This week, Hot Air was invited to a conference call for the press hosted by the Bradley Manning Support Network, updating us on the latest events in the ongoing saga of the incarcerated subject. The first order of business was to note that the next step in the legal process is an Article 13 pre-trial hearing to be held “in mid-summer.” Additional motions and maneuvering are projected to delay the start of the actual trial until late fall or early winter, most likely in December.

I should be clear that this meeting was not any sort of balanced debate presenting both possible sides of the story. That shouldn’t come as a surprise given the name of the hosting organization. This was a group of devout anti-war activists who label Manning as “hero” on a regular basis and are working to secure his release. But the list of speakers is still noteworthy for this report.

  • Daniel Ellsberg, retired defense analyst known for releasing the Pentagon Papers
  • Julian Assange, editor-in-chief of Wikileaks
  • Jesselyn Raddack, attorney and staff member of the Government Accountability Project
  • Ann Wright, Retired Lt. Colonel of the United States Army
  • Christina McKenna, activist arrested at Quantico in an action to support Bradley Manning
  • Kevin Zeese (moderator), attorney with the Bradley Manning Support Network

To be honest, I didn’t find the majority of the content from the guest speakers particularly notable or surprising. It was mostly a series of testimonials to how “important” the “work” of people like Bradley Manning is, and how such “patriotic” actions should be supported. I will confess, however, that some of the vehemence I heard against Barack Obama was rather shocking, with a definite sense of feeling betrayed on the part of the speakers. I suppose they assumed that the President would abdicate his responsibilities as Commander in Chief and simply intercede on Manning’s behalf.

More startling, though, were a few of the comments directed not at Manning or his specific situation, but at the military in general. The first speaker was Daniel Ellsberg of Pentagon Papers fame. (I got to question Ellsberg individually later, which is covered below.) He started out by saying, “I was the Bradley Manning of my day.” This, of course, rather ignores the fact that he was a civilian employee of the RAND corporation at the time he released that information, having long since completed his term of service in the military.

Jesselyn Raddack chose to focus on Manning’s exposure of what came to be known as the “Collateral Murder Video.” This was rather shocking, as she seemed to pretend that Manning hadn’t allegedly also released tons of unrelated but classified data in a scatter-shot fashion. I lost track of the number of times she used the phrase “war crimes” but she made it clear that she felt the exposure of the video in question justified classifying Manning as a “whistleblower” who is owed immunity, freedom and acclaim. All of this, of course, ignores the fact that the soldiers in question in the video were investigated, cleared, and the video clearly showed one of the targets holding a rocket launcher.

Christina McKenna was representing 33 people who are going to trial for their protests at Quantico where they were arrested and may be sentenced to large fines or up to a year in jail. Ms. McKenna is clearly so enamored of Manning’s activities that she plans to refuse to pay any fines if convicted, instead choosing to go to jail, “to support Bradley.’

I can not believe the amount of civilian casualties [the tapes] revealed, or the callousness and deceit of the US military and government officials from around the world.

The final speaker was Assange, but to be honest, he wandered around from one incomprehensible charge to the next in a fashion that made him rather difficult to follow. Should you wish to hear the entire call for yourself, however, you can find a downloadable audio file of it here and decide for yourself.

After we were finished, I found myself taking exception with some of the opinions expressed by Ellsberg and arranged to submit a few questions to him. Rather than leave us open to charges of selective editing, I’ll give you the opportunity to review them precisely as submitted and answered.

1. Just to ensure I have the timeline correct, could you confirm (or correct, if inaccurate) that at the time of the release of documents leading to the Pentagon Papers, you were fully released from the military and were a civilian employee of either the RAND Corporation or of the State Dept.? (Unsure of the timing.)

2. How would you characterize the difference in responsibilities and options between civilian and military personnel in matters of security and containment of materials deemed classified?

3. Do you feel that individual soldiers should be the final arbiters as to which orders they should or should not obey?

4. Starting from the entirely plausible assumption that we have a problem with overclassification of documents, both in the military and the civilian government, do you find it acceptable that a Private First Class be the person to make the final determination when materials have been overclassified, or could the matter be more effectively addressed from the top down?

Ellsberg’s answers did not in my opinion, cover all of the questions asked, but I’ll try to dig out the portions which seem to apply and then include the entire response in the interest of full transparency. We start off with the easy one, that being the first question of his status re: military service and the dates involved.

Dear Jazz: The first is easily answered: I was fully released from the Marines (active duty) in February 1957 (reserves in 1961). I was a civilian employee of RAND 1958-64 and 1967-70 (and a consultant for the DOD much of that time). DOD, 1964-65, State 1965-67. In 1971 I was a researcher at the Center for International Studies, MIT. So I wasn’t subject to military regulations in releasing the Pentagon Papers. Xeroxing (even a classified document) is not a crime for a civilian (though the Justice Department experimented in my case for the first time in calling it one, under the Espionage Act). But putting a Lady Gaga CD into an official network (quite apart from downloading data onto it) IS a crime under the UCMJ, to which Manning is subject. (your question 2)…

The next part seems to be an answer to the question of whether or not soldiers are obligated to follow orders.

Of course, there is a public presumption that privates, or enlisted men in general, should follow all orders and regulations unquestioningly, like robots, and should be “deciding” almost nothing for themselves, least of all the legality or appropriateness of higher orders. But that’s not what I was taught as a private (OCC in the Marines) or as a second lieutenant or what I taught others as a rifle company commander or battalion training officer, in connection with the laws of war or the Nuremberg obligations. Who else BUT the ultimate executant of possibly lethal (or illegal) orders is to be “the final arbiter” of whether it is his or her duty to obey or to disobey (and expose or resist)? It is not only NOT the duty of such a person–whether a private or a general–to obey an illegal order (for practical purposes, this has to be interpreted as a “blatantly illegal” order–a relatively rare event–in view of the “benefit of the doubt” that all military subordinates are supposed to and do give to directives from superiors), it is their duty to DISOBEY it, expose it and resist it. That is the essence of the Nuremberg principles, as embodied in laws of war and military regulations.

This is fairly shocking, speaking as a veteran myself. The idea that each and every order is subject to examination by the solider is anathema to the entire core of a functional military. Yes, there are extreme examples, such as the Nuremberg cases, but trying to draw some sort of parity between that hellish example and a private with a blank Lady Gaga CD dumping tons of classified dispatches is beyond a stretch. I think perhaps Mr. Ellsberg is a few too many years removed from his service with the Marines.

This final portion covers – I believe – the question of whether or not an army private is the best person to determine when documents have been incorrectly classified.

In Iraq, specialist Manning (whose Iraq war logs–if he was the source–revealed 15,000 deaths of civilians beyond those tallied by the Iraq Body Count. Not all “deliberately,” of course, but many reflecting illegal Rules of Engagement such as those that permitted or directed the killing of the unarmed men in civilian clothes–including two Reuters journalists–and the occupants of a van attempting to succour them (including two children), revealed by the Apache helicopter video.

(And what was the rank of the officials who decided to deny Reuters’ FOIA requests to release that video? They too were “final arbiters” of what the public should be allowed to know or see about the conduct of this war. Manning proved a better one, if he were the source to Wikileaks. None of which is to say that his judgment, or Julian Assange’s, is beyond investigation or criticism or is always going to be right. But which has a better track record so far, in deciding what has been “overclassified” ?

The PROBLEM comes from “top down” and will not be remedied at that level; the people on top know very well what they don’t want the public to know, what will embarrass them or make them subject (in principle, not really in practice) to prosecution. If the people at lower levels don’t exercise any independent judgment, then internal crimes, deceptions, recklessness, waste and corruption will never be known by outsiders, let alone held accountable and changed. In the military, especially, superiors are responsible both for the training, discipline, and supervision of subordinates–in short, for their crimes or major errors (see General Yamashita, in the Tokyo trials), but in many cases they are are directly responsible for directing the culpable behavior.

I don’t even know what to say to that type of “reasoning.” I leave it to the reader to judge. That’s all for this report, but following, as promised, is the full text of Ellsberg’s long and somewhat meandering response to me, lest we be accused of “taking him out of context.”

Dear Jazz: The first is easily answered: I was fully released from the Marines (active duty) in February 1957 (reserves in 1961). I was a civilian employee of RAND 1958-64 and 1967-70 (and a consultant for the DOD much of that time). DOD, 1964-65, State 1965-67. In 1971 I was a researcher at the Center for International Studies, MIT. So I wasn’t subject to military regulations in releasing the Pentagon Papers. Xeroxing (even a classified document) is not a crime for a civilian (though the Justice Department experimented in my case for the first time in calling it one, under the Espionage Act). But putting a Lady Gaga CD into an official network (quite apart from downloading data onto it) IS a crime under the UCMJ, to which Manning is subject. (your question 2)

In the government my rank, by the way, was GS-18 or FSR-1, the civilian equivalent of major general. I only wish that someone with the values of private Manning had had the kind of access that I did, rather than being limited to Secret cables, especially before we were fully committed in Iraq or to escalating in Afghanistan. But those values–which urge one to obey THE LAW rather than one’s order or regulations,at whatever cost to oneself, when masses of lives are at stake–are regrettably rare in all ranks.

The others call deserve longer answers than I can manage at this particular moment; we could discuss later if you wanted, but I understand you want some comment today.

Of course, there is a public presumption that privates, or enlisted men in general, should follow all orders and regulations unquestioningly, like robots, and should be “deciding” almost nothing for themselves, least of all the legality or appropriateness of higher orders. But that’s not what I was taught as a private (OCC in the Marines) or as a second lieutenant or what I taught others as a rifle company commander or battalion training officer, in connection with the laws of war or the Nuremberg obligations. Who else BUT the ultimate executant of possibly lethal (or illegal) orders is to be “the final arbiter” of whether it is his or her duty to obey or to disobey (and expose or resist)? It is not only NOT the duty of such a person–whether a private or a general–to obey an illegal order (for practical purposes, this has to be interpreted as a “blatantly illegal” order–a relatively rare event–in view of the “benefit of the doubt” that all military subordinates are supposed to and do give to directives from superiors), it is their duty to DISOBEY it, expose it and resist it. That is the essence of the Nuremberg principles, as embodied in laws of war and military regulations.

That is not to say that this obligation is very often observed. On the contrary, it is generally (but not quite universally) violated, because the personal risks of disobeying any order greatly outweigh the personal risks of obeying it. So even officers, let alone enlisted men, rarely do fail to obey and to maintain the secrecy of even blatantly illegal orders, which do occur: e.g., orders to kill people under custody, or clearly unthreatening and unarmed people including old women and infants; or (throughout the Iraq war-logs revealed by Wikileaks) to hand over prisoners to be tortured by our Iraqi allies, and to fail to investigate any such suspicions, reports or events.

The latter order, very frequent in those logs, was blatantly illegal in view of our international obligations to investigate (and to resist) any plausible instances of torture. Then-corporal Manning’s attempt to report and change this behavior–“I was actively participating in things I was totally against”–was met by the illegal order to refrain from investigating further and to continue the illegal round-up and turnover for torture: in short, blatant cover-up, which was itself illegal.

Manning, at the very bottom of the chain of command, was the only one to OBEY the law on this count (by exposing the practice and the orders not to investigate, and by revealing the Apache helicopter assault: if he was indeed the source). Both his choices and those of the myriad colleagues who continued to participate and to keep their silence reflected low-level choices: his, both right AND legal, the others’, neither.

OF COURSE, the privates and sergeants who were ordered by Lt. Calley and Capt. Medina to kill all women and infants (there were virtually no men present, except old men) in My Lai hamlet should have refused to obey, should have protected (with their lives, if necessary) the victims from deliberate slaughter (as did Warrant Officer Hugh Thomson), should have attempted to bring Lt. Calley under immediate arrest if he persisted in his blatantly illegal commands (a bizarre thought? Nothing less could actually have stopped the ongoing slaughter). One sergeant (aside from Thomson), Bernhardt, did refuse to obey and refrained from shooting, hanging his M16 muzzle downwards on his shoulder; and later, he was one who exposed the crimes to Ron Ridenhour. His colleagues who carried out the order, were being “final arbiters” of the appropriateness of the policy just as much as he was. They were very wrong, he was right. (But their behavior was, unfortunately, to be expected as virtually universal, given the “operational norms” of the military as distinct from the formal regulations since Nuremberg).

It isn’t simply a matter of “obeying one’s conscience”; unfortunately, our socially-constructed consciences all too often have become voices of conformity, demanding that we “carry out our duty” (orders) as defined by authority: even when these orders arguably, or even blatantly, defy the law. (See the Milgram experiments). Most of those soldiers (see counterparts in the “kill team” in Afghanistan, or at Haditha) would actually feel guilty, or at least uneasy, if they DISOBEYED those orders. Bernhardt alone at My Lai took the actual laws forbidding deliberate killing of noncombatants seriously.

In Iraq, specialist Manning (whose Iraq war logs–if he was the source–revealed 15,000 deaths of civilians beyond those tallied by the Iraq Body Count. Not all “deliberately,” of course, but many reflecting illegal Rules of Engagement such as those that permitted or directed the killing of the unarmed men in civilian clothes–including two Reuters journalists–and the occupants of a van attempting to succour them (including two children), revealed by the Apache helicopter video.

(And what was the rank of the officials who decided to deny Reuters’ FOIA requests to release that video? They too were “final arbiters” of what the public should be allowed to know or see about the conduct of this war. Manning proved a better one, if he were the source to Wikileaks. None of which is to say that his judgment, or Julian Assange’s, is beyond investigation or criticism or is always going to be right. But which has a better track record so far, in deciding what has been “overclassified” ?

The PROBLEM comes from “top down” and will not be remedied at that level; the people on top know very well what they don’t want the public to know, what will embarrass them or make them subject (in principle, not really in practice) to prosecution. If the people at lower levels don’t exercise any independent judgment, then internal crimes, deceptions, recklessness, waste and corruption will never be known by outsiders, let alone held accountable and changed. In the military, especially, superiors are responsible both for the training, discipline, and supervision of subordinates–in short, for their crimes or major errors (see General Yamashita, in the Tokyo trials), but in many cases they are are directly responsible for directing the culpable behavior.

It is not the superiors who are going to be willing to uncover and reveal these shortcomings to outside authorities; it’s people down the ladder, who feel themselves less responsible for the faulty behavior, who will blow the whistle, if anyone. There is simply no alternative to relying on their sense of obligation (despite their lowly status, and despite the personal risks that are always involved in embarrassing a superior) for the information that is vital to democratic governance.

No matter how much action is taken to reduce “overclassification” (and Obama, aside from rhetoric, has moved in the opposite direction), there will always be an urgent need for whistleblowers. And I wish that it was more often people near the top of the ladder, with the most access and the broadest view of consequences and policies, who chose to obey their oaths to defend the Constitution, but that isn’t the way it happens.

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