Given the choice, who would you rather see prosecuted: WikiLeaker Bradley Manning, or the four Marines who became famous this week for urinating on dead Taliban?
Manning – accused of an amazingly high-volume bit of data theft that embarrassed both the military and the State Department – was recommended for a court martial yesterday. Given the visibility of the crime, seriousness of the material that was stolen and what appears to be a substantial amount of evidence against him, it would be shocking if Manning isn't convicted, let alone tried.
The P****ng Marines, on the other hand, are accused of graphically expressing their disdain for a number of Taliban fighters who were far beyond the point of knowing or caring about the Marines' opinion.
Manning, allegedly, struck a mighty blow for open-government, the rights of prisoners and the practical politics of the U.S. in tolerating the torture, murder and incarceration without trial of people suspected of being terrorists, but who will never get a trial that would help everyone be sure.
The P****ng Marines are accused not of striking a blow, but certainly of making a mark, one that could cause even more political and military problems for the U.S. in Afghanistan and Iraq.
Given the level of outrage that arose in Afghanistan, Pakistan and the rest of the Middle East, there's a good chance they'll be charged and possibly court martialed.
Even though they haven't committed a crime.
So the question becomes, is it worse to release information with disturbing revelations about your country's involvement in the torture of foreign prisoners, drone attacks where drones weren't supposed to fly and the overly loose rules of engagement under which at least one U.S. helicopter massacred a group of noncombatants in Baghdad?
Or is it worse to fight the enemy where you find him, as you've been trained, transported and ordered to do, then celebrate your own survival and mitigate your guilt by demonstrating your win by urinating on the dead bodies of your enemy?
Oddities of military justice
The whole comparison is a bit of a trick question.
In the civilian world peeing on a dead body is unquestionably rude, but would break specific laws only in places with laws designed to preserve the dignity of the remains of the dead.
In December the Air Force admitted dumping the incinerated remains of almost 300 U.S. troops in a Virginia landfill, which doesn't really qualify as an unswerving commitment to preserving the dignity of the dead.
Still, stealing secret files from your employer and giving them to WikiLeaks where they can be published with the specific intention of embarrassing your employer and inciting public rage against it is illegal pretty much anywhere.
Both Manning and the P****ng Marines are subject not to civilian laws, however, but to the Uniform Code of Military Justice (UCMJ) which varies in odd ways from civilian rules.
One is the ability to prosecute service members for archaic crimes like Dueling long after civilian laws would have to break down the duel into assault and weapons charges to build a prosecution.
Another is the criminalization of anything that might erode the order, efficiency or discipline of the military.
(Look around your office right now and think how many colleagues you'd like to send up on charges of Malingering or Disrespect Toward a Superior?)
The UCMJ also has a trump card, Article 134, which makes anything a crime the military thinks should be prosecuted as a crime.
Sometimes called the "Devil's Article, according to Wikipedia, Art. 134: General Article covers "all conduct of a nature to bring discredit upon the armed forces and crimes and offenses not capital of which persons subject to this chapter may be guilty."
Under normal conditions disrespect toward a dead enemy on the battlefield during wartime wouldn't come close to qualifying.
For example, during World War II mistreating dead enemies was so widely accepted that even stealing body parts was common. In the May 22, 1944 issue of Life magazine showed a picture of a Navy lieutenant's girlfriend writing a letter the caption claims is a thank you for the Japanese skull he'd sent her.
In a memoir of his time fighting in the Pacific during World War II, Eugene B. Sledge described life in combat with details that were more gruesome to readers because they were obviously routine for participants.
At one point Sledge writes about a friend idly tossing pebbles into the open skull of a Japanese soldier who died when a bullet took off the top of his head during the brutal fighting for Peleliu Island. Though it sickened him a bit, the incident wasn't unusual or outrageous enough to raise an eyebrow.
The incident was a key scene in the HBO mini-series The Pacific that was produced by Steven Spielberg and Tom Hanks , depending heavily for source material on characters and incidents Sledge described in his 1981 book With the Old Breed at Peleliu and Okinawa.
When does provocation become a crime?
It's hard to defend the act of urinating on a corpse, out of respect for the person it was and the family or society from which the dead man came.
It's provocative toward survivors, shows disdain for the dead and erodes within the perceptions of the Marines themselves any respect they might have had for their enemy.
Public disrespect toward the dead could outrage civilians and make it easier for the Taliban to recruit new fighters.
Of course, it could also reinforce the perception of American troops as fierce, effective, professional and very, very dangerous to anyone choosing to shoot at them.
Afghans themselves do not have a strong history of respect toward a dead or captured enemy.
During the Soviet Occupation during the 1980s, both rebel and Soviet-allied Afghans regularly tortured (often sexually) captured enemy fighters.
After the Soviets left, the Mujahideen who took power used beheadings and mutilation of the dead as ritual desecration of an unholy enemy, according to anthropologist and activist Dawn Perlmutter, who studied Afghanistan in the wake of the Soviet war.
"Suicide bombings, beheadings, mutilation, cutting out tongues, cutting off ears, amputations, gouging out eyes, genital mutilation, and dismembering dead bodies is common and widespread. Although our natural inclination is to relegate these horrific acts to another century, when interpreted in the context of religious ideologies, sacred customs, and cultural traditions it is obvious that they are not anachronisms."– Dawn Perlmutter, Mujahideen Desecration: Beheadings, Mutilation& Muslim Iconoclasm, 2007
Afghans were so feared as fighters, especially for their reputation for torturing and dismembering the captured or wounded, even Rudyard Kipling, a fierce nationalist who considered the British military to be a pathway to salvation for people in the countries it conquered, immortalized Afghans as an enemy so fearsome that suicide was preferable to even the risk of capture:
When you're wounded and left on Afghanistan's plains, And the women come out to cut up what remains, Jest roll to your rifle and blow out your brains An' go to your Gawd like a soldier. – Rudyard Kipling, The Young British Soldier, 1895
Not the kind of people, you'd think, who would be irretrievably offended by the act of peeing on a dead man.
Courage vs. outrage
Bradley Manning, on the other hand, assuming he is the one who shipped all those files to WikiLeaks, only pissed people off. He pissed off the entire power structure of the most powerful country on Earth, which you'd have to put on a resume under Notable Accomplishments.
There's no doubt stealing all those secret files and publishing them was illegal, or that it was insanely rash, but it was also an act of courage to knowingly accept the risk of almost inevitable arrest to publicize policies and behavior you oppose.
That doesn't change the fact that the files were stolen and that in stealing them – assuming, again, that he's guilty – Manning broke both military and civilian law.
It's harder to baldly condemn publishing information about illegal killings and torture that violate the most basic principles of the Constitution you've sworn to uphold.
It may not excuse the act, or do a thing to justify it in the view of the court, but it changes the intent and effect of the act from simple espionage to something closer to civil disobedience.
That doesn't mean he'll get away with it, or that the P****ng Marines will, either. Politics will have an impact on the fates of both.
Manning attracted so much support for what many consider an act of civil disobedience that he might have gotten away with a less ambitious crime – one that wasn't among the largest breaches of classified data in the history of the U.S. military or State Departments, for example.
If the P****ng Marines hadn't gone viral, on the other hand, the worst punishment they could have expected would have been a dressing down from a superior officer.
They may still not be prosecuted.
As indefensible as it is to urinate on a corpse – and as weak a reason as they had for doing it, compared to Manning's – it doesn't seem as if they really did enough damage, or did anything so clearly criminal that they should be prosecuted.
As long as they don't do something radically criminal during the investigation. Malingering, for example. Or Disrespect Toward a Superior, especially. The way these guys show disrespect, showing it to a live Superior would almost have to lead to Duelling, and even the Marines won't put up with that.
Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.