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

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The Guardian

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

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

The 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.

Only a traumatized America would stand for what Snowden's leaks exposed.

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.

Yochai Benkler

Yochai Benkler is a law professor and director of the Berkman Center for Internet & Society at Harvard University.

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