Satisfying National Security

Saturday mornings in Hollywood are difficult. Los Angeles is on the far side of a thousand miles of desert, and when the angry sun edges up over the Griffith Observatory, one hill over, it kind of hurts. It’s going to be another hot one. We can go months out here without seeing even a cloud. The hills will burn again soon. Everything is blasted bone-dry. We’ve drained the Owens Valley and the Colorado River to keep Beverly Hills green, but the rest of the town is always faded and dusty. Everything’s the color of concrete, and soon the beaches will be jammed and Hollywood Boulevard filled with bewildered tourists from Iowa. It’s best to lay low, and Saturday morning is sitting at the kitchen table, away from the windows, sipping black coffee, and plowing through the morning paper – but with the television on in the next room, at low volume, because Saturday morning it’s back-to-back reruns of old episodes of Law and Order. They’re all the same, but nicely so. Lenny Biscoe tracks down the bad guys on the actual streets of New York, and sometimes there’s even snow and rain. That helps, and then District Attorney McCoy tries the case, and the one surprising bad guy no one really suspected goes off to jail, usually. That’s also quite satisfying. As each hour ends it’s not just another day in paradise – words always spoken out here in cynical irony – it’s also the resolution of all ambiguity. That’s comforting.

That’s also not real life. It shouldn’t be. That’s not how mass-market entertainment works. People crave closure, whatever that word means, but there’s really no such thing. At best it’s a plot device. No guilty verdict undoes the damage done – fraud or murder or whatever. All you get is punishment, or justice, which is even harder to define, but will have to do. And maybe we just got something like that in real life:

A military judge sentenced Pfc. Bradley Manning on Wednesday to 35 years in prison for providing more than 700,000 government files to WikiLeaks, a gigantic leak that lifted the veil on American military and diplomatic activities around the world.

The sentence is the longest ever handed down in a case involving a leak of United States government information for the purpose of having the information reported to the public. Private Manning, 25, will be eligible for parole in about seven years, his lawyer said.

And that’s that:

In a two-minute hearing on Wednesday morning, the judge, Col. Denise R. Lind of the Army, also said that Private Manning would be dishonorably discharged and reduced in rank from private first class to private, the lowest rank in the military. She said he would forfeit his pay, but she did not impose a fine.

Before the sentencing, Private Manning sat leaning forward with his hands folded, whispering to his lawyer, David Coombs. His aunt and two cousins sat quietly behind him. As Colonel Lind read the sentence, Private Manning stood, showing no expression. He did not make a statement.

We’ve all seen that in the Law and Order reruns, but it’s not so simple:

The materials that Private Manning gave to WikiLeaks included a video taken during an American helicopter attack in Baghdad in 2007 in which civilians were killed, including two journalists. He also gave WikiLeaks some 250,000 diplomatic cables, dossiers of detainees being imprisoned without trial at Guantánamo Bay, Cuba, and hundreds of thousands of incident reports from the wars in Iraq and Afghanistan.

Manning thought we should know, and that was his defense:

Mr. Coombs later told reporters that he would apply for a presidential pardon next week and read a statement from Private Manning that he said would be included in his request.

“I only wanted to help people,” Private Manning’s statement said, adding, “If you deny my request for a pardon, I will serve my time knowing that sometimes you have to pay a heavy price to live in a free society.”

A White House spokesman said a request would be considered “like any other application.”

This wasn’t the heavy hand of justice coming down with a vengeance:

The judge’s decision to impose a 35-year sentence roughly split the difference between what the prosecution had requested – 60 years – and the 20 years that Private Manning had exposed himself to before the trial began when he pleaded guilty to a lesser version of the charges he was facing. …

Colonel Lind could have sentenced Private Manning to up to 90 years. She found him guilty last month of most of the charges against him, including six counts of violating the Espionage Act, but acquitted him of the most serious charge, aiding the enemy, which had never before been filed in a leak case. Private Manning’s sentence must be reviewed by the so-called convening authority, a general who oversees the Military District of Washington and has the power to reduce the term but not add to it. The case will then automatically come before the Army Court of Criminal Appeals.

The concept of ambiguity was served, as each side made their points:

In seeking a 60-year sentence, prosecutors argued that Private Manning had betrayed the trust of the government and said they hoped a severe punishment would discourage future leaks. They also had asked the judge to impose a fine of $100,000 to repay some of what was spent on efforts to mitigate damage, including identifying individuals who officials said had been put at risk by the disclosures.

Mr. Coombs argued that Private Manning had leaked the files because he wanted to start a public debate and bring about change, portraying his client as a well-intentioned, if naïve, whistle-blower.

The military judge split the difference, and then it got a little Hollywood:

Mr. Coombs, seeking leniency, also argued that his client was confused at the time by stresses, including a crisis over his gender identity while in a combat zone. He elicited testimony showing that the military played down serious and recurring signs that Private Manning’s mental health was deteriorating, allowing him to maintain his access to classified information.

It seems Manning had always felt he was a woman trapped in a man’s body, which is a bit of a liability in a testosterone-fueled war zone, and the Army just laughed at him, which somehow further destabilized him. There’s a good screenplay in there somewhere, but all that is somewhat beside the point. He did what he did, and he knew what he was doing. Save it for a movie on Lifetime or something.

The split-the-difference sentence did, however, open a door:

WikiLeaks founder Julian Assange on Wednesday hailed the sentencing of the website’s source Bradley Manning as a “significant tactical victory”, saying the US soldier could serve as little as one-sixth of his 35-year jail term.

In a statement issued from London where he has spent a year in the Ecuadoran embassy trying to avoid extradition to Sweden on sexual assault allegations, Assange said there would be “thousand more Bradley Mannings.”

The idea here is that this was actually a victory, even if Assange isn’t good at math:

Assange said Manning had been given a minimum sentence of 5.2 years and that the “hard-won minimum term represents a significant tactical victory for Bradley Manning’s defense, campaign team and supporters.”

The Australian did not explain how he calculated the minimum sentence.

He added: “While the defense should be proud of their tactical victory, it should be remembered that Mr Manning’s trial and conviction is an affront to basic concepts of Western justice.”

This is not over by any means:

“Mr Manning’s treatment has been intended to send a signal to people of conscience in the US government who might seek to bring wrongdoing to light. This strategy has spectacularly backfired, as recent months have proven,” Assange said.

It has? That’s his story and he’s sticking to it:

WikiLeaks recently lent its support to Edward Snowden, a former US National Security Agency (NSA) consultant who passed secret documents to Britain’s Guardian newspaper. Snowden has been granted temporary asylum in Russia as he flees a US bid to prosecute him.

Assange sees a movement here, but Time’s Michael Scherer is a bit more measured:

The sentence was considerably less than the lifetime sentence Manning faced under the original charges brought by the government, including aiding the enemy, for which he was acquitted. It was also nearly half of the 60 years recommended by the prosecutors after he was convicted in July of leaking information and six violations of the Espionage Act. Manning’s lawyer, David Coombs, had previously suggested that Manning face only 25 years in prison, given that the information he leaked would likely be declassified after that time.

Manning, 25, was dishonorably discharged and had his rank reduced to private and his pay forfeited. He will get credit for three and a half years already served in prison. If he serves his entire term, he would be a free man at the age of 58, but under military rules he could become eligible for parole after serving one third of his sentence.

Those are the facts of the sentence, and in the New Republic, Molly Redden argues that Manning actually got off easy:

For their part, Manning’s defense team is probably relieved.

Earlier this week, his attorney David Coombs asked the judge, Col. Denise Lind, for a sentence that would allow Manning “to have a life,” while attorneys for the military asked her to make an example of him. Said Capt. Joe Morrow, “There is value in deterrence… This court must send a message to any soldier contemplating stealing classified information. National security crimes that undermine the entire system must be taken seriously.”

Marcy Wheeler also thinks Manning got off easy:

Bradley could be released after serving one third of his sentence. In light of the fact Judge Lind has imposed a term of 35 years, Mr. Manning, considering the time he has already served, could potentially be eligible for release in as little as 9 years from now. As painful as it is to admit, this sentence, and Bradley Manning’s prospects could have very easily looked far worse.

Is that justice? In National Interest, Ryan Evans doesn’t seem to think so:

Manning is lucky he did not receive life, which he should have. The sympathy for this “troubled young man” is emblematic of a post-accountability society. No one, it seems, is to be held responsible for their actions any longer. Instead, blame is shifted to a difficult childhood, bullying, loneliness, or – my personal favorite – “the system.” In Manning’s own words, he was “dealing with a lot of issues.” …

Manning himself has admitted that he understood what he was getting into when he agreed to provide these documents to WikiLeaks. To those who argue that he should not be held accountable for that decision, I ask: Why not?

Many might feel that way, but then the New York Times’ Charlie Savage notes here that, in addition to time already served, Manning “will be credited with 112 days for the treatment he endured at a military jail that the judge ruled was unlawful.”

Unlawful? Esquire’s Charles P. Pierce runs with that:

Manning was treated barbarically over those 112 days. This didn’t happen by accident. This wasn’t an oversight. It was a policy decision. He was treated that way deliberately by this government. He was treated that way because that is how this administration wanted him treated. This is an administration that simply does not want the people to know what is being done in its name. The last administration didn’t want that either, but C-Plus Augustus wasn’t a constitutional law professor promising the most open and transparent administration in history, either… And that’s the part of the story that shouldn’t go away with Bradley Manning.

There’s a lot of ambiguity piling up here, and Scott Lemieux, a lawyer who expected a gentler sentence, agrees with Pierce:

I don’t object to Manning being charged with a crime. I certainly strongly object to the way he was treated in prison. And I think the idea that his leaks merit a 35-year sentence is absurd. And as I said before, it’s particularly appalling when you consider the Obama administration’s “look forward not back” approach on torture. It’s hard to square this life-ruining sentence with the fact that no torturer was even considered worthy of being charged. I’d also say that at this point that it’s pretty hard to the American government to complain when other countries refuse to extradite whistleblowers.

Lemieux sees no justice here, just disproportionate punishment, and he points to the larger issue, which is that Obama has quite a problem on his hands:

A federal judge sharply rebuked the National Security Agency in 2011 for gathering and storing tens of thousands of Americans’ e-mails each year as it hunted for terrorists and other legitimate foreign targets, according to the top secret court ruling, which was made public on Wednesday.

The 85-page ruling by Judge John D. Bates, then serving on the Foreign Intelligence Surveillance Court, involved an NSA program that searches Americans’ international Internet communications for discussion of foreigners under surveillance. Judge Bates found that the agency had violated the Constitution for several years and declared the problems part of a pattern of “misrepresentation” by agency officials in submissions to the secret court.

The release of the ruling, under pressure from a Freedom of Information Act lawsuit, was the latest effort by the Obama administration to contain revelations about NSA surveillance prompted by leaks by the former agency contractor Edward J. Snowden.

If it isn’t Manning, it’s Snowden. Julian Assange said this would happen, but you can always make lemonade out of lemons:

A senior intelligence official, speaking to reporters in a background conference call, portrayed the ruling as showing that NSA oversight was robust and serious. He said that some 300 NSA employees were assigned to seek out even inadvertent violations of the rules and that the court conducted “vigorous” oversight.

See, they told us that we screwed up in the worst possible way, so the system works! What’s not to like?

There’s plenty not to like, but the New Yorker’s Jeffrey Toobin would rather not like Edward Snowden one bit:

The assassinations of Martin Luther King, Jr., and Robert F. Kennedy led directly to the passage of a historic law, the Gun Control Act of 1968. Does that change your view of the assassinations? Should we be grateful for the deaths of these two men?

Of course not. That’s lunatic logic. But the same reasoning is now being applied to the actions of Edward Snowden. Yes, the thinking goes, Snowden may have violated the law, but the outcome has been so worthwhile. According to Glenn Greenwald, the journalist who was one of the primary vehicles for Snowden’s disclosures, Snowden “is very pleased with the debate that is arising in many countries around the world on Internet privacy and U.S. spying. It is exactly the debate he wanted to inform.”

Kevin Drum finds the rest of Toobin’s piece “surprisingly unpersuasive” but sees a worthwhile question here:

Leaving aside the obvious provocation of his assassination analogy, he’s asking whether any of us think that we should actively approve of what Snowden did just because we like the results. And if we do, does that mean we think that anyone working in the intelligence community who dislikes America’s surveillance policies should feel free to disclose whatever information they feel like?

For anyone who’s not already a full-blown Snowden hater or defender, this may seem like a troubling question. But it shouldn’t be. You might not know this if you subsist on a diet of cable news shouting matches, but it really is possible to believe two things at once…

Drum suggests these two things:

Intelligence agencies are a necessary fact of life and governments have a legitimate interest in keeping their operations secret. Anyone who works in the intelligence community knows this, and knows that security breaches are a serious business that will lead to prosecution.

Americans have recently learned a lot about how pervasive our surveillance operations are, and it’s laughable to think we would have learned any of it if Snowden hadn’t done what he did. In the end, even if he’s made some mistakes along the way, he’s done a public service.

Drum simply chooses to believe both those things:

I believe that 30-year-old contractors shouldn’t be the ones who decide which secrets to keep and which ones to reveal. I also believe that, overall, Snowden has been fairly careful about what he’s disclosed and has prompted a valuable public conversation.

Julian Assange and the rest oversimplify the real problem:

So how do you prevent an epidemic of Snowdens while still allowing the salubrious sunlight of the occasional Snowden? The answer to the former is that intelligence workers need to be afraid of prosecution if they reveal classified documents. It can’t be a casual act, but a deeply considered one that’s worth going to prison for. The answer to the latter is that prosecution needs to be judicious. There’s no question in my mind that Snowden should be prosecuted for what he did. That’s the price of his actions. But he shouldn’t be facing a lifetime in a Supermax cell. The charge against him shouldn’t be espionage; it should be misappropriation of government property or something similar. Something that’s likely to net him a year or three in a medium-security penitentiary. …

The bottom line is that I’d like to see Snowden come back to America and make a public case by standing for trial. It would be a sign of how strongly he believes that he was right to do what he did. But I can hardly expect that under the current circumstances. The wild overreaction of my own government to the notion of allowing the public even the slightest knowledge of what it’s up to has made it impossible.

Nothing is ever easy, and Marc Ambinder points to the technology available now:

The NSA is the most powerful single institution in the world. It can collect more information, more quickly, and cause action from that information, more efficiently than any company, country or intelligence entity. Even if no one accused the NSA of doing anything wrong, it is the interest of a freedom-seeking society to layer in as much transparency as possible for no other reason than that there is really no historical precedent for an organization that large with that much power not abusing it, whether incidentally or deliberately.

He also adds this:

It is eye-raising to base one’s objection to NSA’s self-reporting on the idea that there is no way to independently check what the NSA says. Well, of course. There is a logical problem here because someone or some entity will be at the bottom of the chain. It has always been difficult to establish transparent legal and formal mechanisms to make sure that agencies that secretly collect secrets don’t abuse their power. But it is easier now than it has ever been. The evidence suggests that NSA has MORE checks on its power now than ever before.

Ambinder also dabbles in ambiguity, but Digby (Heather Parton) dives even deeper:

None of this surveillance and covert activity could be rationalized if this nation didn’t consider itself on a perpetual war footing (the enemies changing as necessary with the times.) This is bankrupting our country both financially and morally. It’s been going on since before I was born – and I’m old. And it has enabled a security state of unprecedented proportions. It’s especially concerning now that the Manichean rationale of the cold war is long over and we can no longer make even the slightest claim to a serious, existential threat. That we’ve ramped this war footing up even beyond our cold war capabilities on the basis of a rag-tag bunch of terrorists is mind boggling when you think about it.

We had a good run with this. The US was extremely prosperous even as it became a military behemoth. But it’s not working anymore. Yet the machine just keeps on cranking creating new and different reasons for its existence. The money, the secrecy, the overriding power this national security state now produces and depends upon is distorting our democracy, our economy and our security. And we can have dozens of Snowdens revealing secrets or other whistleblowers revealing corruption in the contracting business or government officials being revealed to have overstepped their grounds – along with all the so-called reforms that will inevitably follow – but it won’t change a thing unless we understand that the fundamental problem is our status as global military empire and the resulting necessity to find new enemies and create perpetual war to rationalize it.

Maybe that’s so, but if that is so, that puts the sentencing of Bradley Manning in a much larger perspective. The charges were reduced from the most severe and he was convicted, but he received a lighter sentence than the government wanted, but one that was severe enough. And he and Snowden are bad guys and heroes both, at the same time. Those old Law and Order reruns on Saturday mornings are a whole lot easier – the actual bad guys gets what’s coming to him and all ambiguity is resolved, and justice is served, more or less. No wonder those episodes live on in endless syndication. Life should be like that. It isn’t.

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
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1 Response to Satisfying National Security

  1. Rick says:

    I think Kevin Drum is right, although I do think we need to find a way to encourage whistle-blowing in the military and the government — that is, a way of whistleblowers to report to someone high up stuff being kept secret that shouldn’t be, without being punished for it.

    Jeffrey Toobin, uncharacteristically, is wrong in what he says. His analogy breaks down. The people who assassinated King and RFK did not do so to promote more gun control, whereas Snowden did what he did to inform people of policies our government should have made us aware of.

    Ryan Evans thinks Manning got off easy: “No one, it seems, is to be held responsible for their actions any longer.”

    Good point. For example (and I don’t know the answer to this), was the soldier in the helicopter video released by Manning, the guy who shot those two journalists and I think some car with kids in it (either he or one of his buddies later saying it was the parents’ fault for bringing the kids to a firefight), held responsible for killing innocents? I never heard. He, and they, should have been punished much more harshly than Manning.

    And about that helicopter video:

    Why is it that we, the American people, only saw that video because of a leak? Why couldn’t the Army be the one to own up to its own misbehavior and release that video? Or do they deny the actions shown in that video even were wrong? That would be worth our knowing, too.

    In fact, while they were so busy prosecuting Manning, did they make any attempt to go after whoever it is in the military responsible for the coverup — that is, withholding release of the helicopter video from the public?

    Yes, of course the Army didn’t want us to see that, but they had no right — and apparently no good reason, for that matter — to keep it from us.

    It would seem the only reason they did was because they were avoiding being embarrassed by the video — and that’s not a good reason.

    Rick

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