Above: Professor Benkler testifies by Deb VanPoolen.
Yochai Benkler’s stirring defense of WikiLeaks: trial report, day 17
On the final day of Bradley Manning’s defense’s case, Harvard Law Professor and renowned scholar Yochai Benkler testified about how the Internet changes journalism’s function in a democracy, how WikiLeaks was viewed over time, and why WikiLeaks should be considered a legitimate news organization, devoted to exposing corruption.
Benkler’s testimony is crucial to undercutting the government’s core argument that Bradley Manning intended to give documents indirectly to al Qaeda by passing them to WikiLeaks. Whereas the prosecution has spent weeks characterizing WikiLeaks as a reckless collective that terrorists were known to visit, Benkler said, “WikiLeaks played that critical role of that particular critical component of what muck-raking and investigative journalism has always done.”
Professor Benkler discussed his Harvard Civil Rights-Civil Liberties Law Review article, “A Free Irresponsible Press: WikiLeaks and the Battle Over the Soul of the Networked Fourth Estate,” the most widely cited academic article on WikiLeaks. He was qualified as an expert on the ‘Networked Fourth Estate,’ a term he coined to explain how technological advances have changed journalism’s ability to check our three main branches of power.
In his research and in his testimony, Benkler recounted WikiLeaks’ origins, early leaks, journalistic awards, and major 2010 leaks, focusing largely on how perceptions of WikiLeaks changed over time.
When WikiLeaks first became known to the public, it was questioned for its ability to authenticate documents. But as it published documents on corporate corruption in Europe, rampant censorship in China, and extrajudicial killings in Kenya, WikiLeaks came to be seen as a legitimate news organization and whistleblowing resource.
Benkler started researching WikiLeaks in April 2010, upon the Collateral Murder release, and continued to track news coverage of the group throughout that year. He noticed significant shifts – in small part after the July 2010 Afghan War Log release, much more so after the October 2010 Iraq War Log disclosure, and finally upon the November 2010 State Department cable publication, government officials and media organizations shifted from portraying WikiLeaks as a transparency-motivated news organization to painting it as an anti-American, terrorist-affiliated website with blood on its hands.
The government objected to questioning about anything after May 2010, contending that what happened after Manning’s disclosures is irrelevant to his knowledge at the time he released documents. But defense lawyer David Coombs explained that the government had charged Manning with aiding the enemy much later (March 2011), with evidence of the enemy’s receipt from even later (May and June 2011).
Coombs argued that it was only after the government overreacted wildly to the disclosures and characterized WikiLeaks this way that the enemy asked for WikiLeaks-released documents.
Benkler said that he believed Manning’s abusive treatment at Quantico was consistent with the government’s core tactic, to undermine WikiLeaks and to “increase the fear … or the constraint on potential leakers.”
Iraq war logs’ value
In cross-examination, the government attempted to distinguish WikiLeaks from traditional media outlets.
“Would you agree mass document leaking is somewhat inconsistent with journalism?” prosecutor Capt. Morrow asked.
“No. Why would I agree with that?” Benkler replied
Benkler said that as long as the documents were relevant to the public interest, mass leaking could be very useful journalistically, using the Iraq War Logs to explain himself. He said that Iraq Body Count used the war reports to conduct an independent review, and found a major discrepancy between the government’s public casualty count and what these documents showed. You can’t conduct that type of investigation and show that level of inconsistency with just one document, he said. You have to take the whole body of source documents.
Journalism vs. Activism
The government also tried to paint WikiLeaks as activists, and asked if Benkler felt there was a difference between journalists and activists. Benkler said the two aren’t mutually exclusive: there are activists who engage in journalism and journalists who do activism. He defined journalism as the “gathering of news and information relevant to the public interest for the purposes of dissemination to the public,” and activism as an effort to change institutions. But a point of his research is to show that the two overlap, that journalism is meant to act as a check on power, and the way it performs that check changes with technological innovations.
When Capt. Morrow asked if the motive to get only relevant information was journalism, Benkler said, “No, that’s what I’m resisting.” He said that ‘All the news that’s fit to print’ is merely one model of journalism, and that, for example, The Nation and Fox News represent a “mobilized journalism” model. WikiLeaks is yet another.
Benkler rebuts Army report on WikiLeaks
One document Benkler reviewed in his research was the Manning-leaked and WikiLeaks-released copy of the 2008 Army Counterintelligence Report on whether foreign adversaries used WikiLeaks as a resource, which the government entered as evidence in an attempt to show Manning’s knowledge of WikiLeaks (see here for more on that).
Benkler called the report “speculative,” said it was of “mediocre” quality, and said it appeared largely based on open-source information. Furthermore, its executive summary and body contained the blatant falsehood that WikiLeaks doesn’t authenticate its documents. In fact, at the time of the report, questions of WikiLeaks’ verification had subsided, as critics who doubted its ability to verify had actually praised its authentication system. Benkler noted a Los Angeles Times report claiming that less than 1% of WikiLeaks’ releases were potentially inauthentic.
Benkler explains danger of “aiding the enemy” theory
Prosecutors asked Benkler to confirm that his positions on this court martial were well known, and that he’d written two op-eds – one with Floyd Abrams for the New York Times, “Death to Whistle-blowers?” and one for the New Republic, “The Dangerous Logic of the Bradley Manning Case.”
Benkler explained in full his theses in both articles, that to equate giving documents to a news organization to be published on the Internet with giving documents to the enemy “would severely undermine the way leak-based investigations” would work.
Defense rests case, return for rebuttal next week
The defense then rested its case, and Bradley Manning confirmed that he did not wish to testify. The government said it intends to present a rebuttal case.
We’ll return to court Monday, July 15, at 3:00pm ET, for the parties to argue the scope of the government’s rebuttal case and the defense’s motions to dismiss charges. If there’s a rebuttal case, that would then start next Thursday. If not, closing arguments would begin next Tuesday.
The photo above is by Clark Stoeckley. You can order his book, The United States vs. PFC Bradley Manning: A GRAPHIC ACCOUNT FROM INSIDE THE COURTROOM by clicking here.