his having it both ways.

    The issue of upholding your oath by disobeying orders is a tricky one, and yes, you will go to jail in a world of bmazzers valuing process over principles at all cost, and the rule of law might well require that.

    But if Davis wants to go to war, he has to consider the possibility that his superiors and their civilian masters do not see themselves bound by oath at all. He might well wind up in the same spot as Manning, if his teichoscopic leak (*) threatening to be effective as the real thing.

    As for bmaz, I’d take Ellsberg’s judgment on the matter.


  112. Benjamin Franklin says:

    and the rule of law might well require that.

    if i might hazard the corruption of a quote; “The Law was made for Man. Not Man for the Law”

  113. bmaz says:

    @Benjamin Franklin: That may be a fair criticism, but I have thought this out over a long time and am fairly comfortable with my analysis and view. As i admitted, I did not put Boyce together at first, but once I realized, I still do not find him particularly analogous to Manning, even as to mental state and motivation. But we can amicably disagree on that. But, you are right, I do get a bit defensive after a while when, despite a fairly long record, across the spectrum of issues, I am suddenly deemed an authoritarian, excuser of war crimes, disgusting, pathetic, perverse, embarrassment, intellectually confused, contemptible, steel rod in my ass, equivalent of a racist, jerk and, my personal favorite, consumed by a brain tumor. Now that is all okay, it is a discussion and debate and I am a big boy, can take as well as I give and can defend myself; but I will defend.

    It is kind of amusing that folks who stand and cheer when the law and rule of law is applied to things they are against, turn into blistering scolds and demeanors when the same analysis is applied to their pet causes. I am a human, and thusly affected by my own eyesight and experiences etc., but try to call them as I see them as to how and why under the law. If that is not comfortable for everybody all of the time, I am sorry. I am not always necessarily right, and sometimes there is no “right” to be had on a scenario or issue. So be it, I will continue to give my best shot; the chips can fall where they may.

  114. Kathleen says:


    It was clearly more of a question than a conclusion. When you take an oath to “defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same” Even after pledging an oath to the constitution and to the Pres and officers if one determines that a greater harm will come to your country, fellow soldiers, constitution etc if you obey the orders of military officials etc which oath comes first?

    Hopefully what soldiers learn from this is that there is a step by step procedure set out to follow when one’s conscience determines that a much greater harm is taking place that others need to be aware of

  115. Jeff Kaye says:

    @bmaz: My point about Boyce was mainly (and I’ll apologize if infelitiously or incompletely stated) was that his was the reactivity of a very young idealistic man, who chose a road of illegality.

    Yes, Boyce chose outright to be a traitor. I don’t think Manning did anything of the sort. But in both cases, each was motivated by high crimes in government, the exposure to knowledge of which fell upon lightly developed, that is, immature minds. Not that these minds were wrong in perceiving great wrongs, but no adult in his early 20s has the maturity or experience to handle such knowledge, and each made decisions they felt were in some way irrevocable.

    Each certainly had their own psychological reasons for doing so. Neither is really comparable with what career military/intelligence men like Ellsberg and Davis have done, who had far greater instrumental knowledge and experience, and crafted their releases accordingly.

    I am a bit taken aback at the placement of your animus, even with Boyce. He is despicable, a traitor, but I hear not a word about the fact that his greatest revelation concerned the revelation that the US subverts the democracy of even its “democratic” allies, and in a major way. I can understand that Boyce, understanding that Pine Gap was essentially stolen by the US for satellite purposes decided to even the score, so to speak, and sell satellite information to the Soviets. It is certainly not a choice I would have made, but one a young, impressionable man did make, and he paid for it with decades in prison (along with the bank robberies).

    Who really was the traitor to the nation though? If Boyce was a traitor, how would you label those in power who engineered the overthow of governments, assassinated leaders, or had them (when they had the opportunity, as in Australia) removed by bureaucratic means?

    The equivalence is this: young people exposed to evidence of great crimes will from time to time act upon them. Young people are passionate and somewhat totalistic. They adhere to ideologies quickly and act impulsively. This is why young people are recruited to fight wars, jihads, and campaign for political leaders or parties. This will not be the last time an idealistic young person acts radically in the cause of righting, as they see it, a great wrong.

  116. Frank33 says:

    Sorry to say, it was not similar treatment by Patrick Fitzgerald. Libby REVEALED CLASSIFIED SECRETS. Libby was not prosecuted for that. Libby paid a fine. The neo-cons are still laughing about that.

    Fitzgerald is still trying to suppress Peter Lance’s revelations about the phony war on terror. Fitzgerald has also allowed the convicted terrorist Ali Mohamed to go free. It is OK to allow terrorists their freedom even if they have been convicted. That makes Fitzgerald a terrorist because he supplied material support to Ali Mohamed.

    Fitzgerald did prosecute David Headley, for killing six Americans, and 160 other people, at Mumbai. Headley received a life sentence. That is the same punishment the neo-cons, such as Fitzgerald, want for Manning.

  117. Jeff Kaye says:

    @bmaz: ” I simply respect the rule of law and the Constitutional system of governance it is based on.”

    Perhaps this is where I have come to differ from you. Too much blood and sorrow has been engendered by a system that does not, clearly, respect the rule of law. This is less evident to the everyday American citizen than it is to the citizens of Latin America, Southeast Asia, Iraq, and much of the world. We are all living through the period of the Great Blowback, as the imperialist agenda abroad, with its militaristic aims and practices, now comes home to roost.

    I, too, respect law, and the necessity for justice embedded in the practice of the law. But the acid has already eaten away the foundations, or nearly so. “What rough beast”, as Yeats put it, “its hour come round at last, slouches towards Bethlehem to be born.”

    Davis’s report will go the way of the Taguba report, the SASC report, and other reports before it. Systemic change is needed, and it is needed now.

  118. Kathleen says:

    @Jeff Kaye:
    “We are all living through the period of the Great Blowback, as the imperialist agenda abroad, with its militaristic aims and practices, now comes home to roost.”

    Too logical Jeff

    Watch out …they might be knocking at your door

  119. PeasantParty says:

    @Jeff Kaye: Re: Davis’s report:

    I’m sad to agree, but it is truth in my opinion. I have no idea what he included in his Classified version or what he actually told members of Congress. I still think that since he is going to have to pay for his revelations that he should have shown the full Monty and not just the Burlesque. I said as much at other sites on the subject.

  120. Jeff Kaye says:

    How far can someone in the military or Congress go to get Congress to investigate? A well-known (inside the IC) former director of a top secret military intelligence unit saw his superiors lie to Congress about the activities of his unit. He went to the Inspector General. He went to the other intelligence authorities. He finally leaked his declassified documents to the press, only to see his expressed wish to testify before Congress denied. You may know about this figure by the name which the IG called him, “Iron Man.” As most know, it is futile to get heard that which is politically inexpedient.

    If Davis has gotten as far as he has, it is because his critique represents that of a certain section of the military, particularly mid-level officers (who he notes are leaving the military in droves), and probably certain higher officers and politicians as well. Only a naif would believe that Davis stood alone against the Pentagon and got as far as he has.

  121. Jeff Kaye says:

    @Kathleen: I don’t know about my door, but historian Alfred McCoy has undertaken an academic examination of exactly how such techniques of repression used abroad are then transferred to the domestic front. See his recent book, Policing America’s Empire: The United States, the Philippines, and the Rise of the Surveillance State, Univ. of Wisconsin Press.

    In Policing America’s Empire Alfred W. McCoy shows how this imperial panopticon slowly crushed the Filipino revolutionary movement with a lethal mix of firepower, surveillance, and incriminating information. Even after Washington freed its colony and won global power in 1945, it would intervene in the Philippines periodically for the next half-century—using the country as a laboratory for counterinsurgency and rearming local security forces for repression. In trying to create a democracy in the Philippines, the United States unleashed profoundly undemocratic forces that persist to the present day.

    But security techniques bred in the tropical hothouse of colonial rule were not contained, McCoy shows, at this remote periphery of American power. Migrating homeward through both personnel and policies, these innovations helped shape a new federal security apparatus during World War I. Once established under the pressures of wartime mobilization, this distinctively American system of public-private surveillance persisted in various forms for the next fifty years, as an omnipresent, sub rosa matrix that honeycombed U.S. society with active informers, secretive civilian organizations, and government counterintelligence agencies. In each succeeding global crisis, this covert nexus expanded its domestic operations, producing new contraventions of civil liberties—from the harassment of labor activists and ethnic communities during World War I, to the mass incarceration of Japanese Americans during World War II, all the way to the secret blacklisting of suspected communists during the Cold War.

  122. Kathleen says:


    Frank 33. Know it is not the same. Just hope Manning walks. Will we ever know how that Plame outing effected US National Security? How much it cost in blood, time and treasure? How would the harm that Mannings release of information caused compared to the effects of the outing of Plame

  123. Frank33 says:

    Your comment hits too close to the truth. It is not just Valerie. The Niger trip by Joe Wilson is linked to the Niger Forgeries, another coverup. Then, the architects of the Irak and Afghanistan wars, went after the Wilsons, because they could, and to make a lesson for other whistleblowers. Wars, that violate international law, meet COINTELPRO.

    Everything is CLASSIFIED because, if one thread gets loose, the whole clusterfuck will come apart.

  124. Benjamin Franklin says:

    “It is kind of amusing that folks who stand and cheer when the law and rule of law is applied to things they are against, turn into blistering scolds and demeanors when the same analysis is applied to their pet causes. I am a human, and thusly affected by my own eyesight and experiences etc., but try to call them as I see them as to how and why under the law”

    There is more than enough acrimony to go around. Your diligence and honesty is appreciated.

  125. bmaz says:

    @Jeff Kaye: Oh, I understand that point, and have enough background in that from long ago college to grok. But, legally, they are adults and as such, it becomes, at best, mitigation, not a valid excuse. And, one of my points is, like it or not, I think that is especially true under the structure and ethos of the military. Which is, as I say, not to discount the fact and effect of what you are saying.

  126. Kathleen says:


    And our MSM has been recycling all of those warmongers everywhere you look and listen for 10 years. They are resurfacing in mass recently Robert Kagan on the Diane Rehm show today, Elliot Abrams on GPS this past Sunday, Kagan and Max Boot policy analyst with the Romney campaign, Wolfowitz going to be on Fareed Zakaria on Feb 27th, Addington and Wolfowitz asking questions at one of the Republican debates. Why the flying f— do we have to hear from individuals who I believe were purposely wrong about Iraq all in the name for supposed fairness. Why does the MSM promote these bloody warmongers instead of pushing for accountability for their crimes against humanity?

  127. Kathleen says:


    Hell Auto rental services will not even rent people under 25 or 26 vehicles.

    Ingredients… Young age mixed in with a conscience, along with war trauma. Seems like a recipe for an intelligence spill

  128. William Crump says:

    Screw the rules. When the government obeys it’s own rules, there is a case to be made that it is somehow immoral that Manning broke them. But it doesn’t. Manning is a hero because he did the RIGHT thing, not the legal thing. The laws are only just when applied fairly. Torturers (for example, Barack Obama, for authorizing Manning’s detention) walk free while people who worked against such are, well, tortured. The law is broken, Bmaz, and Mannings defiance of it is heroic.

  129. Kathleen says:

    @William Crump:
    “screw the rules” attitudes sure do have a tendency to trickle down from on high. Manning did the right thing even though he may have gone over board. Damn interesting that a young man who exposed the American public to some of the reality on the ground is being held accountable for his alleged crimes. But those who lied the nation into that war have not only not been held accountable they are all over our MSM pushing for another military confrontation. Real justice

  130. tinao says:

    But really I’d like you to hear Claudia’s Beaver Song that I can’t find on youtube for you anymore. Whats up with that?

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