Wikileaks: It’s Tough Being a State (Some Are Taking Pity)

by Peter Spiro

The Wikileaks episode seems to be turning to the USG’s advantage, at least domestically: it’s provoking a lot of sympathy for the government as an entity.  That’s a rare sentiment these days.  Leave aside angry calls for Assange’s head (almost literally), people are actually feeling sorry for the USG.

One way that’s being expressed is to compare the government to private entities.  Two posts at the New Yorker’s site take this tack.  George Packer makes the sensible observation:

Lawyers, judges, doctors, shrinks, accountants, investigators, and—not least—journalists could not do the most basic tasks without a veil of secrecy. Why shouldn’t the same be true of those professionals who happen to be government officials?
while Blake Eskin pushes the envelope a little further with this thought:
The various classifications of cables—top secret, secret, noforn, secret/noform, confidential—remind me of the privacy settings for information shared on Facebook. You might let only certain friends see your e-mail address and phone number, but friends of friends can see your status updates, and everyone can see your Wall. . . . The State Department is a social network, and accusing Assange of treason (never mind that he’s not an American citizen) is screaming privacy foul on a national scale.
Of course there is a long tradition of anthropomorphizing the state.  But these Wikileak observations sound in a different register.  They are premised on an equivalence between the state and regular folk.  Imagine if you were doing your job as lawyer/shrink/accountant, and Assange swooped down on you!  Imagine if he hacked his way into your Facebook page!  They make the state human, in a nice way.

(Some of you who are bankers are about to feel the pain.  It will be interesting to see if private sector Wikileaks targets have any more luck squashing posts than the government.  Perhaps the stolen property argument — a line the USG is pressing in its response — will have more traction coming from a private litigant.)

The other silver lining, from the government’s perspective:  The State Department is getting a huge amount of free and generally positive publicity.  Some of  the cables were given a dramatic reading this evening on All Things Considered!  See here, here, and here – still looks like fun, doesn’t it?  I predict a record number of takers for the February 2011 Foreign Service exam (you can register here).

http://opiniojuris.org/2010/11/29/wikileaks-its-tough-being-a-state-some-are-taking-pity/

8 Responses

  1. There is a realist argument that says: this is how the international relations work, everybody does it, therefore there is nothing exciting about the cablegate. Yet this argument is not defended by citizens from small, defenseless countries, but citizens from powerful states. The best explanation for endorsing this argument is that this system of secrecy, espionage and realpolitik produces undeserved advantages for the powerful and unreasonable disadvantages for the less powerful. Small countries with a GDP equal to a city in the West with 300,000 inhabitants, cannot eavesdrop on the U.N., nor have an army of spies in each country, nor afford to bribe the leaders of foreign states, nor to bribe the Security Council. For details see: Kuziemko, I., Werker, E. (2006). “How Much Is a Seat on the Security Council Worth? Foreign Aid and Bribery at the United Nations.” 114 The journal of political economy 905-930

    Thus the way international relations work produces advantages and disadvantages for no good reasons. It’s like adopting a law in the U.S. that people with blue eyes will win 85% of the lawsuits they are a party to. Therefore Assange sabotages this system and he should be given the Noble Prize for peace.

  2. And of course, the revelation that the US engaged in illegal acts (torture, blackmailing, et cetera) warrants a defence of those that expose said illegal behaviour: i.e. whistleblowers.

    Recent years have seen a steady flow of opinions opposing government actions. the mere appearance of scepticism is afforded with the accusation that you support The Terrorist. In essence we should faithfully adopt anything those Wise, Serious and Always Trustworthy political pawns tell us. What Wikileaks does is (like many others) point out that under the guise of secrecy/privacy crimes are being committed and planned.

    As an aside, it is highly ironic that a country that wants to read/listen in to all communications on the planet suddenly discovers the need for privacy when their communications are subject to the same treatment.

  3. This incident raises, to me, an interesting question: that of acts that are legally permitted but morally repulsive. I think Asange has (or should have) a constitutional right to divulge the documents. I also think that he is guilty of moral treason. The way I see it, this person actively collaborates with an enemy against whom the US is waging a just war. That puts Asange in the same category as Nazi collaborators. A Nazi collaborator could not defend himself by saying that the public has a “right to know,” because even the most passionate defender of free speech (I consider myself one of these) concedes that the need to prevail in a just war sometimes trumps this “right to know.” Someone who disclosed the site of the 1944 Normandy invasion, thus warning the Germans and thus causing Allied defeat, can hardly allege that the public’s “right to know” was more important thatn winning on D-Day. What makes Asange’s case interesting is that he collaborates with the enemy by constitutionally permissible means (means which, by the way, would put him instantly in jail in any country but ours.) So, where does this leave us? I fear that the only remedy is moral ostracism and scorn, the one reserved for those who exhibit such vile behavior.

  4. Dear professor Tesón,

    You wrote in “A philosophy of international law” the following: “This enlightened moral and political global reality is ill-served by the traditional model of international law. The model promotes states and not individuals, governments and not persons, order and not rights, compliance and not justice, It insists that rulers be permitted to exercise whatever mount of coercion is necessary to politically control their subjects. Yet the reasons to prefer a world of free nations are strong enough to put the burden of proof on the international lawyers who cling to the traditional statist paradigm that privileges power-holders and ignores people.”, F.R. Tesón, A philosophy of international law, New perspectives on law, culture, and society, Westview Press, 1998, p.25. Assange’s case is such a case that exposes this system and proves that you are right.

    In the same book you wrote that it follows from Kant’s argument in “Perpetual Peace” that individuals should be able to sue states at international courts: “First, the theory suggests the creation of compulsory judicial mechanisms to settle controversies arising from the three Definitive Articles: an International Court of Human Rights, the International Court of Justice, and an International Court of Trade (roughly corresponding to Kant’s three Definitive Articles).” p.25. We still don’t have an international court of human rights where individuals can sue their corrupt leaders, nor the United States for corrupting them. Assange’s exposure can only vindicate the individuals by giving them the knowledge about what’s really going on.

    And since there is no such court, how can one decide that the current global war on terrorism comparable with WWII, from the point of view of the allies? From the point of view of the people in the Third World it is exactly the opposite, like exposing’s Hitler’s secret documents. Therefore one should enact such international courts and let the judges decide.

  5. It is very interesting to see the support that the USG is receiving regarding these recent WikiLeaks (and by the way the comparison to the privacy settings on Facebook is spot on). This just goes to prove that once a thought is communicated from one to another (apparently through any means) it really is no longer private and there can be no guarantee that it will not come to light. In the end, I wonder if the US will consider that the “free and generally positive publicity” is worth the amount of stress this is undoubtedly adding to its current foreign policy.

  6. It strikes me as not only odd, but also potentially dangerous to compare the US Government with natural persons and social networking sites. The Constitution through the Fourth Amendment provides persons with the right to be free from unreasonable searches and seizures, a category the leaks would certainly would fall into, but no such  expectation of privacy extends to the State. In fact, much our country is founded on the idea of permitting access to the insides of government decision-making to prevent the type of dangers and corruption we have seen throughout history that take place when there is a complete disconnect between a government and its people. Unlike many countries, the US often requires vital information be made available to the people: we can watch Congressional debates and sit in on a criminal trials. Information and participation is a part of what it means to be an American. Undoubtedly, a certain amount of classification is necessary for state officials to be able to do their jobs without constantly feeling the call of scrutiny from behind. In particular, some level of secrecy is a must when it comes to foreign relations for our own protection and for our maintenance of inter-state relationships. However, the government is not a person. As charming as it may seem to make the USG seem more human, its vital place in our lives and in our world requires the sacrifice of such rights and privileges granted to the American people.

  7. In response to your claim, Elizabeth, that the USG ought to have sacrificed certain rights and privileges granted to the American people, I feel perhaps just the opposite. Given that their interest is in protecting American citizens from those we ourselves cannot, they ought to have the ultimate privacy protections in carrying out our best interests (loosely termed). I believe it would be entering into a scary territory if various officials had to worry about their every move, especially when a solid solution to an issue is not very clear. Shouldn’t they be afforded the greatest privacy protection when trying to resolve risky matters so they can weigh-out several options without the fear of being persecuted?

  8. As tempting as it is to make the comparison between the USG and private entities in order to justify the “veil of secrecy” the USG asserts, it is unfounded. The purpose of the protections that private entities enjoy is at baseline to protect individual privacy. And that right to individual privacy is a fundamental right, that as Justice Douglas so eloquently stated, emanates from the penumbras of other constitutional protections. While it certainly can be argued that the USG is entitled to a certain level of protection to carry out its functions, that protection does not rise to the level of individual privacy and because the USG is a representation of its constituents, we have an interest in knowing how it is carrying out its duties.

Trackbacks and Pingbacks

  1. There are no trackbacks or pingbacks associated with this post at this time.