Professor Yochai Benkler. Image by C. Stoeckley.

Harvard Professor Yochai Benkler, a scholar who wrote a widely cited paper that examined how WikiLeaks fits into what he calls the networked fourth estate, took the stand to testify in the trial of Pfc. Bradley Manning. The military judge, Army Col. Denise Lind, determined he was qualified to testify as an expert on the networked fourth estate and to share his views on the nature of WikiLeaks and how it is a legitimate journalistic organization.

The government objected to him being qualified as an expert, but the judge said the scope of his expertise went to developing technology and news ways of communicating and how WikiLeaks fit into this development. It also objected to testimony on how WikiLeaks was viewed generally when it released the information Manning is charged with disclosing and on United States government reactions to the organization’s publishing of the information.

The defense responded to the objections by pointing out that, in the evidence showing Osama bin Laden sought copies of documents published by WikiLeaks, bin Laden actually asked for the documents because the government’s “rhetoric against WikiLeaks [made] them appear to be an enemy.” That rhetoric is what drove “the enemy to go look at WikiLeaks.”

Bin Laden did not want copies to necessarily use for planning attacks because of the “actual publication of information,” according to the defense. He wanted to see what had been responsible for these allegations that WikiLeaks’ publishing of documents would be helpful to America’s enemies and so he asked to see copies of military incident reports released as the Afghanistan War Logs and copies of US State Embassy cables.

Manning’s defense attorney, David Coombs, told the judge this is important because it shows “how a journalistic organization is basically and especially in this country” changed from “being a legitimate journalistic organization to being a terrorist organization based upon the response of the government.”

The defense’s position, Coombs explained, is that “anyone looking at WikiLeaks prior to the charged releases, including the 2008 document produced by the Army Counterintelligence Center (ACIC) [on WikiLeaks as a possible threat], would have viewed WikiLeaks as a legitimate news organization.” Only arguments questioning that begin “after the releases happen and the government’s ultimate response.”

This evidence “rebuts the idea that Manning would had actual knowledge” that his disclosures would “aid the enemy.” Also, it rebuts the idea that he engaged in “any wanton conduct” by choosing to release to a news organization.

“The actual release was wrongful, and he’s accepted responsibility for that,” Coombs stated. “But, it was not wanton.”

The government contended that the only testimony that would be relevant from Benkler would be what Manning could have known prior to his pretrial confinement. That would be relevant to his knowledge on what WikiLeaks did or did not do. It claimed it was only going to go off what was in the ACIC report when focusing on WikiLeaks.

“Government doesn’t intend to argue about what WikiLeaks did or did not become,” Maj. Ashden Fein declared.

The judge ultimately did not find the government’s objections to be legitimate. Benkler proceeded to give thorough testimony very helpful to the defense.

Benkler delved into the history of WikiLeaks and how media coverage began to shift and alter the public’s perception of the organization. He also was asked if WikiLeaks was connected with any terrorist organizations. He said no.

He was asked if, prior to April 2010, the organization had connections with terrorist groups for the purpose of providing information to terrorist groups. Benkler said no.

Coombs asked Benkler about the ACIC report. He was allowed to give his expert opinion on the report and testify that he found no evidence in the report that enemies used the WikiLeaks website. He only found  ”theoretical statements about how the enemy could come and use” it with a particular emphasis on “how the enemy could use it for propaganda to inject false information.”

He called the report “relatively mediocre” (something the judge objected to hearing in the courtroom). Coombs informed the judge the position of the defense was this is not intelligence.

The judge allowed Benkler to testify that the report was based on open source information. “Many of the key judgments were speculative and were not supported by evidence in the document itself. It included as a core statement both in executive summary and body an assertion that WikiLeaks does not engage in any authentication,” which was already known at the time to be “simply mistaken” because the organization was engaged in authentication.

Cpt. Joe Morrow, a military prosecutor for the government, asked Benkler about how he had characterized the government’s reaction to WikiLeaks as “sort of overwrought.” Benkler replied that overwrought was the term that then-Secretary of Defense Robert Gates had used and he “thought it was a remarkably well-placed assessment.”

Benkler added, when asked, that he had spent a “considerable amount of time reading about” WikiLeaks. These assertions that WikiLeaks editor-in-chief was a high-tech terrorist organization (by Vice President Joseph Biden) or that it was a terrorist organization was “incongruous with everything I had done in my research.”

Asked further questions by Morrow, Benkler continued saying he had cited Gates because it was “important to see even someone within the administration, who had responsibility of the area, could see how implausible the response was.” One “didn’t have to be an outsider.” One could “sit on the inside and see the response was implausible.”

Overall, Benkler’s presence on the witness stand directly addressed the government’s theory that, by giving information to WikiLeaks, Manning gave information to the enemy.” And, as Coombs said, it went to how the government has charged Manning and sought to portray WikiLeaks has an organization that would give information to the enemy and not a journalistic organization.

In fact, Benkler testified on the stand that in the ACIC report it had been recommended that, as a core tactic to undermine WikiLeaks, the government target whether WikiLeaks could be trusted or not as an organization. This was because the government concluded it would be hard to suppress the information that WikiLeaks published.

The government realized it needed to increase the fear or constraints on potential leakers. Part of that, Benkler suggested, was to treat Manning badly while he was in prison to deter future whistleblowers.

Essentially, the idea that WikiLeaks is not a legitimate journalistic organization or never was a legitimate journalistic organization committed to advancing the cause of transparency but rather an anti-American organization that had a website, where the enemy could go to for US government information, is purely government propaganda.