Bradley Manning and the Rule of Law

The case of Private Bradley Manning, the whistleblower accused of releasing hundreds of thousands of documents to WikiLeaks, raises legal issues about pre-trial detention, freedom of speech, and the assumption of innocence before conviction. A high point in the application of the rule of law to war came in the Nuremberg trials when leaders in Germany were held accountable for World War II atrocities. Justice Robert Jackson, who served as the chief prosecutor in the Nuremberg trials while on leave from the U.S. Supreme Court, said, "If certain acts of violation of treaties are crimes, they are crimes whether the United States does them or whether Germany does them, and we are not prepared to lay down a rule of criminal conduct against others which we would not be willing to have invoked against us."

A January rally in support of Manning at the Virginia base where he had been held in solitary confinement for more than six months

One of the key outcomes of the Nuremberg trials was that people who commit war crimes or crimes against humanity will be held accountable even if they were following orders. This is known as Nuremberg Principle IV which states: "The fact that a person acted pursuant to order of his [sic] Government or of a superior does not relieve him from responsibility under international law provided a moral choice was in fact possible to him." The Nuremberg principles were enshrined in a series of treaties.

What is a person who does not want to participate in war crimes or hide war crimes supposed to do when he or she sees evidence of them? If Manning hid evidence, would he be complicit in the crimes he was covering up and be liable as a co-conspirator? These were questions that Bradley Manning wrestled with. According to unverified chat logs, Manning, talking with hacker Adrian Lamo, asked: "Hypothetical question, if you had free reign over classified networks for long periods of time, say 8-9 months, and you saw incredible things, awful things, things that belonged in the public domain and not on some server stored in a dark room in Washington, DC…what would you do?"

In Iraq, Manning was ordered to round up and hand over Iraqi civilians to America's new Iraqi allies, who he could see were then torturing them with electric drills and other implements. Manning questioned his orders and brought his concerns to the chain of command. He pointed to a specific instance where 15 detainees were arrested and tortured for printing "anti-Iraqi literature." He found that the paper in question was merely a scholarly critique of corruption in the government asking "Where did the money go?"

He brought this to his commander who told him to "shut up" and keep working to find more detainees. Manning realized he "was actively involved in something that I was completely against…"

He wrestled with the question of what to do. Manning told Lamo that he hoped the publication of the documents and videos would spur "worldwide discussion, debates, and reform." He went on to say, "I want people to see the truth…regardless of who they are…because without information, you cannot make informed decisions as a public." The command structure would not listen, so Manning went beyond them to the people who are supposed to control the military in a democratic republic. He wanted Americans to know the truth.

In the chat logs, Lamo asked Manning why he did not sell the documents to a foreign power. Manning explained: "It belongs in the public domain—information should be free—it belongs in the public domain because another state would just take advantage of the information...try and get some edge. If it's out in the open…it should be a public good." These are not the words of a traitor or someone out to hurt the United States. These are the words of someone trying to improve the United States, trying to get the country to live up to its highest ideals.

So far, Manning is charged with three counts of unlawfully transferring confidential material to a non-secure computer, i.e., leaking state secrets. He faces up to 52 years if convicted and it is likely that he will be charged with additional offenses. The charges against Manning end by describing his "conduct [as] being prejudicial to good order and discipline in the armed forces and being of a nature to bring discredit upon the armed forces."

Well, what exactly did the materials Manning allegedly leak show?

The video that is the focus of these initial charges is known as the "Collateral Murder" video. It shows American soldiers in an Apache helicopter gunning down a group of innocent people—including 2 Reuters employees, a photojournalist and his driver—killing 16 and sending 2 children to the hospital. The video, which has been viewed by millions, shows initial blasts killing and wounding people. U.S. forces watch as a van pulls up to evacuate the wounded. The soldiers again open fire from the helicopter, killing more people. A crew member is heard saying, "Oh yeah, look at those dead bastards." Journalist Rick Rowley reported that a man who had crawled out of the van was still alive when a tank drove over him, cutting him in half.

Marjorie Cohn, who teaches criminal law and procedure, evidence, and international human rights law at the Thomas Jefferson School of Law, describes multiple war crimes from this single video. First, targeting and killing civilians who do not pose a threat violated the Geneva Conventions. Second, when soldiers attacked the van attempting to rescue the wounded, they are violating the Geneva Conventions which allow the rescue of wounded. Third, the tank rolling over the wounded man is a war crime. Even if he were already dead, disrespecting a body violates the Geneva Conventions.

When Manning saw these war crimes, what should he have done? Should he have covered up the evidence? Should he try to go up the chain of command—a strategy he had already tried unsuccessfully? If Manning did what he is accused of, he did the only thing that could stop these crimes from continuing.

Other documents Manning allegedly provided to WikiLeaks showed the 2009 Granai airstrike in Afghanistan, in which as many as 140 civilians were killed in a U.S. attack. The Australian reported that the airstrike resulted in "one of the highest civilian death tolls from Western military action since foreign forces invaded Afghanistan in 2001." The Afghan government has said that around 140 civilians were killed, of which 93 were children (the youngest 8 days old), 25 were women, and 22 were males. The U.S. military had said that 20-30 civilians were killed along with 60-65 insurgents.

Manning allegedly released hundreds of thousands of documents to WikiLeaks which, working with traditional media outlets, has released a small percentage of them. (He left it to journalists to decide what was appropriate for release.) The small percentage of documents released show widespread and systemic abuses in U.S. foreign policy and in the conduct of wars. WikiLeaks documents, including the Iraq and Afghanistan War Logs and the diplomatic cables, show that:

·     U.S. troops killed civilians without cause or concern and then covered it up (through multiple other examples), including killing reporters

·     The CIA is fighting an undeclared and unauthorized war in Pakistan with Blackwater mercenaries

·     Afghanistan is rife with corruption and drug dealing

·     The Pakistan military and intelligence agencies aid Al Qaeda and the Taliban

·     The U.S. looks the other way when governments it puts in power torture

·     State Department foreign service officers violated laws to spy on diplomats with marching orders drawn up by the CIA

·     Israel, with U.S. knowledge, is preparing for a widespread war in the Middle East, is keeping the Gaza economy at the brink of collapse, and is engaging in widespread corruption at border checkpoints

Experience inside the U.S. military turned a young man from Oklahoma who believed in American freedom and that the United States played a positive role in the world, to someone who questioned the leadership of the nation, its foreign policy, and its conduct of wars.

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Kevin Zeese is executive director of Voters for Peace, a member of the Bradley Manning Support Network, and WikiLeaksIsDemocracy.org.