Professor Yochai Benkler. Image by C. Stoeckley.

The defense in Pfc. Bradley Manning’s trial was able to successfully qualify Professor Yochai Benkler of Harvard University as an expert on the “networked Fourth Estate,” who could discuss research he had done on WikiLeaks and how it fit into the “networked Fourth Estate.”

What this meant was the defense could present testimony on how WikiLeaks is, in fact, a legitimate journalistic organization and not some kind of criminal enterprise worthy of the wide government investigation, which the United States Justice Department launched into the organization after it released the information Manning is charged with disclosing.

It was incredibly significant as it gave the defense the ability to explicitly challenge the charge of “aiding the enemy”—that Manning would have known when he provided information to WikiLeaks that he was giving information to the enemy.

The defense was also able to challenge another charge—that he “wantonly “caused “to be published on the internet intelligence belonging to the United States government, having knowledge that intelligence published on the internet is accessible to the enemy.” If WikiLeaks was a legitimate journalistic organization, as Benkler testified in thorough detail, it would not have been “wantonly” to provide information to the organization.

But, in terms of increasing public understanding of this organization and how it fits into journalism in the 21st Century, the new information economy, there was no person better than Benkler to put on the stand to contextualize and demystify this organization, which prosecutors had sought to present as an organization committed to exfiltrating state secrets of governments through insiders in agencies, institutions or corporations.

What is the “Networked Fourth Estate”? 

“The networked Fourth Estate is the set of practices, organizing models technologies, that together come to fill the role that in the 20th Century we associated with the free press,” Benkler explained. “Essentially, the cluster, if we could, of the Fourth Estate as the way in which the press provides a public check on the three classes of branches of government. The networked Fourth Estate is essentially the cluster of practices and technologies and organizations that fill that role in the 21st model of network information production.”

Asked by military prosecutor Cpt. Joe Morrow if the “networked Fourth Estate” was really just journalism, Benkler replied, “Mostly it refers to journalism when we’re talking about its role in the construction of democracy.” However, it can also be used to discuss “a cluster of typical organizational changes that are “primarily related to the rise of the internet and have appeared and reappeared and multiple industries over this time have been affected in this form.”

Morrow said he was not sure he understood the “networked Fourth Estate,” what Benkler was talking about. The professor’s intellect was too much for him to handle, but military judge, Army Col. Denise Lind, understood perfectly well what Benkler described.

LIND: Am I understanding you correctly in saying that you’re basically looking at, you know, in the last century traditional news media and the way people got news was through newspapers. Before that, I don’t know, a telegram or something like that or a cable. As technology evolved, now you’re getting more people on the internet that are sharing things?

BENKLER: That’s at the core of it.

Manning’s defense attorney David Coombs asked how the networked Fourth Estate differed from traditional media.

“You see important roles for some traditional media like the Times, Guardian and BBC, but you see them complemented by other smaller for profit organizations,” Benkler answered. One can see non-profit organizations, like WikiLeaks, academics and small commercial outfits “interacting with the large traditional organizations that today create this new model of network journalism.”

WikiLeaks is clearly a part of the “networked Fourth Estate.” For one, it did collaborate with The New York TimesThe Guardian, and Der Spiegel on the publication of information. It also, similar to the rise of prominent bloggers in the 2000s, influenced news with various media organizations feeding off material the organization was publishing to its website.

WikiLeaks as a Journalistic Organization 

Benkler testified, “Based on the research that I have done I see WikiLeaks as an organization that fulfilled a discrete role in network journalism of providing a network solution to leak-based investigative journalism that in the past was done only by relatively large and unified organizations and now could be done in a network mode.”

For example, “If you imagine the Washington Post finding Deep Throat,  creating the conditions of secrecy for the source, and then being able to protect that source, that required a certain amount of heft. If you think of the Pentagon papers, again you receive it, you do the analysis but you also have the money to go and defend it in court.” But, in the “networked Fourth Estate,” there are “a lot of organizations that don’t have the organizational heft to do all of that.”

What WikiLeaks has been able to do is provide “a solution for how network journalism can stabilize leak-based investigative journalism in the face of diminishing” resources in newsrooms. They, according to Benkler, have provided a “discrete but critical component of what in the past was always integrated in a single organization.”

Also, “If you think of journalism from the mentor function is about gathering information relevant to public concern and its dissemination to the public, a lot of these other organizations [that partnered with WikiLeaks] spent the time working both on the relevancy and the dissemination, while WikiLeaks did essentially the gathering, the authentication and the initial selection for dissemination to these further analyses.”

Coombs asked Benkler about a 2008 Army Counterintelligence Center (ACIC) report that explored whether WikiLeaks posed a threat to the United States Army and if it “undercut the determination that WikiLeaks is an investigative journalistic organization.” Benkler did not think it did. “There’s a point at which, for example, the report describes WikiLeaks reaching out to national ground intelligence of staff to verify a particular report regarding the battle of Fallujah and actually says, they had high journalistic professionalism in reaching out to try to assure fair use.”

Manning is charged with releasing this report, and, in fact, in the report, it does acknowledge, that WikiLeaks’ “attempts to verify the information were prudent and show journalist responsibility to the newsworthiness or fair use of the classified document if they are investigated or challenged in court.”

Government’s Effort to Make What WikiLeaks Does Seem Spooky

“In your experience, do journalists encourage anonymity with their sources? What I mean by that is they try to protect their sources from others but do they encourage the source to keep anonymity with them?” Morrow asked.

“It depends on the context. Generally speaking, they want to know the source but it depends on the context. If you’re talking about a Deep Throat, not necessarily,” Benkler replied.

Morrow suggested that in order to authenticate the information the source was providing one would have to know the identity of the person providing the information. He was suggesting this because, if granting anonymity is unusual or bad practice in journalism, it would help their case against Manning. However, the government failed to get anything useful because Benkler explained, “There are simply different methods of authentication. Identity of the source is one. Possession of a verifiable piece of information that is associated with certain knowledge might be another.”

Moments later, Morrow asked, “Now, have you ever seen in your experience with journalism or otherwise, have you ever seen a journalist tell a source, lie to me?” Benkler’s answer was “not that I know of.” [Note: There was no context to this question, like, for example, proof WikiLeaks ever asked Manning to lie to the organization.]

Another question later in the government’s cross examination: Have you ever seen a traditional news organization where journalists “actively solicited the submission of classified information?” Benkler answered, “I wouldn’t say it’s a standard practice, no.”

That was asked because the government believes WikiLeaks solicited Manning to provide information. It also is how prosecutors increasingly see journalists in leak cases. Former State Department employee Stephen Kim was, according to an FBI affidavit, solicited by Fox News reporter James Rosen to disseminate classified information on North Korea in violation of the Espionage Act.

The government also asked Benkler if he had heard of journalists referring to their confidential sources as “intelligence sources” because they have characterized themselves as the “first intelligence agency of the people.” They also asked if Benkler had ever heard of journalists “referring to outing a spy in their organization.” [Again, minimal context was provided.]

Parroting the Core Ethics of Professional Journalism to Diminish WikiLeaks

A set of questions asked in the afternoon by prosecutors could best be described as an attempt to show that WikiLeaks does not adhere to the ethics of professional journalism because they favor transparency and engage in activism.

“You would agree that there’s a difference between a transparency movement and a journalistic enterprise?” Morrow asked. Benkler said yes.

Morrow asked if a transparency movement seeking institutional change was journalism, and Benkler replied, “If its goal is to achieve institutional or social change, then I would call it a movement, not an act of journalism.” However, “these two are not mutually exclusive.”

“You can have the same organization commit acts of journalism or acts of movement building and movement participation. The two are not, they’re different, they’re not mutually exclusive,” Benkler explained.

“You’ll agree there’s a difference between activism and journalism?” Morrow asked.

“I think there’s a difference between activism and journalism. Although again there are activists who also perform journalism, and when they perform journalism, they’re doing journalism,” Benkler stated. “There are journalists who perform activism. When they’re doing that, they’re activists. It’s not a unique organization or individual identity. It’s a behavior.”

Morrow followed-up, “How do you determine when a organization is performing activism over performing journalism?”

“I would define journalism as the gathering of news and information rather than for public concern for purpose of its dissemination to the public. When I observe an organization doing that, I would say it’s engaged in journalism. When I see the effort to actually change an institution, I would say they’re engaged in activism,” Benkler testified.

He continued, after Morrow asked if he was suggesting focus on actions, “I think looking at what an organization does is a more crisp indication of how I would define it than what it says about itself. I think if you’re trying to understand a way in which an organization understands itself, then you want to see what it says.”

Conclusion 

On one level, Benkler’s testimony on the evolution of journalism—the rise of the “networked Fourth Estate”—was critical for the defense because he was well-spoken, thorough and clear in what he had to say. Whether the judge will give serious weight to what he said in his testimony when determining whether Manning should be convicted of “aiding the enemy” and “wantonly” causing to be published intelligence on the internet obviously remains to be seen. But, if anything is going to help the defense, it is the explanation Benkler gave about WikiLeaks being journalism and grounded in a tradition of leak-based or muckraking journalism.

Additionally, Benkler’s testimony was remarkable in that it offered a moment for the few journalists there covering the proceedings to contemplate how the future of journalism is at the center of this trial.

Not only because, as Benkler told the judge, “Once you accept that Wikileaks is a new journalistic organization, if handing materials over to an organization that can be read by anyone with an Internet connection means that you are handing it over to the enemy, that essentially means that any leak to a media organization that can be read by any enemy and/or in the world becomes automatically aiding the enemy,” but because it has become well-known that only a handful of reporters, including this journalist, have been regularly covering the court martial of Pfc. Bradley Manning.

It was invigorating to hear Benkler lay it all out and basically have him confirm what is known—that Alexa O’Brien, Adam Klasfeld of Courthouse News, Nathan Fuller of the Bradley Manning Support Network and this journalist have played a critical role by not only shaming traditional media outlets into covering the trial more regularly but by also thoroughly covering it in a manner, which traditional media news outlets can reference when producing coverage.

The only US traditional media organization there every day, for the most part, has been the Associated Press.

Without the “networked Fourth Estate,” there would have been much less coverage of Bradley Manning’s trial, with media only covering when those major milestones occurred: beginning of the trial, prosecution rests its case, defense begins its case, defense rests, etc. There would have been even less coverage of the pretrial. [The New York Times considered a hearing on Manning's unlawful pretrial punishment at Quantico "relatively straightforward" and claimed it unnecessary for a reporter to be there every day of what was possibly the most critical hearing in the pretrial process.]

It has been suggested that O’Brien and this journalist are not journalists because we both openly take clear positions on what we’re covering. O’Brien forced a correction in the Times when she was disparagingly referred to as an “activist.” This is because traditional media believe they are in a position to determine who is and is not a journalist by way of their “standards,” but anyone there every day to cover the Manning court martial is inarguably a journalist.

Finally, Benkler’s testimony demonstrates how the “networked Fourth Estate” undermines access journalism dominant among traditional media organizations. Reporters, who choose to acquiesce to the powerful, are challenged by reporters, who do not write stories with a consideration of how the government will view them. Decentralization in media and the increased ability of anyone to engage in journalism threatens their gatekeeper role because they no longer have a monopoly on reporting government information.

WikiLeaks undermines traditional media organizations by calling attention to how media outlets are failing in their constitutionally-protected duty to inform the public about corruption and wrongdoing within the government. The organization reveals a level of complacency, complicity and apathy in amongst a press that prefer lazy and safe reporting to powerful watchdog journalism crucial to society.

There is a struggle over journalism and freedom of the press and at the center of it right now is the trial of Bradley Manning. But, unfortunately, as with most stories, many US media outlets see only what they want to see: a prosecution of a soldier whose leaks the government has said aided the enemy, not a much more significant trial whose outcome could have an impact on press freedom.

Transcripts of Benkler’s testimony from Freedom of the Press Foundation: Morning Testimony | Afternoon Testimony