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Harvard Professor Testifies Manning Disclosures are a “High Point” in Journalism History

Alex Constantine - July 11, 2013

Praise for WikiLeaks as Manning Defense Rests

FT. MEADE, Md. (CN) - Pfc. Bradley Manning's disclosures to WikiLeaks mark one of the "high points" in the history of journalism, a Harvard professor testified Wednesday as the last defense witness in the landmark court-martial.

Manning has freely admitted his responsibility for the largest intelligence leak in U.S. history: a more-than-700,000-file stash of battlefield reports from two war zones, diplomatic cables and footage of airstrikes on civilians.

Prosecutors claim that the 25-year-old soldier "aided the enemy" and committed espionage, theft and computer fraud through these disclosures.

Harvard professor Yochai Benkler countered that the soldier enriched the "Networked Fourth Estate," a phrase that he coined in the subtitle of his paper, "A Free Irresponsible Press."

The last witness to testify for the defense, Benkler is considered an academic authority in the evolution of media in the age of the Internet, and the most widely cited scholar on WikiLeaks.

His concept of a "networked" Fourth Estate describes not only how traditional journalism outlets use online resources, but how the Internet forced the newsgathering process to evolve.

The military judge, Col. Denise Lind, admitted him as an expert on this topic, for the first time in U.S. jurisprudence.

Benkler testified that neither Manning, nor anybody else, would have had any reason to consider WikiLeaks a terrorist-enabler before overheated rhetoric against it came from Washington.

In its early days, WikiLeaks set its sights on authoritarian regimes, publishing about the Chinese government's use of "Green Dam" software, Benkler noted. The program had been billed as anti-pornography software, but it also censored political dissent.

Other early scoops included evidence of a tax shelter scam at the Swiss bank, Julius Baer; toxic waste dumping off the Ivory Coast by Trafigura, a Dutch multinational corporation; and extrajudicial killing by the Kenyan government.

The latter expose won WikiLeaks an award by Amnesty International and solidified its reputation as a whistle-blowing website, Benkler said.

As the accolades poured in, a Pentagon counterintelligence official wrote and published a paper, "WikiLeaks.org - An Online Reference to Foreign Intelligence Services, Insurgents, or Terrorist Groups?"

Prosecutors argue that Manning, who leaked this document, knew about the organization's supposedly secret nature and threat.

But Benkler said that even the paper's author, Michael Horvach, never answered that question. The paper meanwhile describes WikiLeaks and its employees in traditional journalistic terms like "staff writers," "editors" and "analysis of documents," the professor noted.

"These are the things that are at the very core of investigative journalism," Benkler said.

Horvach's concern about WikiLeaks, moreover, stemmed from the "false, simply mistaken" assertion that it does not authenticate its documents, Benkler added.

In reality, verification procedures at WikiLeaks have differentiated it from short-lived competitors like LiveLeaks, Benkler said.

Noting that WikiLeaks never issued a significant retraction, Benkler quipped: "Dan Rather, I'm sure, would like to say the same thing."

Perhaps the most prominent of the Manning's leaks is the footage of an Apache helicopter's footage of a Baghdad airstrike that killed two Reuters employees, which WikiLeaks titled "Collateral Murder."

By unveiling this at the venerable National Press Club, WikiLeaks chief Julian Assange signaled "a bridge between new media and old media," Benkler said.

The professor pointed out that The New York Times, the Guardian and Der Spiegel, a German daily, coordinated with WikiLeaks in reporting on the Afghanistan and Iraq "war logs."

This marked "a clear distinct component of what in the history of journalism we see as high points, where journalists are able to come in and say, here's a system operating in a way that is obscure to the public and now we're able to shine the light," Benkler said. "That's what WikiLeaks showed how to do for the networked public sphere."

Around this period, statements by government officials "began to shift publicly" against the website. Then-Joint Chiefs of Staff Chairman Mike Mullen accused WikiLeaks of having blood on its hands, and Vice President Joe Biden called Assange "a high-tech terrorist."

Newspapers that published the scoops meanwhile mostly avoided such condemnation.

"The wrath was reserved purely for WikiLeaks," Benkler said.

With "Cablegate," a compendium of more than 250,000 diplomatic cables Manning leaked, the rhetoric continued to heat up. One Fox News host called for the government to "illegally shoot" Assange, and New York Times columnist Thomas Friedman ranked "super-empowered individuals" like the WikiLeaks chief as a threat on par with China.

Some level heads remained as then-Defense Secretary Robert Gates called official reactions to the leaks "fairly significantly overwrought" in a letter to Sen. Carl Levin, D-Mich.

Benkler called the remark "an extraordinarily well-placed assessment."

Manning's lead attorney, David Coombs, said it was the bluster from Washington that put WikiLeaks on al-Qaida's radar. U.S. officials found Afghan war logs and diplomatic cables during the raid on Osama bin Laden's compound in Abbottabod, Pakistan, trial evidence showed.

With its major leaker facing the potential of life imprisonment, and its editor-in-chief holed up in the Ecuadorean embassy in London, Benkler noted that the organization's fate is uncertain.

"WikiLeaks might fail in the future because all of these events, but the model of some form of decentralized leaking that is secure technologically and allows for collaboration among different media in different countries - that's going to survive, and somebody else will build it.

"But WikiLeaks played that critical role of that particular critical component of what muckraking and investigative journalism has always done," he said, ending his direct examination.

One of the prosecutors, Capt. Joe Morrow, acknowledged that Benkler was a "distinguished academic and clearly a very smart man" as he tried to undermine the methods that behind the professor's conclusions.

In his research, Benkler said that he perused "at least 700 articles" about WikiLeaks that he found on WestLaw.

When Benkler published a draft of "A Free Irresponsible Press" on his website, Assange sent him an annotated version with comments, information and requested corrections. Benkler said he followed every lead, without taking any annotation at face value.

Morrow suggested that Benkler did not apply enough skepticism to allegations of Manning's solitary confinement in a Marine brig in Quantico, Va.

Manning's nearly nine-month stay at Quantico, from July 29, 2010, to April 19, 2011, provoked international attention, as reports trickled out that he had been forced to spend more than 23 hours a day alone, ordered to strip and denied permission to exercise in his windowless, 6-by-8-foot cell.

Col. Lind found before trial that Manning had experienced "unlawful pretrial punishment," but she refused to define his isolation as "solitary confinement" because it had been intended for his protection.

Benkler declined to be drawn into that debate when asked his view of the subject today.

"That was the information that was then available," he said of Manning's isolation.

Morrow also tried to make Benkler budge from his characterization of WikiLeaks as a legitimate and effective journalistic enterprise. Traditional critics of the website and its employees tend to cast them as activist, anti-secrecy absolutists that dump documents without regard to their individual news value.

The prosecutor touched upon all of these points, which Benkler rebuffed in turn.

Though he agreed there was a difference between journalism and activism, Benkler called reporting a "behavior" rather than an identity, and said that The Nation and Fox News push points of view while also presenting the news.

When Morrow asked whether journalists encouraged anonymity with their sources, the professor pointed to "Deep Throat," who remained unknown to the Washington Post's Bob Woodward even while providing clues to the Watergate puzzle.

The reception of the Iraq war logs also showed the news value to documents leaked en masse, Benkler added, pointing to a nonprofit organization that used them to challenge official estimates of casualty counts.

Morrow pressed that Assange, unlike a traditional editor-in-chief, used the language of espionage in describing the newsgathering process by calling his outlet "The People's Intelligence Agency," and speaking of "intelligence sources" and "outing a spy" in the organization.

Taking the remarks less literally, Benkler said that individuals within organizations vary in their conduct and their rhetoric.

The prosecutor finished with an attempt to call the professor's neutrality into question. "Your views on the court-martial are very well-known," Morrow said.

Benkler co-authored a New York Times op-ed "Death to Whistle-Blowers," and wrote "The Dangerous Logic of the Bradley Manning Case" in The New Republic.

On redirect, Coombs had Benkler explain both pieces, which took issue with unique charges against Manning. The professor noted that the potential capital offense of "aiding the enemy" has not been charged for a leak to the press since the Civil War, and carries the specter of life imprisonment over the heads of future journalism sources.

The defense rested with Benkler's testimony. Proceedings resume next week with oral argument on Manning's attempt to dismiss several major charges, including aiding the enemy. Prosecutors revealed plans to present a rebuttal case before the parties move on to closing arguments.

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