Seriously, if you haven’t read it you should. I’ll wait. Done? Good, because Lt. Colonel Daniel Davis has done exactly the right thing by submitting the report to both the Pentagon and Congress. As part of the normal security clearance process for ranking officers, Colonel Davis has signed at least one Standard Form 312. It specifically provides for communications with Congress:
Section 1034. Communicating with a Member of Congress or Inspector General; prohibition on retaliatory personnel actions
(a) Restricting communications with Members of Congress and Inspector General prohibited.
(1) No person may restrict a member of the armed forces in communicating with a Member of Congress or an Inspector General.
(2) Paragraph (1) does not apply to a communication that is unlawful.
(b) Prohibition of retaliatory personnel actions. No person may take (or threaten to take) an unfavorable personnel action, or withhold (or threaten to withhold) a favorable personnel action, as a reprisal against a member of the armed forces for making or preparing a communication to a Member of Congress or an Inspector General that (under subsection (a)) may not be restricted. Any action prohibited by the preceding sentence (including the threat to take any action and the withholding or threat to withhold any favorable action) shall be considered for the purposes of this section to be a personnel action prohibited by this subsection. (Emphasis mine)
Back to Michael Hastings at RS:
Davis last month submitted the unclassified report –titled “Dereliction of Duty II: Senior Military Leader’s Loss of Integrity Wounds Afghan War Effort” – for an internal Army review. Such a report could then be released to the public. However, according to U.S. military officials familiar with the situation, the Pentagon is refusing to do so.
According to Davis, the classified report, which he legally submitted to Congress, is even more devastating. “If the public had access to these classified reports they would see the dramatic gulf between what is often said in public by our senior leaders and what is actually true behind the scenes,” Davis writes. “It would be illegal for me to discuss, use, or cite classified material in an open venue and thus I will not do so; I am no WikiLeaks guy Part II.” (Emphasis mine)
The Colonel is the real new Daniel Ellsberg. Bradley Manning, who dumped documents to a thumb drive and first appeared on Dennis Kicinich’s radar only after being arrested, is no Daniel Ellsberg. Then-Major Ellsberg is largely responsible for the existence of the Congressional Whistleblower Protection Act, which is referenced in Standard Form 312. Bradley Manning signed a copy, too:
10. These restrictions are consistent with and do not supersede, conflict with or otherwise alter the employee obligations, rights or liabilities created by Executive Order 12356; Section 7211 of Title 5, United States Code (governing disclosures to Congress); Section 1034 of Title 10, United States Code, as amended by the Military Whistleblower Protection Act (governing disclosure to Congress by members of the military); Section 2302 (b)(8) of Title 5, United States Code, as amended by the Whistleblower Protection Act (governing disclosures of illegality, waste, fraud, abuse or public health or safety threats); the Intelligence Identities Protection Act of 1982 (50 U.S.C. 421 et seq.) (governing disclosures that could expose confidential Government agents), and the statutes which protect against disclosure that may compromise the national security, including Sections 641, 793, 794, 798, and 952 of Title 18, United States Code, and Section 4(b) of the Subversive Activities Act of 1950 (50 U.S.C. Section 783(b)). The definitions, requirements, obligations, rights, sanctions and liabilities created by said Executive Order and listed statutes are incorporated into this Agreement and are controlling.
11. I have read this Agreement carefully and my questions, if any, have been answered. I acknowledge that the briefing officer has made available to me the Executive Order and statutes referenced in this Agreement and its implementing regulation (32 CFR Section 2003.20) so that I may read them at this time, if I so choose. (Emphasis mine)
According to the government’s allegation, Bradley Manning was not blowing a whistle. He was just leaking classified information, which is against the law and a complete betrayal of every person in an American uniform. Some writers do not get this concept, and tend to call it authoritarian; the military is easy to caricature this way because authority is one of its primary characteristics. “Colonel Daniel Davis” enjoys privileges of rank: “Private Bradley Manning” has to salute him, speak with respect, and end every sentence with ‘sir.’
But they are both free to give America vital information without potential harm to the United States — as long as they do it according to the law. One of the great ironies of the Manning case is that defenders speak so much of restoring the rule of law. Another is that Ellsberg himself has picked up the Manning cause even though the accused WikiLeaker failed to obey a law for which Ellsberg is largely responsible.
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