The central intuition behind our concept of justice is that like cases should be treated alike. John Rawls in his immensely influential book A Theory of Justice states that justice is “the first virtue” of social institutions; adherence to the requirements of justice is a test of such institutions. When the requirements of justice are blatantly unmet, that is, when seemingly like cases are treated radically differently, the fissures within an institutions and the usually hidden power relations are exposed. Such an illustrative instance of injustice has occurred in the cases of General Stanley McChrystal and Private Bradley Manning, both of whom released classified military information to the public for the purpose of influencing public policy. The actions of various institutions—the military, the government, and the media— to these two cases provide an insight into their respective responses to stress and an illustration of the state of power relations in our society in the early years of the twenty-first century.
By 2009, The US military had remade itself in the wake of the debacle in Vietnam. The all-volunteer, professional military was a wealthy, powerful institution with a huge budget and nation-wide economic influence; it was technologically sophisticated, politically well-connected, media-savvy, and very in-the-news as the country prosecuted two wars in the Muslim world. It was the most respected institution in the country of weakening social and political ties. The officer class had in many cases become soldier-intellectuals, educated not just in matters of war but also in history, governance, economics, and marketing. The military was by this time not simply an instrument of national defense but among the most important components of the state apparatus, almost a fourth branch of the government. The military had significant effective power, even though it did not at most times actively seek it; the political class was in many cases all too willing to grant it. At the same time, the institution of the military at the beginning of 2009 was also under potential stress, and the country was potentially at a pivotal moment as Barack Obama succeeded George W. Bush as President.
Barack Obama had fairly handily defeated one of the most militaristic American politicians in the election of 2008; he had been elected largely because of his opposition to the war in Iraq and pledged to bring it to a conclusion, and although he supported the war in Afghanistan, it was clear as Obama assumed office that that war was going badly and that the country (especially the 99.5% of the country that was not directly involved in prosecuting the wars) was not so much becoming tired of our military involvements as becoming bored with them. The wars barely figured in the election that was dominated by personalities and economic issues. The new President also promised to change the way Washington works, Washington in this case including the military whether the young President knew it or not. President Obama had a national focus; he was concerned primarily with economic and social conditions in this country, and his international approach was conciliatory and cooperative, unlike the martial and confrontational approach of his predecessor. Obama also knew little about the military, and one of his first tests was to be a confrontation over military policy in Afghanistan.
The McChrystal Affair
As the new President approached forming a policy for Afghanistan, he charged various parts of the government with making recommendations for the war, which he as Commander in Chief would consider in developing his policy. He stated that he would not make a decision until he had “absolute clarity about what the strategy is going to be.” It was clear that some in his administration, especially Vice President Biden, favored a slow, steady withdrawal of forces and an end to military involvement.
In June, General Stanley McChrystal, who had been chosen by President Obama as the top US commander in Afghanistan, was requested by Secretary of Defense Robert Gates to prepare a multidisciplinary assessment of the situation in Afghanistan. The General submitted his assessment, dated August 30, and on September 21 of that year, the leaked report was made public in a slightly redacted form, along with an article by Bob Woodward in The Washington Post. The 66-page report (http://media.washingtonpost.com/wp-srv/politics/documents/Assessment_Redacted_092109.pdf?hpid_topnews) and the article by Woodward titled “McChrystal: More Forces or ‘Mission Failure’” (http://www.washingtonpost.com/wp-dyn/content/article/2009/09/20/AR2009092002920.html) are extraordinary documents, and the response to the leaked, classified document bearing on war strategy and personnel requirements is instructive.
The report, which was written with the assistance of some leading neoconservative military analysts, not only recommends an increase of some 30,000 to 40,000 troops in Afghanistan, it also prescribes a reorientation of military strategy and the acceptance of counterinsurgency as the official policy of US military operations. The report recommends population protection as the purpose of military action, with an increased awareness of local political, economic, and cultural affairs as a method to counteract the three main insurgent groups that the General claims are competing with the international force for the allegiance of the Afghan people.
(An aside on the ambiguities of international military operations: in the PBS Frontline program “Obama’s War,” the following interaction occurs: A US Army Major approaches an Iraqi farmer and asks “Have you seen any foreign fighters?” the farmer replies “Yes, you.”)
The General also has a four-page section on overhauling the Afghan prison system, which the report claims has become “a sanctuary and base to conduct lethal operations” against coalition forces. The report is a call to armed nation-building, and because it does not include a timeline for the operation, potentially a call for perpetual war. Many of the young members of the military have known their country as a nation at war for half their lives.
The report claims that “a perception that our resolve is uncertain makes Afghans reluctant to align with us against the insurgents”; it also claims that failure to provide adequate resources “risks a longer conflict, greater casualties, higher overall costs, and ultimately a critical loss of political support…[and]…mission failure.” Rejecting the plan, according to the General, is tantamount to accepting defeat, empowering violent jihadism, and encouraging future attacks on the United States. The war in Afghanistan thus became what Andrew Bacevich, professor of international relations, West Point graduate, retired colonel, and father of a son killed in the war in Iraq, described as a proxy war for the control of the narrative within the United States of the purpose of US international strategy (http://www.boston.com/bostonglobe/editorial_opinion/oped/articles/2009/10/11/afghanistan___the_proxy_war/)
That the assessment was made public at the time the President was evaluating strategy was an overtly political act intended not to guide policy but to make it. It was a challenge to the Commander in Chief, a threat to civilian control of the armed forces, and perhaps an offense against “good order and discipline,” an offense covered by article 134 of the Uniform Code of Military Justice. It seems to have been assumed in Washington that the General himself or his staff with his approval leaked the assessment. Representative Dennis Kucinich and Scott Ritter, former UN weapons inspector in Iraq, called for the General to be fired for insubordination. However, General McChrystal has shown (until recently at least) to be a smart, tough, resourceful infighter, with a deep pedigree and training for the fray.
General Stanley McChrystal is the son and grandson of army officers; his four siblings were either in the military or married to military officers. He is a graduate of West Point, was trained in the special forces, served as spokesman for the Army in Iraq and delivered the televised Pentagon daily briefings, and most tellingly was Commander of Joint Special Operations Command (JSOC), described by Newsweek magazine as “the most secretive force in the US Army.” The General has worked on what Vice President Cheney called “the dark side, if you will.” He is also a charismatic man, an ascetic, a dedicated runner whose iPod playlist consists of recorded books on history, intellectually curious, and whose staff is intensely loyal. Stanley McChrystal is the very model of the modern Army General. While Commander of JSOC, McChrystal’s forces were involved in the capture of Saddam Hussein and in the killing of Abu Musab al-Zarqawi, leader of Al-Qaeda in Iraq. The General also led a joint unit of JSOC and CIA paramilitary forces that constituted a “secret killing program in Iraq,” a program first reported as “highly classified information” by Bob Woodward in an interview on 60 Minutes while publicizing his 2008 book The War Within (http://www.youtube.com/watch?v=ns_3VpOEkzM&playnext=1&list=PLFD4D64253118F311). He also, while still in Iraq was involved in the cover-up of the friendly fire death of former professional football player turned Army Ranger Pat Tillman in 2004.
The General had good relations with “embedded” military reporters from the national press; however, in 2010 he spoke with a freelance journalist from Rolling Stone magazine and the resulting article “The Runaway General” in which McChrystal and some of his staff speak disparaging about civilian government officials, especially Vice President Biden, led to his being forced to resign his command in Afghanistan and soon thereafter to resign from the Army after 34 years. The response of the establishment media to the Rolling Stone article and its author is illustrative of the defensive response of an institution under stress, in the case of reporters the stress of potentially losing their largest asset—access to the powerful and the decision-makers. The author of the article, Michael Hastings, was severely criticized, accused of fabricating some of his article, and even had his patriotism questioned by some reporters. Many reporters on military affairs are like sports reporters and business reporters: they are “fans” first; they pull for the home team, and they have their favorite players. Glenn Greenwald, a constitutional lawyer and blogger for Salon.com (and who will figure further as a bright light in this story of Manning and McChrystal) wrote:
The New York Times’ John Burns fretted that the article “has impacted, and will impact so adversely, on what had been pretty good military/media relations” and accused Hastings of violating ”a kind of trust” which war reporters ”build up” with war Generals (http://www.salon.com/news/opinion/glenn_greenwald/?page=8)
Lara Logan foreign policy reporter for CBS News stated “Michael Hastings has never served his country the way McChrystal has.” The “Village”—that collection of members of the nonadversarial media, political hangers-on, influence-peddlers and operators, think-tankers, tipsters, and “deep-background” sources— had rallied round its own. Greenwald in his post on the military reporters referred to John Parker, a former military reporter and now at the University of Maryland Center for Specialized Reporting, who cites the danger to military reporters of being captured by the military sensibility by “interacting so closely with the most powerfully romanticized force of violence in the history of mankind—and the admirable and seductive allure of the sharp, amazingly focused demeanor of highly trained military minds.”
In addition to having a compliant press, General McChrystal in the case of the leak of war recommendations (which was much more serious than the off-the-cuff snears and jokes about politicians that got him canned) chose his tools wisely. The Washington Post and Bob Woodward are the establishment writ large. The newspaper and its iconic reporter have journo-cred in spades: the greatest piece of investigative journalism in the history of the world; the resignation of a President; Woodward immortalized in film by Robert Redford. As mentioned above, Bob Woodward had previously written about the General and his “dark-side” (if you will) operations in Iraq. Relationships had been formed; favors done; backs scratched. Woodward with his article in the Post set the tone and established the narrative in his characteristic leaden prose; Woodward’s purpose at times seems not to inform but to bore, to take the juice out of juicy things.
Others moved to the defense of the General and of his mission. Senator Dianne Feinstein, who passes in twenty-first century America for a liberal and who chairs the Senate Intelligence Committee said that it would be very difficult for the President to deny the request his Commander in the field’s request for 40,000 more troops and an expanded mission (we will meet Senator Feinstein later in this narrative).
The McChrystal leak affair resolved without repercussions (at least for General McChrystal). In December 2009, President Obama declared that “We are a nation at war” and ordered a “surge’ in Afghanistan, increasing troop strength (although by less than the 40,000 that the General requested) and at the same time announced a scheduled withdrawal because “the nation I’m most interested in building is our own.” Counterinsurgency became the principal military doctrine of American interventionism. General McChrystal had the policy he wanted, the troops he wanted, and the job he wanted; the war in Afghanistan was now President Obama’s war but it would be waged according to the principles of General McChrystal. The new President in his first confrontation with the military had capitulated (an outcome that the President’s supporters would come increasingly to expect), and early in his administration, he came to seem already morally adrift. Professor Bacevich in a rather sad article in The New Republic called “Non-Believer” contrasted President George W. Bush, rather foolish and feckless, but resolute in his belief in his mission with President Obama, intelligent, competent, but pursuing a policy that he could never fully believe in. (http://www.tnr.com/blog/foreign-policy/76091/non-believer).
The Manning Affair
In October 2009, as the minor flap over the McChrystal leak continued to provide entertainment in Washington, Private Bradley Manning arrived in Iraq as part of the 10th Mountain Division based near Baghdad. Private Manning was trained as an intelligence analyst, but he was not a model soldier and had had a troubled two-year military career: he had been reprimanded in training for posting messages on YouTube; in Iraq, he was again reprimanded and reduced in rank from Specialist to Private First Class for assaulting another soldier. In May 2010, when Private Manning began a fateful e-mail exchange with another hacker, Adrian Lamo, he introduced himself as “an army intelligence analyst, deployed to eastern Baghdad, pending discharge for ‘adjustment disorder.’” A small slight, but combative man, Manning was an outsider who had realized as a teenager that he was gay; his cardinal characteristic seemed to be his subtle, rather anarchic intelligence and his computer expertise. He was the essential computer hacker, believing that information in whatever form and whatever its source or content was free and open to all who could access it. As an intelligence analyst, Private Manning had access to The Secret Internet Protocol Router Network (SIPRNet), a system of interconnected computer networks used by the US Department of Defense and Department of State to transmit classified information (up to and including SECRET); the Network has approximately half a million users.
In November 2009, Private Manning is alleged to have found a piece of information that aroused his attention because it was in a classified file of a Judge Advocate General officer. The information, a video that would soon become a major international news story and a threat to the military’s preferred narrative of post-surge Iraq. At about the same time, Private Manning became aware of the “open-source, democratic intelligence agency” WikiLeaks and “a white-haired Aussie” Julian Assange, a computer hacker and essentially editor-in-chief of WikiLeaks. The two never met, but they would soon be linked in the history of international jurisprudence, diplomacy, and military justice. In early 2010, at a time when Washington has long gotten over the McChrystal leak, Bradley Manning allegedly leaked the video along with other classified documents to WikiLeaks. This information is all taken from the incomplete copies of Private Manning’s e-mail chat logs with computer hacker Adrian Lamo published in Wired magazine.
On April 5, 2010, WikiLeaks released the video, citing its source as “a number of whistleblowers.” The 39-minute video shows a July 12, 2007 series of three air-to-ground attacks from US helicopters in Baghdad that killed 12 men, including two Reuters reporters and wounded two children. After the attack, the military reported that two reporters had been killed, along with nine “insurgents” and that “(t)here is no question that coalition forces were clearly engaged in combat operations against a hostile force.” WikiLeaks also released a 17-minute version of the video, which is still horrifying even after many viewings, titled Collateral Murder highlighting the killing of the journalists (http://www.youtube.com/watch?v=to3Ymw8L6ZI).
(For a similarly disturbing account of an airstrike gone bad in the high-tech battlefield, see the LA Times report on April 10, 2011 of an episode in Afghanistan in which a three-vehicle convoy of non-hostile Afghan civilians is attacked by a US team consisting of an Army unit on the ground not far from the convoy but not in visual contact, an attack helicopter nearby in Afghanistan in visual contact, a high-definition video analysis group in Florida, and a drone pilot in Nevada. The drone and the helicopter engaged the convoy of men, women, and children. By the US count after the episode, 15 or 16 men were killed [the Afghan count was 23] and 12 people were wounded, including a woman and three children. General McChrystal, then still Commander in Afghanistan, apologized for the incident and promised an investigation. Weeks later, American officers apologized to survivors and the victims’ families: survivors received about $2900; the families of the dead received about $4800. Such is the value of a life in Afghanistan. See: http://www.latimes.com/news/nationworld/world/la-fg-afghanistan-drone-20110410,0,200182.story)
Reaction to the WikiLeaks videos was quick. A spokesman for US Central Command stated that the airstrike video “gives you a limited perspective, [it] only tells you a portion of the activity that was happening that day. Just from watching that video, people cannot understand the complex battles that occurred. You are seeing only a very narrow picture of the events.” US Defense Secretary Robert Gates criticized WikiLeaks for releasing the video without providing any context. “These people can put out anything they want, and they’re never held accountable for it. There’s no before and there’s no after.” Daniel Ellsberg, the most famous leaker in US history who would become a brave and persistent supporter of Bradley Manning said:
“It would be interesting to have someone speculate or tell us exactly what context would lead to justifying the killing that we see on the screen. As the killing goes on, you obviously would see the killing of men who are lying on the ground in an operation where ground troops are approaching and perfectly capable of taking those people captive, but meanwhile you’re murdering before the troops arrive. That’s a violation of the laws of war and of course what the mainstream media have omitted from their stories is this context.”
Over the next several months, WikiLeaks released other leaked documents, and the battle between the US military and its supporters and Bradley Manning and Julian Assange was joined. Bradley Manning is a talented hacker, but he is not a denizen of the dark side (if you will); he seems to have been surprisingly naive about the effects of his actions and of the defensive response of the military to the leaks. When asked by Adrian Lamo, who would later identify Manning as the leaker to the FBI and the military, why he didn’t try to sell the document to some foreign agents and make money from the documents, Manning replied “it’s public data. It belongs in the public domain.”
On May 26, 2010, Private Manning, alleged leaker, was arrested in Iraq. On July 5, 2010, he was charged under articles 92 and 134 of the Uniform Code of Military Justice for “transferring classified data onto his personal computer and adding unauthorized software to a classified computer system in connection with the leaking of a video of a helicopter attack in Iraq in 2007” and for “communicating, transmitting and delivering national defense information to an unauthorized source and disclosing classified information concerning the national defense with reason to believe that the information could cause injury to the United States.” The sad ordeal of Bradley Manning had begun. WikiLeaks continued to publish material allegedly leaked by Private Manning. In December 2010, Julian Assange the publisher of the leaked material was investigated in Sweden for allegations of sexual assault; Assange, then in England was ordered extradited to Sweden (with possible further extradition to the United States) by the English courts. The extradition is now under appeal. Senator Dianne Feinstein has called for Assange to be prosecuted in the United States under the Espionage Act, a 1917 law enacted at the time of World War I hysteria over the possible divided loyalties of recent immigrants and ethic groups. . The Senator charges that in releasing classified information, Assange “damages our national interest and puts innocent lives at risk.” She also charges that he “…is no journalist. He is an agitator intent on damaging our government…” If Assange is charged under the act, he will be the first non-employee of the US government to be so-charged.
In March 2011, 22 additional charges were filed against Private Manning, including “aiding the enemy,” a capital offense under Article 134 of the Uniform Code of Military Justice, although the military has said that it will not seek the death penalty. If Private Manning were to be executed under article 134, he would be the second military person executed for what amounts to treason in this country. The first was Nathan Hale for treason against King George of England. Private Manning is incarcerated in the brig at Quantico Marine Base under “prevention of injury” conditions that are humiliating and degrading and that amount to slow torture. Most requests to see him are denied, including one by Representative Kucinich. President Obama, who as Commander in Chief is technically responsible for Manning’s treatment, was asked specifically about it, and the person who promised to change the tone in Washington, the former professor of constitutional law, and the recipient of the 2009 Nobel Prize for Peace replied to his great shame that he has been assured that the treatment is “appropriate and meeting our basic standards.”
Dénouement: April 2011
Do these cases satisfy the condition for “like cases” in the intuition of justice? In a 2010 interview on PBS’s Religion and Ethics Weekly, Professor Bacevich was asked about the WikiLeaks matter and specifically about Private Manning’s role, and the retired Army colonel replied that if the Army is to be effective and if civilian control and good order and disciple are to be maintained, leaks of information such as that provided to WikiLeaks cannot be approved. He added, however, that the leak of General McChrystal’s plan for the war in Afghanistan is “at least as objectionable as the WikiLeaks.” (http://video.pbs.org/video/1560656349/)
If these are “like cases” they have surely not had “like treatment” as measured by outcome for the four main players in this drama. General McChrystal was allowed to retire as a full General after leaving the military as a result of “The Runaway General” article even though he hadn’t fulfilled the 3-years-in-rank requirement. He has been called “one of America’s greatest warriors” by Secretary Gates. The ex-General sits on the board of a few corporations. He teaches a course titled simply “Leadership” at the Jackson Institute for Global Affairs at Yale University; he also lectures widely on leadership and teamwork (his biography accompanying the lectures stresses that President Obama’s decision to increase troop strength in Afghanistan was based on the General’s assessment). Finally, he was recently appointed by President Obama to the advisory board of the First Lady’s program “Joining Forces,” which is designed to support the country’s military families. (The mother of Pat Tillman has objected to the General’s appointment and called the President out on the appointment.)
Bob Woodward continues to become wealthy by writing large, boring first drafts of history, many of which contain various amounts of classified material supplied by “key sources,” anonymous contacts, and friends in the history-making business. Joan Didion in a critique of Woodward’s oeuvre in The New York Review of Books noted that the books contain large amounts of almost random material but “these are books in which measurable cerebral activity is virtually absent.” Sounds a bit like a data-dump. Woodward remains alone as the super-ego of establishment America journalism.
Julian Assange, the id of the new international journalism, remains on bail in England, unable to leave and awaiting decision about his deportation to Sweden and perhaps to the United States. He still, however, exerts editorial control of the WikiLeaks project. Outdoing Senator Feinstein, Jeffrey T. Kuhner, a columnist at The Washington Times and president of the Edmund Burke Institute, wrote in December 2010 that Assange, who has been convicted of no crime or even been charged with one, is an enemy combatant who poses a threat to American national security and should be assassinated (http://www.washingtontimes.com/news/2010/dec/2/assassinate-assange/). That is a minority view; however, Assange has been consistently attacked by mainstream journalists as a pseudo-journalist, a fraud, and a threat to real journalists’ attempt to get access to the information the public needs to do its civic functions. These attacks have been well-documented by Glenn Greenwald, who has been a tireless defender of the adversarial work of WikiLeaks (http://www.salon.com/news/opinion/glenn_greenwald/2011/04/09/wikileaks/index.html).
Private First Class Bradley Manning, alleged leaker, languishes in some dungeon in the Marine brig in Quantico Marine Base in Virginia; he has not been given an opportunity to speak publicly. His case is kept before the public by a brave group of individuals and organizations. Daniel Ellsberg has advocated for Manning’s release. Glenn Greenwald has again worked and written on behalf of Manning and helped publicize the despicable conditions of his imprisonment (http://www.salon.com/news/opinion/glenn_greenwald/2011/04/11/manning/index.html).
Bradley Manning finished ninth in the 2011 Time Magazine poll of the most influential people of the year, behind some Asian rock stars but ahead of Lady Gaga. An essential source of information about Private Manning and his case is the Bradley Manning Support Network (http://www.bradleymanning.org).
The other prominent player in the drama, President Obama, has continued and even escalated American military involvement and has appeared to make peace with military establishment, so forcefully represented by General McChrystal and so resourcefully resisted by Private Manning. The United States under President Obama now is conducting combat operations in five predominantly Muslim countries: Iraq, Afghanistan, Pakistan, Yemen, and Libya. On March 28, 2011, the President addressed the nation and described the rational for the latest military adventure, the bombing campaign in Libya. The next day, the political philosopher Robert Paul Wolff (ever to be admired by me for his wonderful little book In Defense of Anarchism) noted on his blog (http://robertpaulwolff.blogspot.com/, Tuesday, March 29, 2011):
“I listened very carefully to Obama’s speech about Libya last night. It was intelligent, careful, prudent, restrained, high-minded, and — I thought — admirably clear. In short, it is just about the best version we are going to get of American Imperialism.”
Free Bradley Manning.