On the Record: Benkler on NSA, the Manning Trial, and the Future of Journalism

From the Print Edition / Interview   /   October 21, 2013  / 

Photo by Jonathan Nomamiukor

ON THE RECORD: Can you discuss the Constitutional ramifications of programs like the NSA and the NDAA act?

YOCHAI BENKLER: The thing to understand about the NSA surveillance program is that it represents a fundamental inversion of the model at the heart of the fourth amendment: the idea of privacy as a check on government power. We use the term privacy and sometimes we mean vis a vis commercial firms and sometimes we mean vis a vis the state. In either case, they are ways of checking power — either the power of commercial power or the commercial state. In the fourth amendment, the core idea is that the state shouldn’t know too much about us.
Large amounts of social behavior and activity need to be outside the gaze of the state. What does that mean? It means that essentially we believe that the state needs to be blind to much of what goes on because we can’t rely on the state perfectly to apply the laws always at the right place at the right time at the right measure with the right level of intensity for all conditions. Instead we have a large opacity and only when the state has reason — articulable reason in advance to look at something specific – do we let the state peek, look inside, and do something. The reason is that law by necessity will be vague, incomplete, there will be gaps, there will be conflicts, there will be ambiguities, and there is a lot of discretion. And in that discretion is where abuse comes. So how does that connect to the question of 5th amendment and due process and particularly vagueness? Nowhere is that clearer than in the material support statute.

OTR: Can you elaborate on your last point and discuss the Holder v. Humanitarian Law Project ruling?

YB: Material support is so broad and terrorism itself is such a broadly defined set of activities that there’s an entire population of potential subjects that may or may not fall close to the line that are now also under the perfect gaze of the state. When the state is nearly omniscient and has in its back pocket a set of vague and broad laws – be they terrorism related like material support or computer abuse related like computer fraud and abuse act – this provides enormous freedom of action for prosecutors, for investigators, to go after people in ways that are overzealous, in ways that are abusive, in ways that are simply inappropriate. So we see from the banality of the analysts stalking ex-lovers to the amazing report the ACLU put out in September of FBI abuses in pursuit of domestic advocacy groups.

We see enormous scope in these vague laws for abuse. And that enormous scope is then enabled by complete visibility of the state onto the behavior. We’re continued to be told by advocates of the program that with the right levels of the rules, with minimization to the left and FISA court to the right, we’d be able to replicate the protections we had on the fourth amendment while we have the information as opposed to without having the information. We’ve seen repeatedly over the last dozen years that these rules fail. They don’t actually deliver. And they don’t deliver because they represent a fundamental conflict between the commitment of the fourth amendment to keep the state relatively blind and the commitment of the NSA and its professional, competent, honest staff to try to get universal visibility so they can deal with the emergency they perceive as overwhelming.

And its this fundamental contradiction between the sense of urgency and emergency of people on the inside and the commitmentof the constitution to keep the state blind in order to keep it limited that is causing this series of failures. And that’s why we also need the solution to be one where we basically step back from the war constitution rather that we tweak the institutions a little bit to the left or a little bit to the right.

I think one of the things that has become very clear after 9/11 is that America responded with a panic response. With a response of a kind that you see someone fighting for their lives, throwing aside all rules and trying to do something. And in the first instance this may have been understandable. The torture program was the most extreme, violent program of that lapse. Formatively at least we’ve abandoned it. The system of indefinite detention that we’ve retained in the teeth of the fact that fundamentally you really cannot justify continuing to hold people forever under an indefinite war that has no boundaries and has no time limit and yet we’re stuck with it. We see doctrines develop about the unilateral power of the Presidency to initiate war like behaviors – the drone program, the development of secret law whether it be around surveillance, whether it be around targeting of American citizens, all basically building on the notion that the American public probably can’t handle the politics necessary. But in reality what this does is that it takes the emergency immediate response and turns it into a stable constitution.

And when you see in area after area, whether it’s surveillance or drone targeting of U.S. citizens, or indefinite detention, or material assistance as it is applied broadly to practically all Muslim communities. You see a series of events that if you step back for a moment and you don’t deal with the particulars, “oh was it legal under this subsection or that subsection,” but you step back for a moment and you say “stop… is it really reasonable for America to think that forever you can have a system of indefinite suspension somewhere. We can have a system of executive branch only-decision to kill Americans. We can have a system that applies to things that are basically straight speech and assembly counting as forms of terrorism in America by Americans with no real direct or imminent threat simply because of the potential that maybe they’ll help a terrorist organizations shift resources somewhere else – even a terrorist organization that is not really directed at the U.S. but at some remote ally. That is what was so powerful about humanitarian law project. There you have organizations – one was Kurdistan Workers Party, the other the Liberation Tigers of Tamil Eelam, neither of which had anything to do with the United States. You had an organization whose sole role was to teach them peaceful dispute resolution and interacting with U.N. aid organizations. That was sufficiently close to terrorism that the Supreme Court held that they could be within the material support statute. That’s not really an American constitution we can recognize.

OTR: Can you speak a bit about how you came to be a key witness for the Manning trial?

YB: I came to participate in the Manning trial initially because I was working on the future of journalism as a broad research question. Journalism had undergone similar discontinuities to those that we have already seen
in certain branches of entertainment, in software. Decentralization complimented by multiple business models, and organizational models, both social and commercial. And wikileaks was a particularly interesting example – one that I agreed to write a piece for the CL-CR journal. And then the embassy cables broke out, the attack on wikileaks on multiple dimensions – on their storage, communications, on their payments systems occurred, and I spent a lot of time writing up an article on wikileaks.

At the time I was primarily focused on the journalism side, not the whistleblowing side. Then when I saw the treatment of Manning during the first year of his imprisonment, I organized a letter of 300 professors protest- ing the conditions of his incarceration. In that context, his defense turned to me asked me if I would testify… if I could testify particularly on the context of aiding the enemy… on what Wikileaks was like and what the nature of the fourth estate had become. Because what was important at the time was what Manning did in regard to aiding the enemy charge was what any other whistleblower or leaker will do: turn to the press… and that there was no reasonable distinction to be made between Manning and someone who had leaked to the NY Times. And this was important because it was important to establish that the aiding the enemy charge here was essentially leveled under conditions that would’ve made it available as against any leaker, certainly against any leaker subject to the military code, but aiding the enemy is not necessarily limited to those subject to the code.

So I spent a bit of time preparing and the testimony itself was interesting. It was a challenging four or so hours of back and forth, particularly with the prosecution. But I think it allowed me to make very clear that a reasonable person looking at wikileaks from the prospective of late 2009, early 2010, would have seen an edgy online journalism source that had broken dozens of stories. Many of which, most of which, had nothing to do with the United States. They would have seen an organization that even the Pentagon’s own report on it kept using the terms “correspondent, journalist, editor, opinion piece,” with regard to pieces on Wikileaks. And when they challenged wikileaks it was never on accuracy but rather on the substance of whether they agreed or disagreed with the argument. So even a reasonable reader of the Pentagon’s memo itself on wikileaks would have come away understanding that this was a new media organization. And that was the substance of the testimony.

OTR: Could you discuss the role New Media plays in the 21st century and the future of Journalism?

YB: I think a core feature of network economy is the radical decentralization of the capital necessary to produce, process, and store and communicate information, knowledge and culture. This is true for software, it’s true for music, it’s true for video, and relatively later in the game it became true for journalism. We now see a wider array of strategies being deployed to provide the basic thing we call “the news of the day.” Some of it is purely social and voluntary – we see this when people capture videos of riots. We see this when people capture abuses by police in Occupy or in Tahrir Square. Some of this happens with people who are politically motivated, engaged with people who are particularly motivated and engaged in a recreation of the party presses like the Daily Cause or Town Hall. Some of it is small-scale commercial like snopes.com or talking points memo where you essentially have a very small scale organization doing an outsized job able to sustain itself on a low cost low returns model rather than the very high costs, high return model of the traditional media. And some of the traditional media, like the Times, continue and grow and reach to an international English reading audience. Perhaps in this regard the most interesting example is the Guardian which moved from being a respected UK publication into being one of the top ten news outlets read in the United States, with many more readers in the U.S. than in the U.K.

So the network fourth estate really now combine all of these components put together. We see organizations anchored in academic institutions like factcheck.org or media matters that are focused specifically on fact checking and media criticisms. We see experts who may be academics or may be in think tanks creating outlets that become much more professional. You can agree or disagree with them.

So that’s what we’re seeing – we’re seeing the emergence of a new multidimensional, multi-type of organization and motivation structure media ecosystem. But we also see traditionalists hanging on to the old way of doing things and refusing to recognize the value of the new. And the place we see this the most clearly is the reporters privilege debate and the questions over reporters privilege now in congress where we see
the traditionalist hanging on for dear life to the concept that you can only give reporters privilege to people who make a living or somehow make money off of journalism and refuse to recognize the incredibly important role that amateur journalists and people who are not journalists but nonetheless report on specific issues and become major experts play. There’s no question for example that Alexa O’Brien played a larger role in reporting on the Manning trial and provided more professional and thoughtful and really deep understanding of the case than any of the traditional media because she was there following it the entire time. She understood the context. And any law or framework that ignores the journalistic role that she played in covering that case simply misses the critical component of what journalism is today.

OTR: Could you discuss some of the pressures modern day journalists face in this country?
YB: The most important pressures that American journalists face today has to do with national security reporting and the efforts to prevent public exposure and public criticism of the war constitution and the way that it’s applied. Whether it be on drone strikes, whether it be on indefinite detention, or mostly what’s on everybody’s mind today: surveillance. Primarily that means the question of the investigations of journalists —We saw the public outcry over the subpoenaing of phone records of the associated press, over the affidavit claiming that that fox news reporter Jamie Rosen was a coconspirator in espionage act violations, and we saw the threat of incarceration and subpoena for James Risen over the leak. So the question then becomes how much we actually protect journalists and their sources in the national security area from the state and its power to prosecute them and their sources. And the question is how broadly that protection covers. And the second question is what we do with whistleblowers and whether we give any protection to whistleblowers and if we do whether we limit it to traditional media. What we are seeing today in the efforts in congress is a relatively strong emphasis on defending traditional media although not as much as I think we need.

We are also seeing a willingness to throw the online journalists who are not fulltime journalists under the bus. We see this very clearly in Senator Feinstein’s attempt to limit the Schumer bill. We see it very crisply in the house bill that explicitly requires that you make money to be protected. Nonetheless both the Schumer bill and the bill in the House have very strong components that if you do a little mix and match could actually provide coverage to journalism as a function. The critical thing to understand is that journalism is no longer an organization or business model. Journalism is a social function. If you collect news that is relevant to the public and disseminate it with the intent to disseminate it to the public you are fulfilling the function of journalism. It is that social function that the first amendment freedom of the press protects. It is that social function that the law needs to protect. It is that social function that we need as a democracy. If we take some portions of the house bill and we get rid of some limitations of the senate bill we can have a truly powerful bill that will cover all acts of journalism. Acts of journalism rather than journalists: that’s what we need to protect. We have the tools, it’s not clear that we have the political will. We need to keep pushing for protection for journalism as a function rather than journalism as a class of paid professionals.

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