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Benkler writes: "Since the 9/11 trauma, America has allowed the national security state to ride roughshod over vital liberties. This is a turning-point."

Yochai Benkler. (photo: Harvard University)
Yochai Benkler. (photo: Harvard University)

Manning and Snowden Light Path for the US to Return to Its Better Self

By Yochai Benkler, Guardian UK

27 July 13


RSN Special Coverage: Trial of Bradley Manning

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Since the 9/11 trauma, America has allowed the national security state to ride roughshod over vital liberties. This is a turning-point.

he closing arguments in the trial of Bradley Manning, where prosecutors are trying to persuade the judge that leaking to the press constitutes the treasonous act of aiding the enemy, came fast on the heels of the most significant bipartisan response to leak-based national security journalism that we have seen since the 1970s: Wednesday's vote on the Amash amendment in the House. At no time since the Obama administration launched its war on national security journalism and its sources has the critical role of leaks and journalism been clearer. Without Edward Snowden's whistleblowing and Glenn Greenwald's reporting, NSA surveillance would still have been in the dark, protected by secrecy and bolstered by the "least untruthful" lies James Clapper delivered to Senator Ron Wyden.

Wednesday's vote in the House may well yet turn out to be a turning-point on much more than just NSA surveillance - because dragnet surveillance of phone metadata is only one manifestation of our post-9/11 constitutional PTSD.

On Wednesday, Republicans such as Mike Rogers and Michele Bachmann joined House Democratic minority leader Nancy Pelosi and Republican Speaker John Boehner in voting with President Obama that we should be governed by our fears, rather than our values. But Jim Sensenbrenner, who introduced the original Patriot Act in 2001, joined 93 other Republicans and a majority of House Democrats, including Democratic leaders Clyburn and Becerra, to support Representative Amash's proposed amendment to block NSA dragnet surveillance. And although this coalition lost the vote, its breadth and depth may mark the beginning of America's awakening from a long panic - and anger-induced constitutional hiatus.

We suffered a terrible blow on 11 September 2001. We responded with fear and anger. A fight-or-flight response is adaptive in any species. For us, given our power, fight was the only response we could imagine. But however understandable and justified the initial response, anger and panic can neither continue to define who we are, nor lead us to continue to sacrifice a broad set of constitutional rights.

Every year, we lose three times as many people to firearms-related homicides than we lost to terrorism on 11 September and in the dozen years since. But whether it be based on the second, fourth, fifth, sixth or eighth amendments, we have always seen resistance to compromising the bill of rights in our efforts to prevent or deter these homicides.

Like crime, terrorism is a fact of life. I grew up in Israel, where every unattended bag was a suspected bomb; when my family moved for a few years, it was to London in the early years of "the Troubles". On 11 September, I was living in Greenwich Village, New York; my children learned to tell south from north by looking at the World Trade Center. By the time of the Boston Marathon attack, I was living a few blocks from the Tsarnaevs' apartment in Cambridge, Massachusetts, and spent that Friday locked down with 600,000 Boston residents as authorities searched for one wounded teenager.

I know terrorism is real. And I know fear of it distorts public judgment.

Terrorism is like a chronic illness. We have to learn to contain it and live with it. But we cannot let it change our constitutional structure.

On Wednesday, 205 representatives, liberals and conservatives, voted to say that we refuse to be defined by our fear of terrorism. Whether that vote was a victory or a defeat will ultimately be determined by what those representatives learn from their effort. If they think of it as a technical fix to Section 215 or as limited to surveillance and the fourth amendment, then Wednesday was a defeat.

But it will be something very different if they understand what they did as a step on the long road back to finding our constitutional balance in the face of terrorism.

America is not the land of the general warrant and pervasive state surveillance. Only a traumatized America would stand for what Snowden's leaks exposed. But that is not all we need to fix.

Rejection of indefinite detention without trial was the very foundation of Anglo-American constitutionalism in the Magna Carta. And yet, Guantánamo persists even for scores of prisoners cleared for release.

Free speech is the anchor of our bill of rights. And yet, we use a nebulous and dangerous concept of "material assistance" to a terrorist organization to imprison Tarek Mehanna, a 29-year-old pharmacist from Sudbury, Massachusetts, for 17-and-a-half years for publishing a hateful speech. Such a sentence would be unimaginable for an equally hateful publication by the KKK, neo-Nazis or, most recently, the Hutaree militia. His appeal will be heard next week.

Since Ben Franklin and Tom Paine, America has been the land of the free press, but this administration has prosecuted more leakers and whistleblowers under the Espionage Act than all prior administrations combined - and in Manning's case is trying to establish the precedent that leaking to the press constitutes "aiding the enemy". Moreover, a leaked affidavit in the case involving Stephen Kim's leaks to Fox News' Jamie Rosen showed us that the Justice Department has taken a formal position, in sworn affidavit, that it considers the reporters themselves criminals - un-indicted co-conspirators or aiders and abetters.

America is not the land of torture, and yet, the administration asserts state secrets privilege to prevent known innocent victims of American torture from seeking redress in our courts; refuses to formally abandon the practice of "extraordinary rendition"; and has granted immunity to the torturers, while fighting to keep secret the Senate's findings that the torture program never added an ounce of security.

I suspect almost none of the representatives who voted for the Amash amendment thought of all these ways in which we have been untrue to our constitutional selves. But the real significance of what they did was that almost half the representatives of the mainstream of the American people, both right and left, said no.

We will not let ourselves be defined by our fears. We will not continue to accept secretive, "trust us" assurances from the administration and national security agencies that, if we do not let them continue to expand their powers in the shadows, we will be victimized. To those who would have us governed by fear; those who say with the president that we must give up some liberty to increase our security, Wednesday's yeasayers had a simple answer.

Regaining our constitutional balance is the only victory worth winning. your social media marketing partner


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+4 # RMDC 2013-07-27 08:22
"We suffered a terrible blow on 11 September 2001. We responded with fear and anger. A fight-or-flight response is adaptive in any species. "

This is a much better article than this really crappy highschool junk psychology. Life is more complex than this. There is no "We" that can be referred to in this way. The media and US regime may have responded in the way described above. But most people did not.
-1 # ishmael 2013-07-27 09:46
The decisions of elected representatives are .... ???
+2 # jwb110 2013-07-27 11:48
Perhaps these people in the Congress should ask what they want their legacy to be as statesmen long after they have left gov't?
+9 # James Marcus 2013-07-27 11:59
TRUTH over Lies, any day; Every Day! It may be painful, especially at first, after decades of Cover-Ups. But it Will create a Sustainable Society, which Lies, and Cover-ups, will not. They Undermine; and invite the Unlawful and Immoral to control from 'Under Cover'.
+5 # hammermann 2013-07-27 18:13
I fear that America has accepted the police-surveill ance state, led by the cowardly fools of Congress, and there is no going back. The leaders of all-seeing State will fight for more and more power, they already know they can lie to Congress with impunity. Pandora's Box has been opened and all the horrors of East German spying and informing will happen here.
+1 # RMDC 2013-07-28 07:03
Yes, I agree. I too think the american people have accepted the national security state. Europeans, too. Most Germans accepted Nazism in the early 30s. A lot of it was intimidation. If you don't accept it, you will be singled out, punished, or imprisoned. Same in the US. People always accept fascism at first. It takes a long time for them to see it for what it is and throw it off.

As the neo-cons said, the fascist empire they imagined will require some "new Pearl Harbor" event to launch it. They got that event on 9-11. And now they are running with their claims about making people secure.
+3 # Anarchist 23 2013-07-27 19:56
Too bad the writer never investigated 9/11 from a forensic point of view. Or maybe the laws of physics can be contradicted by Evil Magicians. Anybody want to buy this bridge I am selling cheap?
+3 # Jack Gibson 2013-07-27 20:09
So right, Yochai Benkler! This has got to be a turning point or we're all fracked. But the cowards won this time around... by only seven votes! Everybody's so afraid of being seen as "aiding the terrorists" and/or "terrorism", that they would rather sacrifice our liberties and freedoms, making us more and more insecure in the U.S., and increasingly jeopardizing the safety of innocent American citizens by an expanding militarization of the entire country, and the presumption of guilt on the slightest suspicion of supposedly being "disloyal" to the more and more fascist government.

It appears that increasing numbers of the American people and members of Congress are waking up to these facts; but, the question is, is it too little too late? God forbid that it is too late, but the very fact that the U.S. Constitution and Bill of Rights lost the vote, even by such a small margin, to put liberty and freedom ahead of so-called "security" that is making us less and less free, and to have decreasing liberty, does not bode well for the used-to-be "land of the free"... unless there is another such vote and liberty and freedom win this time.

Otherwise, if that vote too loses, we are screwed; and the government will expect us to completely bow down without question, and without criticism, or draconian action(s) will be taken against all those who defend freedom and liberty, and the final nail will be hammered into the coffin that is the destruction of liberty and freedom in America.
-2 # RachelValues 2013-07-28 22:22
Yes, Snowden should not be punished, though he could have blown the whistle more safely by finding the safe place to go beforehand. And.. people are not afraid of being seen as aiding terrorists. And... the stupid gov't is going about it the incorrect way - they are monitoring everyone, when they should be monitoring the suspicious ones - they had HUGE LEADS on the Boston Bomber nuts and didn't listen. They knew hate-filled A-rab Muslims were planning to blow something up, and they didn't pursue the leads!!!! It's pure stupidity, or they don't care what happens to us and the Country....
-2 # RachelValues 2013-07-28 22:25
Also, the main reason like sucks much more each year in this country and the world is the lack of value systems, that keep humans safe while they have freedom.... This has all been learned long ago - the founding fathers knew even then the dangers of gov't getting out of control. If the people let them, then they get what they deserve....... In a Democratic Republic, if you sit back and do nothing, a crazy group of nuts gets in power and ruins it for everyone.... (Nazi Germany is one ex.)
-3 # RachelValues 2013-07-28 22:27
But we are CORRECT to be Afraid - the hate-filled murderous Muslims have a birth rate of 8 and Euro and US has 1.2 - Arafat said when they led him 'away', "We don't have to do terrorism, we will breed you off the earth". It's our descendants who are in grave danger...

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