04/10/13 – Yochai Benkler – The Scott Horton Show

by | Apr 10, 2013 | Interviews | 3 comments

Yochai Benkler, Professor for Entrepreneurial Legal Studies at Harvard Law School, discusses his article “The Dangerous Logic of the Bradley Manning Case;” his upcoming expert testimony in Manning’s court martial; why government whistleblowers/leakers are all but extinct; the government’s unprecedented interpretation of “aiding the enemy;” and the threats against our First Amendment protections.

Scott Horton Interviews Yochai Benkler
April 10, 2013

Transcript (page down for the audio)

Scott Horton: All right, so welcome back to the show. I’m Scott Horton and our first guest on the show today is Yochai Benkler. He is a Professor for Entrepreneurial Legal Studies at Harvard Law School and is a faculty co-director of the Berkman Center for Internet and Society. That sure sounds interesting. Welcome to the show. How are you doing?

Yochai Benkler: Fine, thank you. How are you?

Horton: I’m doing great. Appreciate you joining us today, and appreciate you writing certainly the most valuable thing I’ve ever read in the The New Republic, maybe the only one, but, um, great article here, ‘The Dangerous Logic of the Bradley Manning Case.’ And first of all here, you’re an expert witness in the Bradley Manning hearings, is that correct?

Benkler: Yes, that’s true.

Horton: And on what questions or subjects?

Benkler: I am going to testify on how a reasonable person at that time would have perceived WikiLeaks and essentially seen WikiLeaks as one of the small new media organizations, as part of the media ecosystem, rather than as anything that could plausibly be called the enemy.

Horton: So, in other words, even though a lot of very negative things have been said by American officials and politicians and media sources distancing themselves, or trying to distance WikiLeaks from regular journalism, at the time that Manning did his uploading, he would have had no reason to see them — Mike Huckabee had never called them the enemy before, no one had ever implied that they were anything but a news media organization at that time.

Benkler: That’s basically right. I think what happened is in the years before early 2010, WikiLeaks was relatively small. It was interesting. If you read news reports particularly from the time, which I did as part of a broader research project I did on WikiLeaks that came out not long after the Cablegate story, what you saw was small, hard-hitting, interesting, coming up with leaks from all over the world. It wasn’t particularly U.S. focused. There were stories on election violence in Kenya. There were stories on a Swiss bank using Cayman Islands accounts to hide money. There was a variety of things, including some things related to the U.S., but the overall tenor of the way in which anybody who read the papers at the time would have seen WikiLeaks would be this Little Engine That Could of investigative journalism, much more on the leak and availability side than on the analysis side, but something that also included some level of editorial discretion and authentication, quite clearly in the universe of media. It’s only really after the major leaks of 2010, and particularly after Cablegate, that you saw this massive rising of American officials describing WikiLeaks as the enemy, that you began to see later on press describing Assange as a particularly shady character. This all comes much later in the game and changes quite dramatically over the course of 2010, but that’s not the relevant time when you’re looking at someone’s culpability for something that he did before all of this. For that you need to understand how was WikiLeaks seen at the time.

Horton: And now you’re not conceding that if Huckabee declares Time magazine to be the enemy, that they are now, just that on this very particular case of what Manning, you know, what information he had at the time, he had never even so much as heard WikiLeaks smeared before, basically.

Benkler: Absolutely. There are two separate questions. One is, imagine that in fact you would treat — the New York Times after the story about the NSA domestic surveillance was called treasonous. That doesn’t make it any less the New York Times, doesn’t it make it any less the media. There is the question of the Constitution and the question of whether or not somebody in power says that you are treasonous makes you not eligible for protection. And obviously if you are part of speech, part of the First Amendment protected universe of people participating in the conversation, you are protected if you are part of the press, you are protected by freedom of the press. That’s a separate question from the simple factual question of what was in someone’s mind at the time. And that’s the factual question that’s in some sense the expert part of it. It’s having researched the materials at the time and seeing how the organization was perceived at the time. But these are two distinct questions.

Horton: Okay, now, you say in this article — again, it’s ‘The Dangerous Logic of the Bradley Manning Case’ at The New Republic: ‘The judge, Col. Denise Lind, asked the prosecutors a brief but revealing question: Would you have pressed the same charges if Manning had given the documents not to WikiLeaks but directly to the New York Times?’ And as he said in his statement a few weeks ago where he pleaded guilty to the facts of the case but not the worst of the charges, he actually had approached the New York Times and the Washington Post as well. And then, as you write here, ‘The prosecutor, the military prosecutor’s answer to the judge was simple: ‘Yes, ma’am.’’ If he had uploaded these documents to a New York Times or Washington Post server, it would be the very same case to them. And so what’s the big deal to you there? Why is that so meaningful?

Benkler: You hit the nail right on the head. That is exactly what is so dangerous. In order to make the case of aiding the enemy, the prosecution’s theory is essentially that if you take information and hand it over to any organization that posts it in a form that the enemy can read, you are aiding the enemy indirectly. So for practical purposes, evidence that the Viet Cong read the Pentagon Papers makes Daniel Ellsberg susceptible to aiding the enemy charges. That’s radical. Because essentially in the world as we stand today, any publication is available for anyone to read from anywhere and all enemies always read each other’s news media anyway. So essentially it means that as a practical matter, any leak to the press of material that could be described as helping the enemy to know something makes you liable under this theory for aiding the enemy. That’s radical. That’s not been done before. And that would give prosecutors an incredibly large stick to wield over any whistleblower.

Horton: So, if I understand this right — and, you know, it’s the other Scott Horton that’s the lawyer, not me — but if I understand this right, WikiLeaks is not the New York Times so it’s not protected under the First Amendment, is the government’s theory, but the Times is WikiLeaks, in this sense, and so whistleblowing to them, you know, could be construed as aiding the enemy just as much as leaking to WikiLeaks. So we’ve just taken two big steps down our slippery slope right off the bat here before the trial’s even started, it sounds like.

Benkler: I think that’s exactly right. I think — first of all, I’m happy to talk about why it’s impossible to sustain the position that WikiLeaks is not protected by the First Amendment. I’m happy to talk about that if you want to. But let’s not forget this particular point. The particular point is that on the theory of the prosecution, the enemy is not WikiLeaks, the enemy is Al Qaeda, and communicating with the enemy was posting somewhere that Al Qaeda could access online, and Al Qaeda can read the New York Times and Al Qaeda can watch Fox News and Al Qaeda can watch, can read anything else. So any entity that publishes suddenly becomes a conduit to the enemy, which means any leak the government doesn’t like is potentially a death-eligible offense. We’ve never had anything like this.

Horton: Right. And it’s really — I mean, do I understand it right, that only because they were able to so successfully demonize WikiLeaks and then they can just sort of tar the New York Times with that same brush all of a sudden. I mean it’s unprecedented for them, as you’re saying, to even use WikiLeaks in this way, to say that it’s, you know, some kind of medium between here and whichever basement Zawahiri’s hiding in in Pakistan somewhere, right? But then that counts for the New York Times and the LA Times and The New Republic too, that quickly.

Benkler: So that’s what’s so dangerous about cases that have unattractive facts, or attractive facts, and both sides of any long-term legal constitutional battle know this. People who are trying to bring cases to support different civil liberties make sure to choose the most attractive plaintiff from the perspective of the courts, and prosecutors who try to establish a principle establish it in cases that are the most attractive to the prosecution. What’s happening here is that the prosecution is, as a tactical matter — and I don’t know what’s in their minds, and I’m willing to accept that they are completely well intentioned professionals. That’s not the question. The question is, what as a practical matter is happening, given their prosecution?

And what they’re doing is they’re taking a particular target or conduit, in this case WikiLeaks, and a particular target, in this case Manning, and instead of drawing the circle around them very, very tightly, which they can’t really do, they’re drawing a broad circle that if you slip things out, and instead of Manning you said Ellsberg and instead of WikiLeaks you said the New York Times, all of us would look at it and say, ‘You must be crazy! That can’t be what the American Constitution allows.’ And now suddenly instead of being off the wall it gets to be on the wall. Because there’s this unattractive organization and there’s been so much bad press about it and there are so many documents, suddenly something that would have been completely off the wall as a constitutional matter becomes not crazy.

But the way the law works is, once you establish a precedent, you don’t say, ‘Only when there are unattractive defendants, only when there are unattractive plaintiffs is the law this way.’ You say, ‘I’ll establish the principle. Now I’ve established it. Tomorrow I’ll have a new case, and in this new case I’ll try to see, how is WikiLeaks different than the New York Times?” Well, the New York Times is bigger and has more of a staff. Can that really distinguish? Not really. If Manning would have walked off a base in Oklahoma and handed over his documents to a two-person small paper, would we have said they are less protected by the First Amendment? So it can’t be the size. Maybe it’s because it’s not in the United States? Well, had he handed it over directly to the Guardian instead of to the Times, would we have said that’s not protected? Unlikely. What if it’s somebody without a press card? Well, we have a lot of cases already coming out of journalist’s privilege that says, ‘No, no, no. It’s the substance of what you do, not the press card.’ So it would have been impossible to really limit it to WikiLeaks. And then we turn around and in the next case, the only thing that protects the media and the only thing that protects the leaker is how powerful the particular journal is. If it’s weak — if it’s politically weak, not legally — then, open season. That’s what’s so dangerous about the case.

Horton: Well, and it seems like the New York Times — we were talking about this with Nathan Fuller from the Bradley Manning Support Network the other day, about how the major papers are basically just throwing Manning to the wolves. It seems like their strategy is to go ahead and go along with the government’s appeal that WikiLeaks is somehow different from them so that they can spare themselves. Rather than sticking up for WikiLeaks to protect themselves, they’re going to abandon WikiLeaks and Manning both to protect themselves. Nathan said it’s just him and Kevin Gosztola from Firedoglake and, I’m sorry, the woman’s name, I forget it, but this one new independent blogger covering the Manning case [Alexa O’Brien], they’re the only journalists there, three bloggers, covering the Manning case.

Benkler: So, I appreciate and respect the pain and the work that people are putting in to support Bradley Manning, but I think it’s a little dangerous or an overstatement to think that everybody in the mainstream media is just leaving Bradley Manning under the wheels. I think it’s important to press for more coverage. I think it’s important to bring them onboard. You know, the New York Times about a week and a half after I put in the piece in The New Republic, published an op-ed of mine together with Floyd Abrams, who’s come out publicly in the Wall Street Journal against WikiLeaks and against Manning, nonetheless saying, ‘This is crazy. This aiding the enemy is unjustified.’ Bill Keller published an op-ed in the Times also, begrudgingly. He was the first and foremost among those who painted Assange into an ugly corner, but nonetheless accepting that WikiLeaks was entitled to First Amendment protection and that aiding the enemy is a completely unjustifiable assault. I think it’s very important to keep the pressure on, on traditional media, to keep talking about this, to keep sending reporters, but I think it’s something of an overstatement to say that they’ve completely walked away from it. The New York Times Public Editor pressed them on the issue of not reporting on the case and then they came back and did report on the case. In fact, the most prominent place where this exchange of Denise Lind with — of the judge with the prosecutor, where it was reported was actually in the New York Times itself.

So I spent a lot of time in the big piece that I did on WikiLeaks a couple of years ago explaining how the Times worked to demonize Assange, and they made some very bad mistakes, but I think it’s an overstatement to say that they’re walking away from Manning, and I think it’s important to put pressure but also encourage them and the other major media outlets to report, to cover and to make common cause, because they have to understand that they are next.

Horton: Yeah. Well that’s the thing. I guess I’m just angry because they ought to be — I mean, the New York Times is the New York Times! They’re the most important newspaper in the world, and they ought to be his greatest champions. They ought to have him on the cover and be writing op-eds in his defense above and beyond what anyone else in the world is doing, and anything less than that is treason to me. But — or you know what I mean, little T treason, not the legal kind. So it’s the shadowcast, you know, what they ought to be doing versus what they are doing.

But now let me ask you this, on the aiding the enemy thing, are they specifically citing, for example, the Afghan war logs or something? Because what I’m wondering is, if the only thing he had leaked had been some State Department cables about, you know, embarrassing things about Hillary Clinton’s relationship with the Japanese or the Peruvians or something like that, are they still going to say that, ‘Well, if it says Confidential and/or Secret on it, then that means it should have never been in the public domain, and that means that somehow it could cause Zawahiri to be comforted.’ You know what I mean?

Benkler: One of the the things that’s troubling about this case is the extent to which it is secret and classified, so that actually we have relatively limited access, much more so than usual, even in court martials, relatively limited access to the particulars of what the government is arguing. We see a little bit from Manning’s lawyer coming out on his side of the materials, but we actually know very little about what the details of the claims of what particular pieces were transmitted and to whom. There is a little bit of external reporting, but the reality of the matter is, we don’t even know publicly what it is that they’re going to put forward. They put forward a very, very long list of their own witnesses in which I assume they will also try to show that he caused real harm and what it was. At that point, those who will have sufficient security clearance to be in the trial will actually find out what the materials are, and those who won’t won’t. But this is another troubling, a distinct troubling aspect of the case. But the reality is, we don’t at the moment know what discrete pieces of information were supposedly so damaging, to what extent it was the war logs, to what extent it was the cables, which of them. We have relatively vague and broad public statements, but no real knowledge. So I think it’s a little early to push on that.

Horton: But legally speaking, they’d better have something, not just, you know — again, like if it was just some cables about Peru or whatever, they would not be able to just stretch that and say, you know, ‘Leaking in general undermines our efforts, you know, in a very general way.’ They would have to have something that could make the Taliban make a different decision about which raid to make one day, or something, something, right?

Benkler: One assumes so, and don’t forget, it’s not enough to make the allegation, one has to persuade a judge, who has her own sense of her professionalism and her own sense of the role. So presumably their professional prosecutor is able to gather materials that would allow them to make a case to an equally professional judge. We just don’t know the details.

Horton: Mmhmm. And then, also, in America we never have had an official secrets act, but then again, so, I guess what that means, compared to Britain, that means is if you’re a government employee and you liberate documents for the people, you may very well be in violation of your contract that you signed with the government, but you’re not really in violation of the criminal law for doing so, at least up until this point, in most cases. Is that correct? Or what is the difference between having an official secrets act or not? It sort of sounds that we’ve had a de facto one anyway.

Benkler: So I think this is one of the major concerns well beyond this case and going more generally toward the series of prosecutions of whistleblowers by this administration. And that is that, because the Espionage Act, which wasn’t really used since World War I in the way that it’s been used in the last few years to crack down on whistleblowers to the press, and not only to the press, but to crack down on whistleblowers more generally, because of this particular prosecution and the extreme use of aiding the enemy, and also because essentially there is enormous prosecutorial discretion, so you don’t go after leaks that are supportive of the administration but you do go after leaks that are embarrassing, that’s effectively creating a situation where prosecutors have enormous sway to decide who to go after and who not. And when the law is so vague and your claim is that essentially by getting something to publication you’re aiding the enemy, de facto you’re saying, ‘You cannot speak because it harms national security,’ and we do it in a way that is much more constraining than the constitutional system requires. Because remember we’ve had — it’s not as though national security is suddenly threatened today more. We had a Cold War where we were on the verge of nuclear mutually assured destruction, we had a World War II, and we had a World War I, and we’ve progressed. We started with World War I putting in prison people who put out movies that the administration didn’t like, and we went through World War II and some of the constraints there. We went through McCarthyism. We learned something over the course of the century, and we ended up with a fairly strict constraint that only if you have actual actionable information that’s directly dangerous to troops on the ground, that’s when you can restrain someone. What’s happening here is that criminal law is brought in to restrict speech in this way. That’s something that we’ve seen in other countries, as you say in the UK with the Official Secrets Act. We have not had it here, and we are at real risk of suffering from it again.

Horton: Well and it sounds like if we’re on that slippery slope back to World War I days and that means you wouldn’t even have to have something secret, right? Say if I just wrote an Antiwar.com article that was so earth-shatteringly great that it just changed the mind of the American people and they decided they were no longer in favor of having foreign bases around the world and waging war in the Middle East, for example, and the government, say for example, really disagreed with that and they decided I was undermining their war effort, that they have determined that all these things that they do are necessary for our security, and if I’ve convinced the entire American people to turn against them and make them stop, then I’m a threat to security too, right? And that was the theory that Wilson used when he jailed Eugene Debs and the guy that made the movie about the American Revolution, as you point out in your article (laughs), a movie that portrayed the British bad in the Revolutionary War while we were their allies in World War I.

Benkler: So certainly the First Amendment has come a long way in the last 90 years. Ninety years ago we didn’t have a First Amendment that we recognize it today. The United States has moved a long way. The U.S. has moved a long way. I think we are very far from a moment at which the government cranks down on someone who disagrees with it in this way. But, it depends on how extreme, and in particular how extreme in connection with Islamic radicalism, you are. Because there, using some aspects of material assistance to terrorism, we actually have seen a crackdown on what is essentially speech. And so that’s, that’s the one direction where we could see something along the lines of the World War I approach.

But I think realistically, if we’re talking about leaking, if we’re talking about Bradley Manning and similar national security leaks, simply disagreeing is not going to fall within these tools. But we don’t have to go there to understand how dangerous. Because here’s the thing. We live at a moment where there’s so little transparency, there is so little disclosure, where there is increasing classification of materials, where there is increasing resistance to Freedom of Information Act requests, where there is crackdown on all sorts of actual disclosure in national security such that increasingly it’s only the occasional whistleblower, it’s only the occasional leak that gives us big insights into what’s going on. Even when we have formal processes like the Senate investigation into the torture program and its results. So you have a program that is considered by the senators who participated in it as probably the most important Senate oversight practice ever, and yet none of us can read it because it’s classified. So when you have this kind of overclassification and massive secrecy — in courts we see the government implementing the state secrets doctrine. With the Senate they only allow them to do oversight if they keep it secret so we don’t find out about it. In that situation, leaking becomes in some sense our safety valve of last resort, and implementing this kind of truly terrorizing law that would say, ‘At our discretion, if you leak to a newspaper, we could go after you for a death-eligible offense,’ that’s just too much.

Horton: Well, and you know when this whole thing broke, investigative reporters’ sources started drying up. I know from secondhand information anyway, being a radio show host and being married to an investigative reporter, that once they started really clamping down and charging people under the Espionage Act, a lot of people decided that it was in their best interest to go ahead and not take the risk anymore. That chilling effect was wide and deep and immediate.

Benkler: Well, wouldn’t you?

Horton: Yeah, well I wouldn’t work for the government in the first place, but yes, I would certainly be scared to death. I mean, nobody wants to go to prison. You only got one life unless you’re a Hindu. So. Yeah, exactly. And with that I guess I’ll let you go. Thank you very much for your time. I really appreciate it.

Benkler: My pleasure. Good to talk to you.

Horton: Everybody, that’s Yochai Benkler. He is a Professor for Entrepreneurial Legal Studies at Harvard Law School and co-director, faculty co-director, at the Berkman Center for Internet and Society. We’ll be right back after this.


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