[Ppnews] The Trials of Bradley Manning, A Defense

[Political Prisoner News]

Tomgram: Chase Madar, The Trials of Bradley Manning, A Defense



By Chase Madar
Posted on February 10, 2011, Printed on February 10, 2011
http://www.tomdispatch.com/blog/175352/

The Obama administration came into office 
proclaiming 
<http://www.gwu.edu/%7Ensarchiv/news/20090121/index.htm>"sunshine" 
policies.  When some of the U.S. government's 
dirty laundry was laid out in the bright light of 
day by WikiLeaks, however, its officials 
responded in a knee-jerk, punitive manner in the 
case of Bradley Manning, now in 
<http://www.guardian.co.uk/world/2011/feb/05/wikileaks-bradley-manning-punitive>extreme 
isolation in a Marine brig in Quantico, 
Virginia.  The urge of the Obama administration 
and the U.S. military to 
<http://www.salon.com/news/opinion/glenn_greenwald/2010/12/14/manning/index.html>break 
his will, to 
<http://fdlaction.firedoglake.com/2011/01/25/quantico-brig-commander-continues-to-abuse-his-authority-and-defy-medical-experts-in-bradley-manning-detention/>crush 
him, is unsettling, to say the least.  Whatever 
happens to Julian Assange or WikiLeaks, 
Washington is clearly 
<http://fdlaction.firedoglake.com/2011/01/31/bradley-manning-punitive-psychiatric-status-remains-but-hopeful-about-youth-uprising-in-tunisia-and-egypt/>intent 
on destroying this young Army private and then 
putting him away until hell freezes over.

It should not be this way.

Today, thanks to lawyer and essayist Chase Madar, 
TomDispatch is making a long-planned gesture 
towards Manning, whose acts, aimed at revealing 
the worst this country had to offer in recent 
years, will someday make him a genuine American 
hero -- but that’s undoubtedly little consolation 
to him now.  When it comes to America’s recent 
wars, its torture regimes, 
<http://www.newyorker.com/reporting/2007/08/13/070813fa_fact_mayer>black 
sites, and 
<http://www.tomdispatch.com/post/7789/tom_engelhardt_the_CIA%27s_la_dolce_vita_war_on_terror>extraordinary 
renditions, as well as the 
<http://www.tomdispatch.com/post/174954/tomgram%3A__collateral_ceremonial_damage/>death 
and destruction 
<http://www.tomdispatch.com/post/175120/tom_engelhardt_war_of_the_worlds>visited 
on distant lands, blood 
<http://www.tomdispatch.com/archive/175282/tom_engelhardt_out_damned_spot>is 
on many official American hands, but not on 
Manning’s.  Those officials should be held accountable, not him.

With that in mind, TomDispatch offers its version 
of the defense of Bradley Manning.  (To catch 
Timothy MacBain’s latest TomCast video interview 
in which Chase Madar explores Manning’s case and 
his defense, click 
<http://tomdispatch.blogspot.com/2011/02/in-defense-of-pfc-manning.html>here, 
or download it to your iPod 
<http://click.linksynergy.com/fs-bin/click?id=j0SS4Al/iVI&subid=&offerid=146261.1&type=10&tmpid=5573&RD_PARM1=http%3A%2F%2Fitunes.apple.com%2Fus%2Fpodcast%2Ftomcast-from-tomdispatch-com%2Fid357095817>here.) 
Tom

Why Bradley Manning Is a Patriot, Not a Criminal
An Opening Statement for the Defense of Private Manning
By <http://www.tomdispatch.com/authors/chasemadar>Chase Madar

Bradley Manning, a 23-year-old from Crescent, 
Oklahoma, enlisted in the U.S. military in 2007 
to give something back to his country and, he hoped, the world.

For the past seven months, Army Private First 
Class Manning has been held in solitary 
confinement in the Marine Corps brig in Quantico, 
Virginia. 
<http://realcostofprisons.org/blog/archives/2010/01/new_site_solita.html>Twenty-five 
thousand other Americans are also in prolonged 
solitary confinement, but the conditions of 
Manning’s pre-trial detention have been 
<http://www.armycourtmartialdefense.info/2011/01/pfc-bradley-manning-is-not-being.html>sufficiently 
brutal for the United Nation’s Special Rapporteur 
on Torture to 
<http://www.guardian.co.uk/world/2010/dec/23/un-treatment-leaks-bradley-manning>announce 
an investigation.

Pfc. Manning is alleged to have obtained 
documents, both classified and unclassified, from 
the Department of Defense and the State 
Department via the Internet and provided them to 
WikiLeaks.  (That “alleged” is important because 
the federal informant who fingered Manning, 
Adrian Lamo, is a 
<http://www.securityfocus.com/news/7771>felon 
convicted of computer-hacking crimes. He was also 
<http://www.wired.com/threatlevel/2010/05/lamo/>involuntarily 
committed to a psychiatric institution in the 
month before he levelled his accusation.  All of 
this makes him a less than reliable witness.)  At 
any rate, the records allegedly downloaded by 
Manning revealed clear instances of war crimes 
committed by U.S. troops in 
<http://www.newyorker.com/online/blogs/newsdesk/2010/04/the-wikileaks-video-and-the-rules-of-engagement.html>Iraq 
and 
<http://www.nytimes.com/2009/06/22/world/asia/22airstrikes.html>Afghanistan, 
widespread torture 
<http://www.bbc.co.uk/news/world-middle-east-11611319>committed 
by the Iraqi authorities with the full knowledge 
of the U.S. military, previously unknown 
estimates of the number of Iraqi civilians 
<http://www.telegraph.co.uk/news/worldnews/middleeast/iraq/8082605/Wikileaks-Civilians-gunned-down-at-checkpoints.html>killed 
at U.S. military checkpoints, and the massive 
Iraqi 
<http://www.cbc.ca/world/story/2010/10/23/wikileaks-iraqi-death-toll.html>civilian 
death toll caused by the American invasion.

For bringing to light this critical but 
long-suppressed information, Pfc. Manning has 
been treated not as a whistleblower, but as a 
criminal and a spy.  He is 
<http://www.bradleymanning.org/3163/charge-sheet-html/>charged 
with violating not only Army regulations but also 
the Espionage Act of 1917, making him the fifth 
American to be charged under the act for leaking 
classified documents to the media.  A 
court-martial will likely be convened in the spring or summer.

Politicians have 
<http://news.antiwar.com/2010/11/30/mike-huckabee-demands-bradley-mannings-execution/>called 
for Manning’s head, sometimes 
<http://www.huffingtonpost.com/2010/08/03/mike-rogers-republican-co_n_668968.html>literally. 
And yet a strong legal defense for Pfc. Manning 
is not difficult to envision.  Despite many 
remaining questions of fact, a legal defense can 
already be sketched out.  What follows is an 
“opening statement” for the defense.  It does not 
attempt to argue individual points of law in any 
exhaustive way.  Rather, like any opening 
statement, it is an overview of the vital legal 
(and political) issues at stake, intended for an 
audience of ordinary citizens, not Judge Advocate General lawyers.

After all, it is the court of public opinion that 
ultimately decides what a government can and 
cannot get away with, legally or otherwise.

Opening Statement for the Defense of Bradley Manning, Soldier and Patriot

U.S. Army Private First Class Bradley Manning has 
done his duty.  He has witnessed serious 
violations of the American military’s Uniform 
Code of Military Justice, violations of the rules 
in 
<http://faculty.ed.umuc.edu/%7Enstanton/FM27-10.htm>U.S. 
Army Field Manual 27-10, and violations of 
international law.  He has brought these 
wrongdoings to light out of a profound sense of 
duty to his country, as a citizen and a soldier, 
and his patriotism has cost him dearly.

In 2005, General Peter Pace, Chairman of the 
Joint Chiefs of Staff, 
<http://www.foxnews.com/story/0,2933,177119,00.html>told 
reporters: “It is absolutely the responsibility 
of every U.S. service member [in Iraq], if they 
see inhumane treatment being conducted, to try to 
stop it.”  This, in other words, was the 
obligation of every U.S. service member in 
Operation Iraqi Freedom; this remains the 
obligation of every U.S. service member in 
Operation Enduring Freedom in Afghanistan.  It is 
a duty that Pfc. Manning has fulfilled.

Who is Pfc. Bradley Manning?  He is a 23-year-old 
Private First Class in the U.S. Army.  He was 
raised in Crescent, Oklahoma (population 1,281, 
according to the last census count).  He enlisted 
in 2007. “He was basically really into America,” 
<http://thislandpress.com/09/23/2010/private-manning-and-the-making-of-wikileaks-2/>says 
a hometown friend.  “He was proud of our 
successes as a country.  He valued our freedom, 
but probably our economic freedom the most.  I 
think he saw the U.S. as a force for good in the world.”

When Bradley Manning deployed to Iraq in October 
2009, he thought that he’d be helping the Iraqi 
people build a free society after the long 
nightmare of Saddam Hussein. What he witnessed 
firsthand was quite another matter.

He soon found himself 
<http://firedoglake.com/merged-manning-lamo-chat-logs/>helping 
the Iraqi authorities detain civilians for 
distributing “anti-Iraqi literature” -- which 
turned out to be an investigative report into 
financial corruption in their own government 
entitled “Where does the money go?”  The penalty 
for this “crime” in Iraq was not a slap on the 
wrist. Imprisonment and torture, as well as 
systematic abuse of prisoners, are widespread in 
the new Iraq. From the military’s own 
<http://www.bbc.co.uk/news/world-middle-east-11611319>Sigacts 
(Significant Actions) reports, we have a 
multitude of credible accounts of Iraqi police 
and soldiers shooting prisoners, beating them to 
death, pulling out fingernails or teeth, cutting 
off fingers, burning with acid, torturing with 
electric shocks or the use of suffocation, and 
various kinds of sexual abuse including 
sodomization with gun barrels and forcing 
prisoners to perform sexual acts on guards and each other.

Manning had more than adequate reason to be 
concerned about handing over Iraqi citizens for 
likely torture simply for producing pamphlets 
about corruption in a government notorious for its corruptness.

Like any good soldier, Manning immediately took 
these concerns up the chain of command.  And how 
did his superiors respond?  His commanding 
officer 
<http://firedoglake.com/merged-manning-lamo-chat-logs/>told 
him to “shut up” and get back to rounding up more 
prisoners for the Iraqi Federal Police to treat however they cared to.

Now, you have already heard what the Chairman of 
the Joint Chiefs of Staff had to say about an 
American soldier’s duties when confronted with 
the torture and abuse of prisoners. Ever since 
our country signed and ratified the Geneva 
Conventions and the Convention against Torture, 
it has been the 
<http://www.hrw.org/en/news/2010/10/24/iraq-wikileaks-documents-describe-torture-detainees>law 
of our land that handing over prisoners to a body 
that will torture them is a war 
crime.  Nevertheless, between early 2009 and 
August of last year, our military handed over 
thousands of prisoners to the Iraqi authorities, 
knowing full well what would happen to many of them.

The next time Pfc. Manning encountered evidence 
of war crimes, he took a different course of action.

On the Secret Internet Protocol Router Network 
(SIPRNet) shared by the Departments of Defense 
and State Manning soon found irrefutable evidence 
of possible war crimes, including a now-infamous 
<http://www.collateralmurder.com/>“Collateral 
Murder” video in which a U.S. Apache helicopter 
mowed down some 18 civilians, including two 
Reuters journalists, on a street in Baghdad on 
July 12, 2007.  The world has now seen and been 
shocked by this video which Reuters is alleged to 
have had in its possession but had not yet made 
public.  Manning is alleged to have leaked it to 
the whistleblower site WikiLeaks in April 2010.

Manning also found a video and an official report 
on American air strikes on the village of Granai 
in Afghanistan’s Farah Province (also known as 
“the Granai massacre”). 
<http://www.nytimes.com/2009/06/22/world/asia/22airstrikes.html>According 
to the Afghan government, 140 civilians, 
including women and a large number of children, 
died in those strikes.  He is alleged to have 
released that video as part of a 
<http://www.guardian.co.uk/news/datablog/2010/jul/27/wikileaks-afghanistan-data-datajournalism>tranche 
of some 92,000 military documents relating to our 
escalating war in Afghanistan -- already the 
longest war our nation has ever fought -- and 
Pakistan, where the war is steadily 
spreading.  Manning is also alleged to have 
released to WikiLeaks some 
<http://www.guardian.co.uk/world/datablog/interactive/2010/oct/23/wikileaks-iraq-deaths-map>392,000 
documents regarding the Iraq War, many of which 
relate to the torture of prisoners, as well as 
some 
<http://www.guardian.co.uk/world/the-us-embassy-cables>251,000 
State Department cables.

Now, in your judgment of Bradley Manning, please 
know that the stakes are indeed high, but not in 
the feverish way our political and media elites 
have been telling you from nearly every 
newspaper, channel, and website in the land.  We 
will want you, a true jury of Manning’s military 
peers, to ask a few questions about what’s really 
been going on in this trial -- and in this 
country. After all, when we reward lawyers in the 
Justice Department who created memos that made 
torture legal with 
<http://www.harpers.org/archive/2009/06/hbc-90005271>federal 
judgeships and 
<http://www.huffingtonpost.com/2009/05/12/john-yoo-torture-memo-aut_n_202001.html>regular 
newspaper columns, while locking lock up a 
whistle-blowing private, you have to ask: What country are we now living in?

This trial couldn’t be more important or your 
judgment more crucial.  The honor of our country 
is very much at stake in how you decide.  When we 
let the aerial slaughter of civilian 
noncombatants pass without comment or review, 
when a reported 
<http://en.wikipedia.org/wiki/Granai_airstrike>92 
children die from an American air strike on an 
Afghan village and 
<http://www.newyorker.com/reporting/2010/06/07/100607fa_fact_khatchadourian>18 
civilians are shot dead on a Baghdad street 
without the slightest accountability, except when 
it comes to locking up the private who ensured 
that we would know about these acts -- let me 
repeat -- the honor of your country and mine is 
at stake and at risk.  Not the security of your 
country, though the prosecution will claim 
otherwise, but the honor of our country, and 
especially the honor of our military.

Pfc. Bradley Manning is one soldier who has done 
his duty.  He has complied with it to the 
letter.  Now you must do your duty as members of this jury and as soldiers.

Our Whistleblower Laws Protect Pfc. Manning

The prosecution will surely tell you that none of 
our existing whistleblower protection laws, 
interpreted narrowly, apply to Bradley Manning.

I say otherwise, and so will the experts we will 
call to the stand.  You will hear from legal 
expert 
<http://en.wikipedia.org/wiki/Jesselyn_Radack>Jesselyn 
Radack, an attorney and former whistleblower who 
was purged, punished, and then vindicated for her 
courageous acts of disclosing illegal wrongdoing 
inside the Bush administration’s Department of 
Justice.  Ms. Radack will explain to you why and 
how Bradley Manning is well protected by our 
current laws.  After all, the 
<http://en.wikipedia.org/wiki/Whistleblower_Protection_Act>Whistleblower 
Protection Act is designed to protect a 
government employee who exposes fraud, waste, 
abuse, or illegality to anyone inside or outside 
a government agency, including a member of the 
news media.  This is well supported by case 
law.  (See 
<http://www.ll.georgetown.edu/federal/judicial/fed/opinions/94opinions/94-3332.html>Horton 
v. Dep’t of Navy, 66. F3d 279, 282 (Fed. Cir. 
1995)].  Isn’t that exactly what Pfc. Bradley Manning has done?

As a fallback argument, the prosecution is sure 
to suggest that WikiLeaks is not a real media 
entity in the way that the New York Times 
is.  Any one of you who has ever gotten the news 
and information from the Internet knows otherwise.

The prosecution will also be eager to inform you 
that the 
<http://www.ig.navy.mil/complaints/Complaints%20%20%28Reprisal%20Military%20Whistleblower%20Protection%29.htm>Military 
Whistleblower Protection Act (MWPA) does not 
apply here.  We, however, will prove to you that 
the act applies with great and particular force 
to Pfc. Manning.  For one thing, the MWPA not 
only allows an even wider array of government 
officials to make disclosures of classified 
information, it also broadens the scope of what 
kinds of disclosure a soldier can make.  It 
expressly allows disclosures of classified 
information by members of the armed forces if 
they have a “reasonable belief” that what is 
being disclosed offers evidence of a “violation 
of the law,” “an abuse of authority,” or “a 
substantial danger to public safety.”  In other 
words, the purpose of the Military Whistleblower 
Protection Act is to protect soldiers just like 
Pfc. Manning who report on improper -- or in this 
case, patently illegal -- activities by other military personnel.

Now, there is no strict precedent, the 
prosecution will claim, for any of our 
whistleblower protection laws to apply to Pfc. 
Manning.  But as we will make clear, there is no 
contrary precedent either.  That’s because we’ve 
never seen a whistleblower disclosure as massive, 
vivid, and horrific as this one.  We are in 
uncharted territory.  If the plain language of 
these whistleblower protection laws is unclear, 
legal convention 
<http://www.lectlaw.com/def2/s104.htm>dictates 
that we look at the laws’ intent.  Clearly 
Congress meant, and legislative history supports 
this, for the whistleblower protection laws to 
protect whistleblowers, not -- as this 
administration seems to think -- to prosecute them.

The progress of our common law is prudent, it is 
incremental, it is slow.  But our common law is 
not dead.  It does progress.  Whether the common 
law will take that small step forward in the case 
of Pfc. Manning is your duty to decide.  And your 
decision will have repercussions.

For if you convict Bradley Manning, then you are 
also clearing the way to try and possibly convict 
Army Specialist 
<http://motherjones.com/politics/2008/03/am-i-torturer?page=2>Joseph 
Darby, the whistleblower who leaked the Abu 
Ghraib photos and thereby ended acts of torture 
and abuse that were shaming our military and our 
nation.  Now, Specialist Darby did not leak the 
photos of this disgrace up the chain of command 
or to the Army Inspector General as our 
whistleblower law envisions.  Instead, he leaked 
it straight to the Army Criminal Investigative 
Division, and this path is not strictly what our 
whistleblower laws allow.  Was Spc. Joseph Darby 
doing his duty as an honorable soldier when he 
exposed the torture and abuse at Abu Ghraib?  Or 
was he just trying to damage the United 
States?  Your verdict on Bradley Manning could 
reopen that question, and answer it anew.

If you convict Bradley Manning, you will also 
potentially be convicting the father of Army 
Specialist Adam Winfield.  In February 2010, 
Winfield 
<http://www.washingtonpost.com/wp-dyn/content/article/2010/09/18/AR2010091803935_2.html?sid=ST2010091803942>informed 
his father, Christopher Winfield, a marine 
veteran, via Facebook, of a homicidal “Kill Team” 
at Forward Operating Base Ramrod in Kandahar 
Province, Afghanistan, that was murdering 
civilians.  Winfield’s father tried to sound the 
alarm 
<http://www.washingtonpost.com/wp-dyn/content/article/2010/09/18/AR2010091803935_2.html?sid=ST2010091803942>via 
phone calls to the Army Inspector General’s 
24-hour hotline, to Senator Bill Nelson, and even 
to members of his son’s command unit in Fort Lewis.

Both father and son went beyond the “proper” 
channels to stop the murder of innocent Afghan 
civilians.  Spc. Winfield is now on trial for 
possible complicity in the “kill team” murders, 
but no charges have been filed against his 
father.  Tell me, then: Is Winfield’s father 
guilty of damaging his country because he tried 
to warn the Army about a homicidal “kill team” in 
the ranks?  Whether you like it or not, whether 
you care to or not, this is something you will 
decide when you render your judgment on Bradley Manning’s actions.

The Espionage Charges

The most outlandish entries on the 
<http://www.bradleymanning.org/3163/charge-sheet-html/>overachieving 
charge sheet are those stemming from the 
<http://en.wikipedia.org/wiki/Espionage_Act_of_1917>Espionage 
Act of 1917. After all, Pfc. Manning is just the 
fifth American in 94 years to be charged under 
this archaic law with leaking government 
documents.  (Of the five, only one has been convicted.)

The Espionage Act was never intended to be used 
in this way, as an extra punishment for citizens 
who disclose classified material, and that is why 
the government only carts it out when its case is exceptionally desperate.

In order for Espionage Act charges to stick, it 
is required that Pfc. Manning had the conscious 
intent -- take note of that crucial phrase -- to 
damage the United States or aid a foreign nation 
with his disclosures.  Not surprisingly, given 
this, you are going to hear the prosecution spare 
no effort to portray the release of these cables 
as the gravest blow to America’s place in the world since Pearl Harbor.

I hope you’ll take this with more than a grain of 
salt.  For where is the staggering fallout from 
all the supposed bombshells in these leaked 
documents?  Months after the release of the State 
Department cables, not a single American 
ambassador has been recalled.  Secretary of 
Defense Robert Gates, who commands far more 
<http://www.whitehouse.gov/omb/factsheet_department_defense/>budget 
and power than the 
<http://www.state.gov/s/d/rm/rls/bib/2010/index.htm>Secretary 
of State, publicly insists that these leaks -- 
the Iraq War logs, the Afghan War Logs, and the 
diplomatic cables -- 
<http://voices.washingtonpost.com/checkpoint-washington/2010/11/the_obama_administration_has_w.html>have 
not done any major harm.  “Now I've heard the 
impact of these releases on our foreign policy 
described as a meltdown, as a game-changer and so 
on,” said Gates. “I think those descriptions are 
fairly significantly overwrought.”  Significantly 
overwrought?  "Every other government in the 
world knows the United States government leaks 
like a sieve,” he added, “and it has for a long time."

So what happened to the biggest blow to American 
prestige since the 1968 Tet Offensive in 
Vietnam?  And keep in mind that the Secretary of 
Defense is by no means the only official 
pooh-poohing the hype about the WikiLeaks 
apocalypse.  One former head of policy planning 
at the State Department looked at the cables, 
shrugged, and said that the documents 
<http://www.foreignpolicy.com/articles/2010/11/30/10_conversations_that_just_got_a_little_more_awkward>hold 
“little news,” and that they are “unlikely to do 
long-term damage.”  A senior Pentagon 
spokesperson, Colonel David Lapan, confessed to 
reporters last September that there is 
<http://blogs.mcclatchydc.com/nationalsecurity/2010/10/waiting-for-wikileaks.html>zero 
evidence any of the Afghan informers named in the 
leaked documents have been injured by Taliban 
reprisals.  Tell me, where is the Armageddon that 
this 23-year-old private has supposedly loosed on our American world?

Of course, there’s no denying that some members 
of our foreign policy elite have been mightily 
embarrassed by the State Department cables.  Good.  They deserve it.

Their fleeting embarrassment is nothing compared 
to the shame they have brought down on our 
country with their foolish deeds over the past 
decade, actions that range from the reckless and 
incompetent to the downright criminal.  It’s no 
secret that America’s standing in the world has 
been severely damaged in these years, but ask 
yourself: Is this because of recent disclosures 
of civilian deaths and war crimes --most of which 
are surprising only to Americans -- along with diplomatic tittle-tattle?

I suggest to you that the damage to our nation, 
which couldn’t be more real, has come not from 
the disclosures of a young private, but from our 
foreign policy elite’s long pattern of foolish 
and destructive actions.  After all, the invasion 
and occupation of Iraq have cost 
<http://icasualties.org/Iraq/index.aspx>rivers of 
blood.  The price tag for our current foreign 
wars has now officially 
<http://costofwar.com/en/>soared above the 
trillion-dollar mark (and few doubt that, in the 
end, the real cost will run into the trillions of 
dollars).  And don’t forget, the invasion of Iraq 
has inspired new waves of hatred and distrust of 
our country overseas, and 
<http://motherjones.com/politics/2007/03/iraq-101-iraq-effect-war-iraq-and-its-impact-war-terrorism-pg-1>has 
provided an adrenaline boost for Islamic terrorists.

Needless to say, our political, military, and 
media elites have not lined up to take 
responsibility for this series of self-inflicted 
wounds.  Before they try to pin a nonexistent 
catastrophe on Pfc. Manning, they ought to take a 
long, hard look in the mirror and think about the 
real damage they’ve done to our nation, the 
world, and not least the 
<http://www.washingtonpost.com/wp-dyn/content/article/2005/05/02/AR2005050201504.html>overstretched, 
overstrained 
<http://www.usatoday.com/news/military/2010-08-23-1Aforthood23_CV_N.htm>U.S. 
military.

Just imagine: if only someone like Bradley 
Manning had leaked conclusive documentation about 
Saddam Hussein’s supposedly deadly but 
nonexistent arsenal of weapons of mass 
destruction, the excuse for our invasion of 
Iraq.  Such a disclosure would have profoundly 
embarrassed Washington’s foreign policy elite and 
in the atmosphere of early 2003, the media would 
undoubtedly have called for that whistleblower’s 
head, just as they’re doing now.

Such a leak, however, would have done a powerful 
load of good for our nation. Four thousand four 
hundred and thirty-six American soldiers would 
not be 
<http://icasualties.org/Iraq/index.aspx>dead and 
thousands more would not be maimed, wounded, or 
suffering from PTSD.  At the very least, 
<http://www.iraqbodycount.org/>more than 100,000, 
and probably 
<http://www.nytimes.com/2008/01/10/world/middleeast/10casualties.html>hundreds 
of thousands, of Iraqi civilians would still be 
living.  These are the consequences of 
policy-making by a secretive government that 
wants the American people to know nothing, and a 
media that is either 
<http://www.pbs.org/moyers/journal/btw/watch.html>unable 
or unwilling to do its job and report on facts, not government spin.

You all are old enough to have noticed that the 
health of our republic and the reputations of our 
ruling elites are not one and the same.  In the 
best of times, they overlap.   The past 10 years 
have not been the best of times.  Those elites 
have led us into disaster after disaster, 
imperiling our already breached national 
security, straining our ruinous finances, and 
tearing to shreds our moral standing in the 
world.  Don’t try to blame this state of affairs on Private Bradley Manning.

The Nuremberg Principles Mean Something in Our Courts

Our soldiers have a solemn duty not to obey 
illegal orders, and Pfc. Manning upheld this 
duty.  General Peter Pace’s statement on a 
soldier’s overriding duty to stop the torture and 
abuse of prisoners, whatever his or her orders, 
is not just high-minded public relations; it’s 
the law of the land.  More than 50 years ago, 
<http://faculty.ed.umuc.edu/%7Enstanton/FM27-10.htm>U.S. 
Army Field Manual 27-10 incorporated the 
<http://nuclearfiles.org/menu/library/treaties/nuremberg/trty_nuremberg-principles_1950.htm>Nuremberg 
Principles, among them Principle IV: “The fact 
that a person acted pursuant to an 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.”  This remains the law of our land and of our armed forces, too.

I suspect the prosecution will have other 
ideas.  They will tell you that the Nuremberg 
Principles are great stuff for commencement 
addresses, but don’t actually mean anything in 
practical terms. They will tell you that the 
Nuremberg Principles are of use only to the Lisa 
Simpsons of the human-rights industry.

But know this: some 
<http://en.wikipedia.org/wiki/World_War_II_casualties>400,000 
of your fellow soldiers died in the Second World 
War for the establishment of those 
principles.  For that reason alone, they are 
something that you in the military ought to treat with the utmost seriousness.

And if the judge or prosecutor should tell you 
that the Nuremberg Principles don’t mean a thing 
in our courts, they would be flat wrong.  Courts 
have taken the Nuremberg Principles to heart 
before, and more and more have done so in the 
past few years. In 2005, for example, Judge 
Lieutenant Commander Robert Klant 
<http://www.democracynow.org/2005/5/13/war_resister_pablo_paredes_wins_surprise>took 
note of the Nuremberg principles in a sentencing 
hearing for Pablo Paredes, a Navy Petty Officer 
Third Class who refused redeployment to Iraq, and 
whose punishment was subsequently minimized.

Similarly, at his court martial in 2009, Sergeant 
Matthis Chiroux 
<http://www.huffingtonpost.com/matthis-chiroux/refusing-to-redeploy-my-s_b_191156.html>justified 
his refusal to redeploy to a war that he believed 
violated both national and international law, and 
was backed up by expert testimony on the 
Nuremberg Principles.  The court martial granted 
Sgt. Chiroux a general discharge.

A long line of Supreme Court cases, from 
<http://supreme.justia.com/us/54/115/>Mitchell v. 
Harmony in 1851 all the way back to Little v. 
Barreme in 1804, established that soldiers have a 
duty not to follow illegal orders.  In short, it 
is a matter of record and established precedent 
that these Nuremberg Principles have meant 
something in our courts. Yours will not be the 
first court martial to apply these principles, 
fought for and won with American blood, nor will it be the last.

Whistleblowers Are Patriots Who Sacrifice for Their Country

Whistleblowers who attempt to rectify the 
disastrous policies of their nation are not 
criminals.  They are patriots, and eventually are 
recognized as such.  Bradley Manning is by no 
means the first American to serve his country in such a way.

Today, <http://www.ellsberg.net/>Daniel Ellsberg 
is famous as the leaker of the 
<http://en.wikipedia.org/wiki/Pentagon_Papers>Pentagon 
Papers, a secret internal history ordered up by 
Secretary of Defense Robert McNamara himself that 
candidly recounted how a series of 
administrations systematically lied to the nation 
about the planning and prosecution of the Vietnam 
War.  Ellsberg’s massive leak of these documents 
helped end that war and bring down a criminal 
administration.  How criminal?  Midway through 
Ellsberg’s trial in 1973, the Nixon 
administration 
<http://en.wikipedia.org/wiki/William_Matthew_Byrne,_Jr.>offered 
the judge overseeing his treason trial the 
directorship of the FBI in an implicit quid pro 
quo, a maneuver of such brazen corruption as to 
shame any banana republic.  The judge dismissed 
all the government’s charges with prejudice and 
now Daniel Ellsberg is a national hero.

Those born after a certain date may be forgiven 
for assuming that Ellsberg was some long-haired 
subversive of an “anti-American” stripe.  In 
fact, he had been, like Bradley Manning, a model soldier.

At the 
<http://en.wikipedia.org/wiki/United_States_Marine_Corps>Marine 
Corps 
<http://en.wikipedia.org/wiki/Basic_School>Basic 
School in 
<http://en.wikipedia.org/wiki/Quantico,_Virginia>Quantico, 
Virginia, Ellsberg 
<http://en.wikipedia.org/wiki/Daniel_Ellsberg#Early_life_and_career>graduated 
first in a class of some 1,100 lieutenants. He 
served as a platoon leader and rifle company 
commander in the Marine 2nd Infantry Division for 
three years, and 
<http://books.google.com/books?id=bQl4LRTmkx0C&printsec=frontcover&dq=daniel+ellsberg+secrets&source=bl&ots=DBqLVi6kBC&sig=q31KwR8dVxcEakL1mgE-LnyAzUU&hl=en&ei=94xJTYGaCZOdgQeRu6AP&sa=X&oi=book_result&ct=result&resnum=8&ved=0CFEQ6AEwBw#v=onepage&q&f=false>deferred 
his graduate studies so he could remain on active 
duty with his battalion during the Suez Crisis of 
1956.   (You will note that deferring graduate 
school in order to stay on active military duty 
is the exact opposite of what 
<http://en.wikipedia.org/wiki/Dick_Cheney#Early_life_and_education>so 
many of our recent, and 
<http://www.washingtontimes.com/news/2008/sep/01/bidens-draft-deferments-equal-cheneys-during-vietn/>current, 
national leaders did in those decades.)  After 
satisfying his Reserve Officer commitment, 
Ellsberg was discharged from the Corps as a first 
lieutenant, and leaving the military went on to a 
distinguished career in government.

Daniel Ellsberg was a model Marine, and later a 
model citizen.  His courageous act of leaking 
classified information was only one more episode 
in a consistent record of patriotic 
service.  When Ellsberg leaked the Pentagon 
Papers he did so out of the profoundest sense of 
duty, knowing full well, just like Bradley 
Manning today, that he might spend the rest of his life in jail.

Ellsberg calls Pfc. Manning 
<http://en.wikipedia.org/wiki/Daniel_Ellsberg#Later_activism_and_views>his 
hero and he is a 
<http://www.bbc.co.uk/news/world-11879951>tireless 
defender of the brave Army private our government has locked away in solitary.

Vandals trash things without a care in their 
hearts, but real patriots like former Lt. 
Ellsberg and Pfc. Manning do their duty knowing 
that the privilege of living in a free society does not always come cheap.

“Frankly and in the Public View”: The American Tradition of Diplomacy

Today, Ellsberg himself is lionized, even by the 
U.S. government, as a national hero.  The State 
Department recently put together a traveling 
roadshow of American documentary films to screen 
abroad, and 
<http://www.forbes.com/feeds/ap/2011/01/15/general-us-us-wikileaks-state-department_8258541.html>front 
and center among them is an 
<http://www.mostdangerousman.org/>admiring movie 
about Ellsberg and the Pentagon Papers.  But then 
it is only appropriate that the government 
recognize Ellsberg and his once-controversial 
disclosures as part and parcel of the American tradition.

After all, demands for more open and transparent 
diplomacy are as American as baseball and Hank 
Williams.  World War I-era President Woodrow 
Wilson himself insisted on the abolition of 
secret treaties as part of his 
<http://en.wikipedia.org/wiki/Fourteen_Points>14 
points for the League of Nations; in fact, it’s 
the very first point: “Open 
<http://en.wikipedia.org/wiki/Peace_treaty>covenants 
of peace, openly arrived at, after which there 
shall be no 
<http://en.wikipedia.org/wiki/Secret_treaty>private 
international understandings of any kind but 
<http://en.wikipedia.org/wiki/Diplomacy>diplomacy 
shall proceed always frankly and in the public view.”

How can foreign policy be democratic if the most 
serious decisions and facts -- alliances, death 
tolls, assessments of the leaders and governments 
we are bankrolling with our tax dollars -- are 
all kept as official secrets?  The 
<http://en.wikipedia.org/wiki/Bricker_Amendment>“Bricker 
Amendment” was an attempt by congressional 
Republicans in the 1950s to require Senate 
approval of U.S. treaties, in large part to open 
up public debate about foreign affairs.  The late 
Senator Daniel Patrick Moynihan, a Democrat who 
served as representative to the U.N. for 
Republican President Richard Nixon, was also a 
<http://books.google.com/books?id=FWq-5a5tqH0C&pg=PA171&lpg=PA171&dq=moynihan+overclassification&source=bl&ots=Z-zAYYBODM&sig=2P4LrNmMDTiiKQ_TWGuCy4dd7kE&hl=en&ei=1JBJTeHeM87pgAeR5sHzDw&sa=X&oi=book_result&ct=result&resnum=1&ved=0CBMQ6AEwAA#v=onepage&q&f=false>severe 
critic of government secrecy and the habitual 
<http://www.fas.org/blog/secrecy/2008/09/overclassification.html>over-classification 
of state documents. These American statesmen knew 
that if foreign policy is crafted in secret, 
without the oxygen and sunlight of vigorous 
public debate, disaster and dysfunction would result.

For the past 10 years, we have had exactly such 
disaster and dysfunction as our foreign 
policy.  Our leaders have plunged us into a dark 
world of secrecy and lies.  Tell me: Is this Private Bradley Manning’s fault?

Let me be clear as I bring this opening statement 
to a close: for all the complexities this case 
holds, your job will in the end prove a simple 
and basic one.  It’s your task not to let our 
leaders, or the prosecution, pin the horrendous 
state of affairs into which this country has been 
thrown on Pfc. Manning.  I am confident that you 
will see him for the patriot he is, a young man 
with a moral backbone whose goal was not 
self-aggrandizement or profit or even attention 
and glory.  His urge was to shine a bright light 
on his own country’s wrongdoing and, in that way, 
bring it, bring us, back to our nobler national traditions.

It is Pfc. Manning, not our fearless national 
leaders, who has sacrificed much to restore the 
rule of law and a minimal level of public 
oversight to American foreign and military 
policy. “Frankly and in the public view”: this 
once would have been called a reasonable 
description of the American character, something 
that set us apart from the Austro-Hungarian 
Empire, Otto von Bismarck’s Prussia, or Imperial 
Japan.  Whether our government has any 
responsibility to conduct its affairs frankly and 
in the public view in 2011 and beyond -- this is 
something else you will decide in your judgment on Pfc. Manning.

As soldiers, you know well that most Americans 
have insulated themselves from the last decade’s 
foreign-policy disasters.  Even as we spend a 
trillion dollars on foreign wars, our taxes are 
cut.   If you’re making decent money, the odds 
are it’s not your kids, grandchildren, brothers, 
or sisters who are off fighting, killing, and 
dying in our foreign wars.  Most Americans, 
thanks in part to the media, have little idea of 
what you and your peers have lived through, the weight you have shouldered.

This is not true of Pfc. Bradley Manning.  He 
came face to face with this disaster.   He saw, 
and participated in, the roundup of Iraqi 
civilians to be tortured by their own national 
police force.  Tell me honestly: Was this what 
Operation Iraqi Freedom was supposed to 
accomplish?  Is this why you, his jury of peers, enlisted in the military?

Pfc. Manning saw this misery and rampant 
illegality with his own two eyes, and then, 
online, he discovered more of the same -- much, 
much more -- and he did something about it, 
<http://firedoglake.com/merged-manning-lamo-chat-logs/>knowing 
full well the penalty. “I wouldn’t mind going to 
prison for the rest of my life, or being executed 
so much, if it wasn’t for the possibility of 
having pictures of me [
] plastered all over the 
world press,” he confided to the informant who 
betrayed him.  Manning knew the stakes and the 
risks when he leaked these documents, but still 
he loyally performed his duty, both to the United 
States Army and to his country.

As one of Manning’s childhood friends from 
Crescent, Oklahoma, has 
<http://thislandpress.com/09/23/2010/private-manning-and-the-making-of-wikileaks-2/>testified, 
“He wanted to serve his country.”  It’s up to you to decide whether he did.

You have a duty as a fully informed jury of free 
citizens. You are not an assortment of rubber 
stamps pulled out of a judge’s desk drawer.  You 
are as important a part of this court as the 
judge, prosecutor, and the accused himself.

Whichever way you decide in your verdict, you 
will not face the consequences Bradley Manning 
already endures, but your judgment will have 
great consequences, not just for him, but for the 
honor and future of the country you have taken an oath to serve.

Now, go and do your duty.

Chase Madar is an attorney in New York and a 
member of the National Lawyers Guild.  He writes 
for 
<http://www.tomdispatch.com/post/175316/tomgram%3A_chase_madar,_all-american_gitmo/>TomDispatch, 
the American Conservative magazine, Le Monde 
Diplomatique, and the London Review of Books. (To 
listen to Timothy MacBain’s latest TomCast video 
interview in which Chase Madar explores Manning’s 
case and his defense, click 
<http://tomdispatch.blogspot.com/2011/02/in-defense-of-pfc-manning.html>here, 
or download it to your iPod 
<http://click.linksynergy.com/fs-bin/click?id=j0SS4Al/iVI&subid=&offerid=146261.1&type=10&tmpid=5573&RD_PARM1=http%3A%2F%2Fitunes.apple.com%2Fus%2Fpodcast%2Ftomcast-from-tomdispatch-com%2Fid357095817>here.)

Copyright 2011 Chase Madar



© 2011 TomDispatch. All rights reserved.
View this story online at: http://www.tomdispatch.com/blog/175352/





Freedom Archives
522 Valencia Street
San Francisco, CA 94110

415 863-9977

www.Freedomarchives.org  
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://freedomarchives.org/pipermail/ppnews_freedomarchives.org/attachments/20110210/59cecaef/attachment.htm>