Archive for
December, 2010

The Cover of My Book on the NMTs

by Kevin Jon Heller

Oxford has sent me the initial version of the book cover.  Here it is:

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The painting, “The Red Stairway,” is by Ben Shahn, a Lithuanian-born American artist who painted between the 1920s and the 1950s.  In 1942 and 1943, Shahn created propaganda posters for the Office of War Information (OWI); his poster about the destruction of Lidice is an absolute masterpiece.  The OWI considered a number of his other posters to be insufficiently patriotic — i.e., too overtly left-wing — and refused to issue them.  “The Red Stairway” itself was painted in 1944 to illustrate the futility of war.  Here is Shahn’s own description of the painting, which I had on my wall when I was 12 (funny how stable one’s aesthetic tastes are!):

It showed a crippled man walking up an endless stair, and then when he came to the top of that stair he went down again. And the whole thing was in a ruin of rubble and burned-out buildings. To me this is both the hope of man and the fate of man, you know. It’s obvious almost, that he seems to recover from the most frightful wars, the most faithful plagues, and goes right on again when he knows full well that he’s going into another one; but that’s that eternal hope in the human being.

I hope readers like the cover.  My only question is whether the “Oxford” belongs on the top or bottom (with everything moved up if it’s on the bottom).  Any thoughts?

Best Post of 2010?

by Duncan Hollis

We’ve been light on blogging with the holidays this week.  So, as 2010 comes to a close, I thought I’d open a comment thread for those readers still trolling the blogosphere this week to note your favorite Opinio Juris post of the year.  For me, it turns out I’m fond of bird dung, at least when it becomes grounds for exploring the origins of territorial sovereignty.  Other nominations welcome.  And Happy New Year.

Merry Christmas

by Kenneth Anderson

To all OJers everywhere who celebrate it, Merry Christmas, and to everyone a joyous holiday season.  It is snowing large wet flakes here in DC on Christmas morning.  In my case, my wife and I drove down on Thursday to Chapel Hill, North Carolina and drove my wife’s elderly parents up to DC to join us.  Other family have arrived as well, and I am Most Pleased to say that so far I have not been moved to issue an appeal that next some year some nice Jewish family temporarily adopt me during the holidays and take me someplace warm and far away.

Like many of us here at OJ, I have friends celebrating this Christmas, away from friends and family and loved ones, in places ranging from Iraq, Afghanistan, Sudan, Congo, and other places, and best wishes and hopes that you will be sooner rather than later back with your loved ones.  I should lastly report that at the Christmas children’s Mass last night at the parish, Santa made an appearance and pronounced me on the “nice” side of the “naughty-nice” list.  I have a candy-cane to prove it.  It is true, as he handed it to me, he muttered something about “defining deviance down,” but still.  I have not yet been downstairs to see what this means, but that’s next.

Merry Christmas and to all our readers and friends, best wishes to you and your families and loved ones.

And Kenya Moves a Step Back…

by Kevin Jon Heller

True to James Gathii’s comment to my last post, the Prime Minister of Kenya, Raila Odinga, has made it clear that Kenya won’t be withdrawing from the ICC anytime soon:

Kenya’s prime minister on Thursday dismissed as futile a motion by lawmakers to withdraw from the statute establishing the International Criminal Court (ICC) – a move intended to head off the trial of senior political figures.

ICC Chief Prosecutor Luis Moreno-Ocampo last Wednesday named six Kenyans he considers most responsible for the violence that claimed more than 1,100 lives in the wake of December 2007 disputed elections.

Uhuru Kenyatta, deputy prime minister and son of Kenya’s first president, and William Ruto – who has been suspended from his post as higher education minister pending a corruption probe – were the two highest profile accused.

‘The government isn’t pulling out … because this will be an exercise in futility,’ Odinga said, citing rules that would leave the ongoing cases unaffected by Kenya’s withdrawal.

Once again: if the Kenyan MPs want to try the suspects locally, all they have to do is, you know, actually get around to doing it.

Indian + Diplomatic Passport = TSA Profile Match

by Peter Spiro

Another Indian diplomat gets the treatment, this time in Austin.  Colum Lynch has this useful wrap in WaPo on the issue of diplomats and security screening, see also my post about another recent incident in Mississippi.

I don’t get it:  Why don’t diplomats get a pass, like crew?  Has there ever been a terrorist attack undertaken by an accredited diplomat?  It wouldn’t make much sense, even if a country wanted to do terrorist damage, insofar as it eliminates any deniability.  I guess you could have a diplomat going rogue and doing al Qaeda’s bidding instead of his state employer’s; but is that small probability worth upsetting governments whose anti-terror cooperation is important to addressing more likely threats?

Kenya Moves Closer to Withdrawing from the ICC

by Kevin Jon Heller

This according to the BBC:

Kenyan MPs have voted overwhelmingly for the country to pull out of the treaty which created the International Criminal Court in The Hague.

The move comes a week after the ICC prosecutor named six Kenyans he accuses of being behind post-election violence.

The prosecutor’s list included senior politicians and civil servants.

The MPs do not have the power to effect any immediate change in relation to the ICC but they have sent a message to government to start withdrawing.

Article 127 of the Rome Statute permits Kenya to withdraw from the Court, but doing so would have no impact on the OTP’s investigation of the six government suspects.  A state’s withdrawal only becomes effective after one year, and Article 127 specifically provides that withdrawing “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

Kenya keeps insisting that the six suspects should be tried in a domestic tribunal.  Perhaps, instead of undermining the Court — which it fully supported until it found itself in the OTP’s crosshairs — the government might consider actually creating one.  After all, there is a certain Article 17 in the Rome Statute designed for just that situation…

ADDENDUM: Does Moreno-Ocampo even read the Rome Statute?  Here is what he said to a reporter about the MPs’ motion:

Even if Kenya should pull out of the Rome Statute, it would not halt the ICC probe into the six suspects due to the one year’s notice needed to pull, according to Moreno-Ocampo.

‘I don’t think there is any way to change the case,’ he told VoA’s Straight Talk Africa on Wednesday evening. ‘According to the law, if Kenya withdrew from the system it would be one year, so it would be late for this case.’

As noted above, an investigation commenced before a state’s withdrawal becomes effective continues to be valid even after that date.  So the Kenyan investigation would continue to be valid even if Kenya could withdraw immediately from the Rome Statute.  The one-year delay is only relevant to the withdrawing state’s other statutory obligations.

I Really Don’t Want to Know What the Prize Is

by Kevin Jon Heller

When Fox News isn’t busy making people dumber, it’s writing chyrons like this:

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Artistic Death Penalty for Iranian Director Jafar Panahi

by Kevin Jon Heller

A stark reminder that freedom of expression is indeed a precious thing:

Jafar Panahi is one of the most acclaimed film directors in the world. Admirers like myself were horrified and astonished at the news, announced yesterday, that Jafar Panahi had been sentenced not only to six years in prison, but to an unimaginable twenty-year total ban on all his artistic activities—including film making, script writing, traveling outside the country and speaking with the media.

He was convicted by a Revolutionary Court of “propaganda against the system” for having exercised his right to peaceful freedom of expression through his film-making and political activism. He was specifically accused of making an anti-government film without permission and inciting opposition protests after the disputed 2009 presidential election. Mr. Panahi’s artistic collaborator, Mohammad Rasoulof, was also sentenced to six years in prison.

Jafar Panahi is the director of such masterpieces of Iranian cinema as “Badkonake Sefid” (White Balloon), “Dayareh” (Circle), for which he won the Golden Lion at the Venice Film Festival, “Talayeh Sorkh” (Crimson Gold), and “Offside.”

“White Balloon” is phenomenal.  Go rent it — and all the others.

Hat-tip: Una Moore.

More from Jack Goldsmith on WikiLeaks

by Kevin Jon Heller

Today at Lawfare:

If DOJ tries to prosecute Assange, we will see more and more scrutiny of double standards in the treatment of traditional media leak solicitors (NYT etc.) v. Assange, and of double standards in the treatment of high-level U.S. government leakers v. Assange.  Scrutiny of the first double standard will weaken press freedoms as the government condemns as criminal the everyday practices of national security reporters (and other reporters) in soliciting and facilitating leaks of classified information.  (Vice-President Biden’s distinction between Assange conspiring to get classified information from Bradley Manning and a traditional media reporter having a piece of classified information drop in his lap without solicitation is very naïve.)  Scrutiny of the second double standard will reveal the shocking regularity with which top government officials leak classified information, not obviously in a principled manner, and not obviously consistently with the rules governing the handling of such information.

And be sure to check out the Tuesday Morning Quarterback column by Gregg Easterbrook, another conservative, to which Jack links.

It’s interesting to watch a general consensus form among scholars on both the left and right that even if Assange could be prosecuted (an open question), he should not be.  I would not have predicted that a few weeks ago.

UPDATE: Make sure to also read Glenn Greenwald’s discussion of today’s article in the New York Times revealing classified information about the military’s plans to increase the use of ground troops in Pakistan.  Clearly the “officials who described the proposal and the intelligence operations” — who “declined to be identified by name discussing classified information” — as well as the journalists who solicited the information from them, need to be arrested, placed in solitary confinement for 23 hours a day, and prosecuted for espionage and treason.

Sovereigntism in a Nutshell

by Peter Spiro

From a new pamphlet, Why Does Sovereignty Matter to America? Merry Christmas from the folks at the Heritage Foundation:

[T]oday, our sovereignty faces new threats. International organizations and courts seek to reshape the international system. Nations are to give up their sovereignty and be governed by a “global consensus.” Independent, sovereign nations will be replaced by “transnational” organizations that reject national sovereignty.

The demand that the United States bow to this “global consensus” does not respect American sovereignty. The offenses the Founders complained of in the Declaration of Independence now have an international flavor. This new project is filled with examples of institutions, courts, and “taxes” that violate the spirit of the Declaration:

• In 1998 the International Criminal Court was established. It is empowered to subject American soldiers to criminal prosecution in Holland for alleged war crimes and crimes against humanity. The Founders rejected trying Americans outside American courts.

• In Kyoto, Japan, in 1997, and Copenhagen, Denmark, in 2010, an international conference drafted a global treaty to regulate energy use in the United States. An international bureaucracy would monitorcompliance with the treaty’s terms. The Founders rejected subjecting Americans to “a Jurisdiction foreign to our Constitution.”

• In recent years, international organizations and foreign leaders have proposed “international taxes” on airline tickets and financial transactions—taxes that would be borne by American citizens and businesses. The revenues collected would be spent by unaccountable international organizations. The Founders rejected taxation without representation.

Hang on to your wallets, the international taxman cometh!  This is clearly intended for mass distribution, at a level that even school children might understand.  I think this is a waning sentiment unlikely to descend to the next generation, as even conservatives find something to like about international law, but so deeply entrenched a mindset won’t go easily.

The Hypocrisy of Julian Assange

by Roger Alford

It is with great concern that I hear about this because it puts Julian and his defence in a bad position. I do not like the idea that Julian may be forced into a trial in the media. And I feel especially concerned that he will be presented with the evidence in his own language for the first time when reading the newspaper. I do not know who has given these documents to the media, but the purpose can only be one thing – trying to make Julian look bad.

Lawyers for Julian Assange–December 19, 2010

We simply have a very easily understood promise. Unlike most media organizations, we don’t arbitrarily choose what to publish or not to publish based upon the political or personal whims.

Julian Assange–December 17, 2010

We make a guarantee to people that provide us with material that provided their material meets a simple criteria, that is, it has been restricted from the public record, or has been censored and is under an active suppression and it is of diplomatic, political or authorical significance, provided they get it to us we will eventually publish it.

Julian Assange–April 7, 2010

We will fight will all the tools at our disposal, technical, political, legal to make sure the material remains up and published. Any material of political importance or ethical or diplomatic or historical relevance, that is our criteria, that is suppressed we will accept. That is our line in the sand that we have consistently enforced. And previously no one have been able to enforce that. So, this is, yes part of this revolutionary ideal.

Julian Assange–April 26, 2010

Hegemony and Legitimacy and China, Five Remarks

by Kenneth Anderson

Consider three different takes within the last two weeks on the rise of China and impliedly American decline, with different preoccupations.  The first is historian Paul Kennedy’s take in TNR.  It’s a puzzling admixture of “don’t worry, it’s just a rebalancing that was bound to happen if you take the long view,” and “do worry, because the moves the US is making to accommodate the rise of China are going to be very bad for the US.”  It is hard to tell whether Kennedy is saying don’t fight City Hall, or resist decline as long as possible.  The second is from the Weekly Standard’s economics columnist, Irwin Stelzer, in a blistering take on how the US is seemingly incapable of taking a strategic view as against a rising power that has a unified field theory of economic and military-geopolitical power.  The third is the much-noticed TNR essay by Mark Lilla, observing that Carl Schmitt and Leo Strauss are much debated theorists among China’s elite political and social theorists and intellectuals.  Much to ponder in Professor Lilla’s essay, and I won’t try to do it justice here, as it deserves its own post.

For my own part … I have been working on a preliminary presentation  (“paper” would be nice, but so far not true) for a meeting in a couple of weeks at the Hoover Institution on hegemony, legitimacy internal and external, and, by implication, China.  It arises out of my book manuscript on US-UN relations which, unsurprisingly, touches on the questions of hegemony and legitimacy, in relation to the US and to China, as well as what I describe as the parallel systems of international organizations and the hegemonic US security guarantee.

I am not a China expert, and my interest lies in writing something on the general conditions and meanings of hegemony and legitimacy.  Those general conditions have relevance to current discussions of the United States and China in the world. So one possible title is “How to Know When China Is a Hegemon,” and another is “What Becomes a Hegemon Most?”  Each is a little facetious, but each points to serious questions in today’s discussions of the rise of China and the apparent and, for many, presumed decline of the US.

Five things are principally on my mind.  First, even at this stage of a rapidly unfolding debate over the rise of China, there is still an awful lot of treatment of China as a matter of power simpliciter in the world — the classic bouncing billiard balls of international relations realism.  To the extent that this gets broken out into something more nuanced, it is still very often simply a matter of economic power translating to military power. But of course it has to be more than that.  The role that is being attributed to China in many of these same discussions is more than power alone, whether naked military power or combined military-economic might.  It is a role that is about power that means authority, and authority that implies not merely realist heft in the world, but rising — reaching for — hegemony.

Not necessarily global hegemony in the sense of the United States today; nor “merely” hegemony within a geographical range such as Asia; I’ll call it “rising hegemony” and set its issues aside.  Second, instead, hegemony is (partly) a function of power, but what makes it “hegemonic” is power that issues as “authority.”  Which is to say, the “legitimate” expression of power, at least in the rough terms of being roughly accepted by those under its sway.

Third, however, legitimacy for purposes of hegemony is not the “agreement” or necessarily the “consent” of those under its sway — if it were, it would not be the relationship hegemony implies.  Hegemony is not collective action or, in international relations, collective security.  On the contrary, hegemony in security matters is what the United States offers to its allies today — the acknowledged ability to free ride on the strong horse.  Hegemony offers allies a double arrangement: they are happy to free ride on the hegemon so long as they see their overall interests lying in train to the hegemon.  Not in every single thing, but enough, which is largely the position of the NATO allies.  However, the flip side that security policy is set in the end by the the hegemon, which bears the cost and looks to its own interest first.

Yet — the crucial yet — that the hegemon looks to its own interest in the first place is precisely what causes allies to trust it.  Because the strong horse looks to its interests first, allies will believe it — and it avoids the problem of collective action, hold-up, insincere promising and defection that characterizes true collective security (e.g., UN collective security).  This means that “consent” in any particular sense is not what gives hegemonic order its legitimacy, or is what turns hegemonic power into authority.  Consent in some very general sense, of not actively resisting through arms?  Sure, but not in any sense of consent that implies collective agreement.

Fourth, then, hegemony is about legitimacy, and it is difficult (not possible, that is) to talk about hegemony without having a theory of legitimacy.  This creates a certain problem for those parts of disciplines — political science, law and economics, sociology — that, in order to convert themselves into social science, have eschewed thick, intentional explanations (those that require an irreducibly psychological component) in favor of pure surface behaviorism.  Because full Weberian legitimacy is a social attribute of a social order, upon which the purely political and purely legal supervene; and the quality of legitimacy ascribed to such a social order requires not merely an outward behavior (obedience to authority, iterated) but an inwardly psychological quality of a habit of obedience done for a reason, intentionally done (in Anscombe’s sense) under a description and according to a reason.

Without an account of the intentionality and the psychological state of a habit of obedience by reason of a belief in the legitimacy of the social, legal and political order, we leave out a crucial component of the account.  And why, pray, with Laplace and God, have we any need of that hypothesis?  Because it gives one a reason to see the stability of an order on more than merely the prediction that they’ve obeyed before, they’ll obey again.  That is a large topic, obviously, but for now we add one additional point.  The legitimacy of order, including those of hegemony, among states and not only within them, presents certain grave difficulties because states are not individuals and do not possess psychological intentions in the full Weberian sense.  This is why, for example, a scrupulous scholar such as the late Thomas Franck was careful to offer his famous account of “legitimacy among nations” as being somewhat by analogy to legitimacy within a society of individuals.  But we leave that largely aside.

Fifth and finally, then.  For our purposes, we extract from the foregoing that hegemony, because it relies on legitimacy, requires a connection to the legitimacy of the hegemonic regime — not merely in its relations with other states, but arising from its legitimacy internally.  This is a matter often overlooked by those seeking to theorize the rise of China.  If it reaches for genuine hegemonic status, it will do so because it offers to important allies and followers in the world at large a model of legitimacy that arises from within its own state.  For all the loud dissenters against the US hegemony over the decades, after all, the legitimacy of its hegemonic order was premised on many things, but premised not least of which upon the legitimacy of the US within its internal order, and the offering of that internal order as an example to others in the world.  Working from that model, we tend to assume that liberal democracy is its own appeal, and in part that is true.

But it is also true that proffering a model legitimacy for purposes of supporting hegemony need not rely upon liberal democracy’s now seemingly fading universal appeal.  China is offering a quite different basis of legitimacy — one based around authoritarian politics and rapid economic growth.  Growth is the new basis of legitimacy, not human rights, or democracy, or liberalism.  To many regimes in the world, of course, this is music to their ears, having been told since the end of the Cold War that the only form of legitimacy is liberal democracy and the moral hegemony of human rights.  The broadest observation, however, is this:  Hegemony depends upon authority, not merely power, and authority depends upon legitimacy, and legitimacy has external, internal, and (crucially, but hardest to explain)  exemplary aspects to it.

The Effects of WikiLeaks on Those Who Work at the State Department

by Samuel Witten

Samuel Witten is counsel at the law firm Arnold & Porter LLP. He worked at the State Department for 22 years, including six years as Deputy Legal Adviser (2001-2007) and three years as Principal Deputy Assistant Secretary of State for Population, Refugees and Migration (2007-2010).

The world’s attention has been riveted on the potential foreign policy implications of the recent WikiLeaks disclosures. How will the disclosure of candid comments by Saudi leaders about Iran affect the political and military dynamic of the region? Will U.S. cooperation with Yemen become even more complicated by disclosures of cables about U.S. dialogue with President Saleh? What consequences might there be for current tensions on the North Korean peninsula if sensitive discussions about the region and the Six-Party talks are disclosed to the general public? What can be done to better secure this kind of sensitive information in the future? The answers to these questions have serious consequences and the leaks are a legitimate cause for concern for U.S. policy makers and diplomats.

This post focuses on another aspect of the WIkiLeaks developments — the effects of disclosures on the ability of the men and women of the State Department to do their jobs.

The Place of the Diplomatic Cable in American Foreign Policy

The diplomatic cable, a tool used by many governments, provides an official channel for U.S. diplomats abroad to report back to Washington and for Washington to instruct diplomats on how to approach relationships with foreign governments, the public overseas, international organizations and many other audiences. Many cables to and from our diplomatic posts include analyses of complex issues of foreign policy and diplomacy. Others provide candid recommendations of ways to advance U.S. interests against steep odds in dangerous and uncertain places. Some seek urgent guidance and identify sensitive information and options to address contingencies. Others offer insights into the character and motivations of foreign leaders, potential U.S. allies and opponents, opposition political parties, human rights activists, and dissidents.

Cables are a fundamental part of the State Department’s core culture, an essential component of how State Department diplomats and lawyers do business. The process of obtaining “clearance” on a proposed cable within the State Department (or from other concerned federal agencies) ensures that messages and instructions reflect all of the interests at stake and have the benefit of cumulative experience. Cables also create an official, historical record of the U.S. Government’s international actions and help ensure accountability for decisions.

During 22 years in the Department as a lawyer and a policy official, I drafted, edited, cleared and read countless cables. When overseas, I sent cables discussing and analyzing meetings or negotiations I attended or seeking guidance from Washington on possible options and instructions. When in Washington, where I was based, I made every effort to ensure that our outgoing cables were clear and detailed enough that colleagues around the world would benefit from precise analysis and assistance.

Damage from WikiLeaks disclosures go well beyond the immediate consequences reported in the media. The releases undermine the essential ability of our foreign affairs professionals to do their jobs. The leaks compromise the acquisition and flow of information around the world, reduce the effectiveness of our international outreach, and may put lives at risk.

Consequences of the Cable Trove

Proponents of WikiLeaks disclosures have put forward a number of arguments in favor of making these cables public. Putting aside the anti-Americanism of some supporters, there are those who suggest that the leaks promote a kind of openness, giving the public a better understanding of how diplomacy operates and clarifying the interests and goals of the United States and foreign governments. Some may argue that the knowledge of a potential leak – which always exists – may enhance the analytic and reportorial rigor of our diplomats abroad. In this respect, some suggest that the cables, overall, provide an advertisement for a State Department full of excellent professionals advocating and defending American interests around the world. There is certainly much truth in the latter. But to the extent there is any value in these public disclosures, that value, in my opinion, is far outweighed by the substantial negative impacts.

Some of the most striking consequences for State Department professionals include the following:

Information from non-public sources will be harder to obtain. Our foreign affairs professionals can do their jobs properly only when they can exchange information in confidence with foreign leaders, would-be leaders, academics, non-governmental organizations, and private citizens. Many interlocutors are willing to engage with American diplomats only because of implicit or explicit understandings that the exchanges will be kept confidential. The high profile firing of a senior German official whose non-public contacts with the United States were revealed for the first time by WikiLeaks can only be seen as a harbinger of similar damage to other U.S. relationships. It seems inevitable that many officials from foreign governments or international organizations, not to mention private persons at risk, will be more reticent in their contacts with the United States. The releases already made thus are likely to put a chill in our normal diplomatic dialogues; in some cases, it may take years to restore confidence and underlying relationships. Under Secretary of State William Burns spoke articulately about the consequences of Wikileaks at a recent press event in Santiago, Chile:

I think the Wikileaks disclosures have done significant damage to our diplomacy. Confidentiality and discretion and trust really are the core of what we do as diplomats. It’s not unique to diplomacy, it’s true for journalists, it’s true for lawyers, it’s true for doctors, it’s true in a number of other professions. Our ability to understand other societies and to have conversations and be able to protect the confidentiality of those conversations is essential to sensible policies and it’s essential to healthy relations.

Candid analysis and recommendations will be undermined by undue risks of disclosure. Diplomats are asked from the first day of their training to think critically. Their job is not merely to report on what they see and hear, but to evaluate, challenge conventional wisdom, and recommend strategies for advancing U.S. interests in complex situations. In this connection, difficult problems in foreign affairs rarely have obvious or easy answers. Rather, for each problem there are options, many of which require a complex series of actions to achieve, some of which will be sensitive and require maneuvering. In addition, experts in Washington benefit from “atmospheric reporting” (such as reports of what people are saying informally or what the public mood might be in some locations) because it helps them put other information in context. Candor and creativity in reporting and analysis could well be casualties of the shadow cast by WikiLeaks.

Our ability to help persons at risk could be diminished. We do not yet know how many candid conversations with foreign opposition groups, NGO leaders and private citizens are in the leaked cables or in other cables that have not yet been leaked. The concerns already expressed by NGOs such as Human Rights Watch and Human Rights First about the safety of dissidents and human rights advocates are real. People at risk need to know that their communications with the United States are secure and that we will do nothing to undermine their safety. I know from my prior experience managing the U.S. refugee assistance program that many of those who come to U.S. embassies for help are often the most vulnerable and in need of protection. If confidence in the integrity of our private communications is lost, the ability of our professionals to help those in need will be undermined and lives will be endangered.

Ben Wittes and American Exceptionalism

by Kevin Jon Heller

Ben describes as “puzzling” my claim that his recent post on WikiLeaks reflects American exceptionalism.  I find his puzzlement equally puzzling.  Recall the quote on which I focused:

This, in turn, leads ineluctibly to Tom’s reciprocity point: If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same. But I agree with Tom that the situation would be very awkward.

As I noted in my post, Ben believes — reluctantly — that it is probably not a good idea to prosecute Assange under the Espionage Act for revealing government secrets, because he would not want Americans prosecuted by countries like China for revealing their secrets. Ben claims that this means he was making an argument against American exceptionalism, but I disagree.  Ben’s post clearly indicates that he is not opposed to double-standards in principle, even concerning Assange; his objection to using the Espionage Act to prosecute Assange is purely pragmatic, based on the idea that openly embracing the position that only the US should be permitted to prosecute non-citizen leakers (i.e., American exceptionalism) would be “awkward.”  I don’t see how that counts as an argument against exceptionalism; even the most uncritical cheerleader of US hegemony (which Ben manifestly is not) will occasionally conclude that openly holding the US and other countries to different standards is counterproductive to US interests.  Making that pragmatic call is not the same as rejecting American exceptionalism; rejecting exceptionalism requires accepting, as a matter of principle, that the US should hold itself to the same standards as other countries even if double-standards would in no way harm US interests.

More importantly, though, my claim that Ben’s post reflected American exceptionalism was not directed at his discussion of the Espionage Act.  Despite his view of that act, Ben is not opposed to prosecuting Assange and shutting down WikiLeaks; not only did he end his post by claiming that the “sex crimes case in Sweden is looking better and better as way of neutralizing Assange,” he has previously stated that he harbors “no small sympathy” for “prosecuting Assange and shutting down WikiLeaks.”  I presume that is because he believes WikiLeaks’ disclosures have harmed America’s national security, put American intelligence assets at risk, and made America’s diplomatic efforts more difficult.  Yet, as the quote above makes clear, Ben has no problem with the idea of WikiLeaks’ disclosing Chinese secrets, even if doing so would harm China’s national security, put Chinese intelligence assets at risk, and complicate China’s diplomatic efforts.  Indeed, he “actively want[s]” those secrets revealed and admits that he might even “admire” WikiLeaks if it revealed them.  Perhaps I’m wrong, but Ben thus seems to believe both (1) that Assange should be prosecuted and WikiLeaks shut down for revealing US secrets, and (2) that prosecuting Assange and shutting down WikiLeaks would not be warranted if WikiLeaks had only revealed Chinese secrets.

How is that not American exceptionalism?

Steve Vladeck on WikiLeaks

by Kevin Jon Heller

Steve testified yesterday about WikiLeaks in front of the House Judiciary Committee.  Here is a snippet of his testimony, which discussed five major flaws in the Espionage Act:

Second, the Espionage Act does not focus solely on the initial party who wrongfully discloses national defense information, but applies, in its terms, to anyone who knowingly disseminates, distributes, or even retains national defense information without immediately returning the material to the government officer authorized to possess it. In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that, by that point, is already in the public domain. So long as the putative defendant knows or has reason to believe that their conduct is unlawful, they are violating the Act’s plain language, regardless of their specific intent and notwithstanding the very real fact that, by that point, the proverbial cat is long-since out of the bag. Whether one is a journalist, a blogger, a professor, or any other interested person is irrelevant for purposes of the statute. Indeed, this defect is part of why so much attention has been paid as of late to the potential liability of the press—so far as the plain text of the Act is concerned, one is hard-pressed to see a significant distinction between disclosures by WikiLeaks and the re-publication thereof by major media outlets. To be sure, the First Amendment may have a role to play there, as the Supreme Court’s 2001 decision in the Bartnicki case and the recent AIPAC litigation suggest, but I’ll come back to that in a moment. At the very least, one is forced to conclude that the Espionage Act leaves very much unclear whether there is any limit as to how far downstream its proscriptions apply.

Go read the whole thing — and then go read his guest post today at ACSBlog, in which he elaborates on some of the themes of his testimony.

State’s QDDR and Its Academic Cognates

by Peter Spiro

Secretary Clinton yesterday released the much-awaited first Quadrennial Diplomacy and Development Review.  It’s an important document, and if implemented (a big if, given the shift in Congress and threats to cut State’s funding) it would have important consequences on the ground.  The central theme of “civilian power” has a nice ring to it in the context of situating diplomacy, a riff on the now-popular concept of non-military “soft power”.

It’s a practical blueprint, along the lines of the best sort of consultant work.  (The only quibble with its recommendations might be the call for creating several new assistant secretary positions — we ran the world with only six of them in 1944, now there are more than 20.)  One wouldn’t necessarily think it the product of an effort led by two international law professors, Anne-Marie Slaughter and Bill Burke-White (see pp 213-14 for the staffing).  In fact, the term “international law” makes not a single substantive appearance in its 200+ pages.  That’s savvy; any strategy document showcasing international law as such would be DOA.  Public diplomacy gets much more of an institutional push.  The report recommends that all regional bureaus now include deputy assistant secretaries for public affairs; no mention of increased legal staffing.  But there is a strong explicit focus on reshaping and enhancing the architecture of multilateral institutions.  As a practical matter, that would translate into more robust law generation at the international level (which in turn will create a natural demand for more in-house lawyers at State).

At a more subtle level, the report maps onto Slaughter’s academic work.  First, it prioritizes interagency training for US diplomats.  That looks like the practical equivalent of Slaughter’s efforts to advance interdisciplinarity in international law scholarship.  Second, there is an acknowledgment that non-state actors are an important part of the global picture.  The report does this with more than a nod; there’s a whole section entitled “engaging beyond the state.”  This, too, reflects Slaughter’s academic work (though that has focused more on governmental networks, and less on non-state actors as such).

But, finally, the report still sees the world through the lens of the state. Civilian power may be “the power of the public—of NGOs, corporations, civil society groups, and individuals around the world who share our goals and interests.”  But engaging them is about “designing programs, projects and partnerships with them to advance America’s security, prosperity and values around the world.”  Their role remains subordinate; they are tools of policy, not policymakers.  “They expand our potential, bring additional expertise, and leverage our resources.”  Of course any report from the State Department has to maintain that orientation.  It also happens to be consistent with the continuing state-centrism of international relations theory, in whose models non-state actors remain epiphenomenal.

Non-Selection of Assange Infuriates Time Man of the Year 1938

by Peter Spiro

Video here.  (Downfall producers seem to have unblocked these parodies, which had been taken down some time ago for copyright reasons.  Lawprofs might be entertained by this one, clearly composed by someone in our ranks — the mindset of someone who’s taught for a while is perfectly satirized in a way that no outsider could, ever.)

Less on the Size of International-Law Faculties

by Kevin Jon Heller

Having received a number of emails complaining about how I counted the size of various faculties, I have decided to remove both posts.  As I made clear in the original post, my count was not designed to be scientific and excluded — rightly or wrongly — a number of categories of scholars that some might believe should have been included.  The posts were also not designed to prove which faculties were better than others.  As I also noted in the original post, the size of an international-law faculty says very little about its quality.

CIEL’s New(ish) Blog

by Duncan Hollis

I always wish I had more opportunities to blog about international environmental law (IEL), especially in light of recent developments (and thanks to Dan Bodansky for keeping our readers’ abreast of all the happenings in Cancun).  For those of you who have a similar affinity for IEL, check out the new(ish) blog from the Center for International Environmental Law (CIEL).  It’s called CIEL Worldview (see it here).  Given their e-NGO orientation, readers shouldn’t expect that they’ll be offering views from all sides of these issues.  Still, it looks like they’ll add a welcome voice on IEL problems and developments.  So welcome to the blogosphere CIEL Worldview.

Ninth Circuit Rules No Federal Policy Regarding Armenian Genocide

by Roger Alford

The Ninth Circuit this week ruled that there was no federal policy with respect to the Armenian Genocide, thereby allowing insurance claims brought by Armenian nationals under a California statute to go forward. In Movsesian v. Victoria Versicherung AG, the Ninth Circuit distinguished Garamendi, concluding that there was no federal policy against recognizing the Armenian Genocide. Indeed, “[c]onsidering the number of expressions of federal executive and legislative support for recognition of the Armenian Genocide, and federal inaction in the face of explicit state support for such recognition, we cannot conclude that a clear, express federal policy forbids the state of California from using the term ‘Armenian Genocide'” in the statute.

The interesting wrinkle in the case is that in August 2009 the same panel came out precisely the opposite. As Michael Ramsey discusses at length here, that panel bizarrely ruled that the failure to recognize the genocide in formal legislation was a federal pronouncement sufficient to preempt state law. On petition for rehearing, that opinion was withdrawn, and now Judge Nelson has reversed herself, siding with Judge Pregerson.

I consulted on the case on behalf of Movsesian, and I have no doubt that the Ninth Circuit got this one right. In light of Medellin‘s limitation on Garamendi, it was truly astonishing to hold that inchoate federal policies were enough to preempt state laws.

In related news, as reported here, “three descendants of Armenians who lost their property in the collapse of the Ottoman Empire filed a lawsuit Wednesday against the Turkish government and two Turkish banks for restitution of more than $63 million for acreage that includes the strategic Incirlik Air Base used by the U.S. military.” Lee Boyd and Michael Bazyler are working with Vartkes Yeghiayan on behalf of the plaintiffs. The plaintiffs’ press release is here.

The timing of the complaint could not have been better. It comes just days after the Ninth Circuit’s decision in Movsesian and two weeks before the California Armenian genocide law extending the statute of limitations was set to expire.

Still a Bad Idea: Military Commissions Under the Obama Administration

by David Glazier

David Glazier is a Professor of Law at Loyola Law School in Los Angeles.  He has written, under the same title as this post, a paper critiquing U.S. military commissions which you can download from SSRN here.

As the Senate considers an outright ban on the transfer of detainees from Guantánamo to the United States this week, it seems obvious that many proponents intend that this will lead to military commission trials of “high value” detainees held there. Although the government has successfully prosecuted several hundred suspected terrorists in federal courts since 9/11 while securing only five extremely problematic “convictions” at Guantánamo, the myth that military commissions are a superior forum for trying terrorists inexplicably persists. The media spin on the recent federal trial of Ahmed Ghailani has further fueled this erroneous perception. Although Ghailani, who is not a high-level al Qaeda figure, now faces the real possibility of life in a supermax prison, critics and mainstream media describe the case as a “near acquittal” rather than the substantial victory it represents. Despite popular perceptions to the contrary, it is the military commissions which pose the much higher risk of failure in terrorism trials. The commissions have serious legal flaws which provide a number of grounds on which any convictions they render may be overturned, their ad hoc courtroom proceedings have regularly proved embarrassing to objective observers, and the controversy generated by their continued use will predictably have adverse consequences for U.S. national interests.

All five completed commission cases have involved highly questionable applications of substantive law. While the Military Commission Acts of 2006/2009 define offenses the commissions can try, they depend on these being pre-existing war crimes to avoid both U.S. constitutional and international prohibitions on ex-post facto crime creation when applied to detainees who were already in custody when the laws were passed. Yet virtually all LOAC experts agree that the primary offenses charged to date, conspiracy and providing material support to terrorism, are not crimes that can validly be prosecuted by a law of war tribunal. Omar Khadr was charged with additional offenses, including murder in violation of the law of war which could be war crimes in ordinary conflict scenarios, but not as applied to him. Three of the five cases – those of David Hicks, Ibrahim al Qosi, and Khadr – were resolved by plea deals in which the defendants had to waive all right to appeal even though that is forbidden by the court-martial practice on which the commissions are supposed to be based, so their infirmities will not be subject to appeal. Salim Hamdan, in contrast has appealed his conviction but although he has been free for almost two years, his case has still not even gotten through the first tier Court of Military Commission Review (CMCR), mocking the idea that military judges will administer justice more efficiently than their civilian counterparts. Although Ali al Bahlul refused to allow his attorney, David Frakt, to mount any defense on his behalf at all, Frakt nevertheless preserved some issues for appeal that also have yet to be decided at any level. The MCA provides for cases surviving the CMCR to be heard by the regular Court of Appeals for the D.C. Circuit, with the potential for both Supreme Court consideration as well as collateral review once direct appeals are complete. So these cases will be litigated for years to come.

While the substantive law issues alone should be sufficient to both overturn these past cases and derail many future charges, there are a slew of additional issues stemming from unique aspects of the commission process that provide additional grounds for challenge which are wholly lacking from federal trials. Key World War II precedents, for example, only uphold the authority of military officers to convene law of war commissions in the theater of their command and try violations committed during the interval from the “declaration of war” until the conclusion of a final peace treaty. It is thus questionable as to whether any pre-9/11 conduct can validly be tried by the commissions. There is also reason to doubt that a civilian official without any command authority can perform the multiple roles assigned the convening authority thousands of miles removed from the “theater” in which the conduct took place.

There are numerous other flaws including the inability of the defendants to select counsel they trust, the tribunals’ reliance on over-classification practices, use of evidence obtained through coercion despite the statutory ban on doing so, and lack of equal access to witnesses and flawed discovery processes that collectively undermine the ability of defendants to mount credible defenses. The use of substandard tribunals to try aliens which we are wholly unwilling to submit our own nationals to is entirely unprecedented in the history of U.S. military justice and provides the potential basis for an equal protection challenge. If reviewing courts are committed to justice, any of these flaws by themselves could form the basis for overturning convictions. Collectively they will undermine the credibility of any verdicts returned, chilling counter-terrorism cooperation by our friends and allies, while fueling recruitment and fund raising by our adversaries.

The Ghailani trial in contrast, saw the application of recognized charges and rulings that time in military custody does not violate speedy trial timelines and that detainee abuse does not require dismissal on the basis of outrageous government conduct. Although a district court decision is without formal precedential value, it is predictable that other federal judges would reach the same result. The idea that military commission rules offer any legitimate advantage over federal courts is simply wrong. While Ghailani’s judge did exclude one witness the government desired to use on the basis that he had been identified through coercive interrogation, military commission rules should have produced the same result. In general, military commission rules for handling classified information are now very closely based on those used in federal courts, while issues such as battlefield intelligence collection concerns are total red herrings – the Supreme Court holds the 4th Amendment inapplicable outside the U.S.

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Rare Honesty About WikiLeaks and American Exceptionalism

by Kevin Jon Heller

Courtesy of Ben Wittes at Lawfare, responding to a question about whether he believes that, if America should be permitted to prosecute a non-American like Assange for disclosing American secrets, countries like France, China, or Iran should be able to prosecute Americans for disclosing their secrets (my emphasis):

This, in turn, leads ineluctibly to Tom’s reciprocity point: If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same. But I agree with Tom that the situation would be very awkward.

This is American exceptionalism in full bloom.  Getting Chinese intelligence sources killed is fine.  Destroying the ability of China to engage in diplomacy is fine.  Not allowing China to prosecute those who undermine its national security is fine.  Hypocritical and awkward, to be sure.  But fine.  Because China is an authoritarian state, while America is a democracy.

I could offer a substantive critique of this position, but why bother?  If you believe that America is a shining beacon of freedom that should not be governed by the same rules that apply to the other 192 sovereign states in the world — or at least to those that don’t qualify on the Wittes scale as “democracies” — having a discussion about international law (or, for that matter, about any other kind of law) is completely pointless.

I don’t mean to pick on Wittes, who at least is willing to acknowledge that the double-standard means that Assange should probably be let off the hook for publishing American secrets.  But statements like these need to be highlighted, because they reveal precisely the kind of uncritical celebration of American power that has led — and, left unchecked, will continue to lead — to the worst excesses of the war on terror.

POSTSCRIPT: To be clear, I support WikiLeaks’ work no matter which government is involved — China as well as America.  And it is important to note that WikiLeaks has, in fact, also undermined “authoritarianism,” the best example being its exceptionally important work documenting extrajudicial killings in Kenya, which led to a major UN investigation and an Amnesty International Media (!) Award:

WikiLeaks editor Julian Assange has won the Amnesty 2009 New Media Award for work exposing hundreds of recent extrajudicial assassinations in Kenya. The award was presented last night at a ceremony in London.

Four people associated with investigating the killings have themselves been murdered, including noted human rights lawyers Oscar Kingara and John Paul Oulo, who were assassinated driving to an afternoon meeting at the Kenyan National Commission on Human Rights in March.

WikiLeaks first ran its first story on the subject for a week on its front page, beginning November 1, 2008. Eventually the story was picked up by print media, starting with Jon Swain from the Sunday Times. Earlier this year the United Nations sent a team to Nairobi, lead by U.N. Special Rapporteur Prof. Alston, to investigate.

According to AFP, earlier today a session of the U.N. Human Rights Council was told by the Rapporteur that Kenya’s police were a “major stumbling block” for probes into the killings.

Prof. Alston also told that 47 member Human Rights Council on Wednesday that “Attacks on those who document abuses do not absolve a government of its obligation to investigate, prosecute and punish those responsible for extrajudicial executions,”.

In accepting the award, Mr. Assange stated “It is a reflection of the courage and strength of Kenyan civil society that this injustice was documented. Through the courageous work of organizations such as the Oscar foundation, the KNHCR, Mars Group Kenya and others we had the primary support we needed to expose these murders to the world. I know that they will not rest, and we will not rest, until justice is done.”

It is important not to forget that if America’s witch-hunt eventually succeeds in shutting down WikiLeaks, it’s not just the U.S. that will “benefit” — the Kenyas of the world will benefit, as well.

Assange: Non-Citizenship Should Be Irrelevant to Possible Espionage Charges

by Peter Spiro

Buried in a post from Ben Wittes at Lawfare is a suggestion (in response to HRW’s Tom Malinowski) that the Espionage Act shouldn’t apply outside US territory to non-citizens:

[T]his statute has a nuance that makes one pause before treating it as just another extraterritorial application of American law. That nuance is that the entire moral force of a law like this flows from some notion that the person violating it had some obligation to protect the secrets in question. This notion is why we have a dramatically higher comfort level with prosecuting leakers (who promised to protect classified information) than we do with prosecuting secondary transmitters (who did not make any such promise). When we impose liability on secondary transmitters, including the press, we are essentially saying that their duty as Americans or people otherwise subject to this country’s laws conveys some obligation to protect some information some of the time.

I don’t see that in the letter of the law itself, or even its logic.  The act is focused on the harm, not on the notion of some broken bond.  I’m sympathetic to the drift of Ben’s remarks, but they seem misdirected.  It’s treason that works from the premise of allegiance, not espionage.

Wittes also works with the shoe on the other foot:

If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same.

Hypocrisy — and the political offense exception to extradition.  China will have good reason to penalize the release of its classified material, regardless of source.  So if the WaPo published stolen PRC materials, I don’t think there’s anything jurisdictional that would stop the Chinese from charging Donald Graham; they just wouldn’t be able to get their hands on him.

Don’t get me wrong: there are many reasons not to prosecute Assange for espionage.  His citizenship status isn’t one of them.

Wikileaks and the Pentagon Papers

by Roger Alford

“The majority of the Supreme Court said that although they would not stop publication in advance, the question of whether there could be prosecution afterwards was a completely different thing.”

–former Attorney General Michael Mukasey on the Pentagon Papers

Mukasey is right. It seems that in the attempts to compare this case to the Pentagon Papers, the essential distinction between the two cases has been lost. Pentagon Papers was a case about prior restraint. This case is about prosecution following publication. In the Pentagon Papers case, a majority of the Supreme Court left no doubt about the authority of the U.S. government to prosecute following publication.

Here are a few choice excerpts from the various concurring and dissenting opinions:

Justice White, with Justice Stewart concurring:

I concur in today’s judgments, but only because of the concededly extraordinary protection against prior restraints enjoyed by the press…. [18 U.S.C. 798] … proscribes knowing and willful publication of … communication intelligence activities of the United States as well as any information obtained from communication intelligence operations. If any of the material here at issue is of this nature, the newspapers are presumably now on full notice of the position of the United States and must face the consequences if they publish. I would have no difficulty in sustaining convictions under these sections on facts that would not justify the intervention of equity and the imposition of a prior restraint.

Justice Stewart, with Justice White concurring:

It is elementary that the successful conduct of international diplomacy and the maintenance of an effective national defense require both confidentiality and secrecy. Other nations can hardly deal with this Nation in an atmosphere of mutual trust unless they can be assured that their confidences will be kept. And within our own executive departments, the development of considered and intelligent international policies would be impossible if those charged with their formulation could not communicate with each other freely, frankly, and in confidence. In the area of basic national defense the frequent need for absolute secrecy is, of course, self-evident.

Justice Harlan, with Chief Justice Burger and Justice Blackman, dissenting:

Forced as I am to reach the merits of these cases, I dissent from the opinion and judgments of the Court…. [T]he judiciary must review the initial Executive determination to the point of satisfying itself that the subject matter of the dispute does lie within the proper compass of the President’s foreign relations power…. Moreover, the judiciary may properly insist that the determination that disclosure of the subject matter would irreparably impair the national security be made by the head of the Executive Department … after actual personal consideration by that officer…. [T]he judiciary may not properly go beyond these two inquiries.

Chief Justice Burger, dissenting:

I agree generally with Mr. Justice Harlan … but I am not prepared to reach the merits. I should add that I am in general agreement with much of what Mr. Justice White has expressed with respect to penal sanctions concerning communications or retention of document or information relating to the national defense.

Justice Blackmun, dissenting:

I join Mr. Harlan in his dissent. I also am in substantial accord with much that Mr. Justice White says, by way of admonition, in the latter part of his opinion [addressing penal sanctions]…. [I]f … these newspapers proceed to publish the critical documents and there results therefrom the death of soldiers, the destruction of alliances, the greatly increased difficulty of negotiations with our enemies, the inability of our diplomats to negotiate, … the prolongation of the war and of further delay in the freeing of United States prisoners, then the Nation’s people will know where the responsibility for these sad consequences rests.

Australian Journalists Support WikiLeaks

by Kevin Jon Heller

A coalition of 26 of Australia’s most prominent journalists — essentially, the editors of every major newspaper (with the exception of the right-wing The Australian) and the news directors of all the major networks — have written a remarkable open letter to Julia Gillard criticizing the U.S. (and Australian) government’s attacks on WikiLeaks and threats to prosecute Assange.  Here is a snippet:

The leaking of 250,000 confidential American diplomatic cables is the most astonishing leak of official information in recent history, and its full implications are yet to emerge. But some things are clear. In essence, WikiLeaks, an organisation that aims to expose official secrets, is doing what the media have always done: bringing to light material that governments would prefer to keep secret.

In this case, WikiLeaks, founded by Australian Julian Assange, worked with five major newspapers around the world, which published and analysed the embassy cables. Diplomatic correspondence relating to Australia has begun to be published here.

The volume of the leaks is unprecedented, yet the leaking and publication of diplomatic correspondence is not new. We, as editors and news directors of major media organisations, believe the reaction of the US and Australian governments to date has been deeply troubling. We will strongly resist any attempts to make the publication of these or similar documents illegal. Any such action would impact not only on WikiLeaks, but every media organisation in the world that aims to inform the public about decisions made on their behalf. WikiLeaks, just four years old, is part of the media and deserves our support.

Already, the chairman of the US Senate homeland security committee, Joe Lieberman, is suggesting The New York Times should face investigation for publishing some of the documents. The newspaper told its readers that it had ‘‘taken care to exclude, in its articles and in supplementary material, in print and online, information that would endanger confidential informants or compromise national security.’’ Such an approach is responsible — we do not support the publication of material that threatens national security or anything which would put individual lives in danger. Those judgements are never easy, but there has been no evidence to date that the WikiLeaks material has done either.

There is no evidence, either, that Julian Assange and WikiLeaks have broken any Australian law. The Australian government is investigating whether Mr Assange has committed an offence, and the Prime Minister has condemned WikiLeaks’ actions as ‘‘illegal’’. So far, it has been able to point to no Australian law that has been breached.

To prosecute a media organisation for publishing a leak would be unprecedented in the US, breaching the First Amendment protecting a free press. In Australia, it would seriously curtail Australian media organisations reporting on subjects the government decides are against its interests.

This is how a real media acts — one that is more interested in educating the public than being invited to barbecues and receiving six-figure book deals to write hagiographies of famous politicians.  And to think, Australia doesn’t even have a First Amendment!

Cancun Can!

by Dan Bodansky

Concluding plenary at COP-16

Oh, how much difference a year — and lower expectations — make! The BBC report on the Cancun meeting declared that “if Copenhagen was the Great Dane that whimpered, Cancun has been the Chihuahua that roared.”  Never mind that the Great Dane’s whimper was about the same decibel level as the Chihuahua’s roar.  Last year, expectations were sky high for a new legal agreement that would extend, complement or replace the Kyoto Protocol, so the non-binding Copenhagen Accord was a major disappointment.  This year expectations for the Cancun Conference were extremely low, so an outcome that essentially incorporates the Copenhagen Accord into the UNFCCC process is seen as a big win.

Frankly I was doubtful that the Cancun Conference would be able to accomplish this much.  Last year, a small group of countries successfully blocked the COP’s adoption of the Copenhagen Accord, leaving its status within the UNFCCC process uncertain.  Since Copenhagen, the big developing countries such as China and India voiced at beset tepid support for the Copenhagen Accord.  So I had thought it likely that Cancun would produce a weaker result.  But the Mexican chair (Secretary of Foreign Affairs, Patricia Espinosa, shown in the middle in the picture above) did a masterful job in creating a negotiating atmosphere in which countries had confidence, and in putting pressure on Venezuela and its allies not to sink the meeting.  (Reportedly, President Calderon personally called Chavez in an effort to dissuade Venezuela from blocking, as it did last year.)  In the end, when only Bolivia objected to the adoption of the text, Espinosa was able to simply note the Bolivian objection and then gavel the decision through, to widespread applause.

The Cancun Agreements reiterate all of the key elements of the Copenhagen Accord, including:

  • A long-term goal of limiting temperature increase to 2 degrees Celsius (with a review in 2015 that will consider whether to strengthen the goal to 1.5 degrees Celsius).
  • A mechanism for anchroing the emissions targets and actions pledged pursuant to the Copenhagen Accord in the UNFCCC process, through inclusion in two “INF” (information) documents — one for emission targets to be implemented by developed countries, which will be subject to measurement, reporting and verification (MRV); the other for nationally appropriate mitigation actions (NAMAs) to be implemented by developing countries, which will be subject to a process of international consultation and analysis (ICA).
  • A registry for listing NAMAs for which developing countries are seeking international support
  • A collective commitment by developed countries to provide $30 billion in fast start financing for the period 2010-2012, balanced between mitigation and adaptation, as well as a longer term goal of mobilizing jointly $100 billion per year by 2020, a “significant portion” of which should flow through the Green Climate Fund.
  • Establishment of a Green Climate Fund.

But the Cancun Agreements do not simply bring the Copenhagen Accord into the UNFCCC process; they elaborate and operationalize the three page Copenhagen Accord in thirty pages of decision text.  Among its key elements, the Cancun decisions:

  • Provide that the ICA process for developing country NAMAs will be performed by the Subsidiary Body on Implementation.
  • Provide that the Green Climate Fund will be managed by a board of 24 members, split between developed and developing countries, and will be administered for the first three years by the World Bank.
  • Establish a Technology Mechanism to facilitate technology development and transfer.
  • Set forth detailed provisions on adaptation in the Cancun Adaptation Framework.
  • Establish a framework for reducing emissions from deforestation and forest degradation (REDD).

In Cancun, the growing splits among developing countries were on even clearer display than in Copenhagen.  India played a very constructive role (and in particular, Environment Minister Jairam Ramesh), introducing a proposal on ICA that was very forward-leaning and suggesting that it could accept binding commitments.  The small island states continued to push for negotiation of a new protocol that would address emissions from countries without Kyoto targets.  And China found itself under increasing pressure from its fellow developing countries to accept some limits on its emissions.

Going forward, the Cancun decisions under both the UNFCCC and the Kyoto Protocol leave open the question of legal form — that is, whether there should be a new legal agreement under the UNFCCC, a second commitment period under the Kyoto Protocol, or both.  The COP decision extends the mandate of the Ad Hoc Working Group on Long-Term Cooperative Action (AWG-LCA) for another year, and requests that it “continue discussing legal options with the aim to complete the agreed outcome” on the Bali Action Plan, and the parallel decision on the Kyoto Protocol calls on the AWG-KP to complete its work next year, so that there is no gap between commitment periods.

But whether or not next year’s Durban Conference is able to translate the Cancun Agreements into legal form, the Cancun outcome represents a significant achievement, which shows that – with proper management – the UNFCCC process is still able to move the ball forward.

How Big Should an International Law Faculty Be?

by Kenneth Anderson

I don’t quite mean that, of course.  The total number of “international” law faculty depends on so many different things at any given law school.  What I do mean is to follow on Kevin’s post and ask, supposing you are trying to rationally plan out an international law faculty and curriculum, or more practically gradually shape into the future according to curriculum needs and the directions of important scholarly subdisciplines?  What would that look like?  I imagine that many of us are on appointments committees, or take part in strategic planning discussions for law faculties, in which some part of these question arise.  Suppose you were asked to answer, by a dean or a provost (at some faculty planning retreat, say) what are the areas of international law that must be offered to students, the areas that students are interested in taking; and what are the scholarly agendas in international law that should be represented on a faculty, and what are the subdisciplines of international law scholarship that should be represented in hiring decisions over time?

Again, every institution is different, and I don’t have firmly fixed views on these things.  But I wonder what one says.  For example, I have thought for a while that international criminal law is over-represented or threatens to become so at many law faculties.  That is partly because of my particular substantive view that to an undesirable degree, ICL is coming to swallow the rest of public international law, and so that is partly a normative judgment about it.  But descriptively, I wonder if there is not something of a supply bubble brewing in ICL, on account of the mechanisms by which law graduates go out into the world of international tribunals, prosecutor’s offices, etc., and then return to look for jobs in the academic market.  I’ve been told by numbers of friends that I’m imagining things, but how robust is the long term career track for international criminal lawyers outside the academy, at least over the long run?

Okay, ICL is my particular bugbear, but one could ask what are the rising areas.  One is commercial arbitration, and investment arbitration and BITs and all that.  Generally, I would think that international financial law – the kind of work that Mitu Gulati or my colleague Anna Gelpern do, in areas like foreign sovereign debt and international finance generally – important rising areas of scholarly work.  The technical barriers to entry are relatively high; it doesn’t require advanced degrees in economics, but it does require a willingness to take on technical financial areas such as derivatives.  It’s hard to know how to deal with these areas as curriculum questions, however; I started out life in the derivatives tax area, and used to teach a class on it as an adjunct at Fordham, and find it more interesting than almost anything.  But when I offered a seminar class on derivatives as contracts to complement our excellent class on regulation of derivatives a few years ago, I had almost zero students and canceled.  CDSs were not in the news at that point, so it might be different now, but maybe not.

In that same area, and indeed an aspect of the same, is comparative financial law – the same because the law in these areas is cross border, but national, and the rules on such things as secured credit or securitizations are crucial.  Closely related is something that receives very little attention, but I think deserves a great deal more – comparative central banking.  I don’t mean comparative monetary policies; I mean comparative legal and regulatory regimes governing central banks.

But I suppose my overall query is what the curriculum and scholarly areas that would ideally be represented in international law, broadly understood, would be today.

The Political Economy of the Euro-Zone Crisis

by Kenneth Anderson

In this week’s Weekly Standard, Christopher Caldwell of the WS and FT has an essay specifically on the political economy of the euro-zone crisis, Euro Trashed: Europe’s Rendezvous with Monetary Destiny.  He notes that the European Union is built on a theory of successive crises, and that the euro was foreseen, perhaps intended, to provoke a crisis that would lead toward greater union; he quotes some of its founding fathers to that end.  (I think he might have added the dialectical ideology that underlay that sentiment, but does not.):

As we contemplate the macroeconomic storm that is now passing through Europe, we must bear in mind that this is a storm that the EU’s promoters knew would come. The euro’s designers understood Rahm Emanuel’s philosophy about not letting a crisis go to waste. “Europe will be forged in crises,” the European Community’s founding father Jean Monnet wrote in his memoirs, “and it will be the sum of the solutions brought to these crises.” When the French statesman Jacques Delors laid out his plan for the euro in the late 1980s, he drew a clear trajectory: A common market had made possible a common currency. A common currency would make possible a common government.

But how would that happen? After all, if a currency worked well within the existing political arrangements, there would be no reason for those arrangements ever to change. New institutions could result only from the currency’s blowing up. Economic crisis would be the accidentally-on-purpose pretext for replacing a system based on parliamentary accountability with a system based on the whims of a handful of experts in Brussels. Europe’s countries now face the choice of giving up either their newfangled money or their ancient national sovereignties. It is unclear which they will choose.

Toward the end, the essay points out that although Greece is every bit as corrupt and profligate as the newspapers suggest, that was not the case with Spain, nor with Ireland, certainly not in the sense of Greece.  That is, Spain had quite good fiscal management and undertook measures that were thought quite strict at the time to protect its banks from the subprime crisis in the US, while many other European banks were as much a part of it as the US ones.  True, Spain’s economy has many structural problems – a sclerotic labor market for those in the protected sectors and, today, unemployment for everyone else.

But the adjustment mechanisms by which democratic market societies overcome interest group recalcitrance – monetize the debt and let devaluation lower wages (behind the veil of money, as we Marxists like to say) – were not available to it, having joined the euro.  Spain was overcome by a one-size fits all monetary policy, which to overcome in a democratic society through internal fiscal and regulatory means alone would require superhuman willpower (and perhaps, in the regulatory arrangement of the EU and eurozone at this moment, could not be achieved in any case, on account of too many arbitrage avenues around internal controls, of the kind designed for the purpose of one-size fits all): Continue Reading…

Goldsmith on WikiLeaks

by Kevin Jon Heller

Jack Goldsmith and I don’t agree with each other very often, so it’s worth noting that we have essentially the same reaction to WikiLeaks.  From Lawfare today:

I find myself agreeing with those who think Assange is being unduly vilified.  I certainly do not support or like his disclosure of secrets that harm U.S. national security or foreign policy interests.  But as all the hand-wringing over the 1917 Espionage Act shows, it is not obvious what law he has violated.  It is also important to remember, to paraphrase Justice Stewart in the Pentagon Papers, that the responsibility for these disclosures lies firmly with the institution empowered to keep them secret: the Executive branch.  The Executive was unconscionably lax in allowing Bradley Manning to have access to all these secrets and to exfiltrate them so easily.

I do not understand why so much ire is directed at Assange and so little at the New York Times. What if there were no wikileaks and Manning had simply given the Lady Gaga CD to the Times?  Presumably the Times would eventually have published most of the same information, with a few redactions, for all the world to see.  Would our reaction to that have been more subdued than our reaction now to Assange?  If so, why?  If not, why is our reaction so subdued when the Times receives and publishes the information from Bradley through Assange the intermediary?  Finally, in 2005-2006, the Times disclosed information about important but fragile government surveillance programs.  There is no way to know, but I would bet that these disclosures were more harmful to national security than the wikileaks disclosures.  There was outcry over the Times’ surveillance disclosures, but nothing compared to the outcry over wikileaks.  Why the difference?  Because of quantity?  Because Assange is not a U.S. citizen?  Because he has a philosophy more menacing than “freedom of the press”?  Because he is not a journalist?  Because he has a bad motive?

In Obama’s Wars, Bob Woodward, with the obvious assistance of many top Obama administration officials, disclosed many details about top secret programs, code names, documents, meetings, and the like. I have a hard time squaring the anger the government is directing toward wikileaks with its top officials openly violating classification rules and opportunistically revealing without authorization top secret information.

Whatever one thinks of what Assange is doing, the flailing U.S. government reaction has been self-defeating.  It cannot stop the publication of the documents that have already leaked out, and it should stop trying, for doing so makes the United States look very weak and gives the documents a greater significance than they deserve.  It is also weak and pointless to prevent U.S. officials from viewing the wikileaks documents that the rest of the world can easily see.  Also, I think trying to prosecute Assange under the Espionage Act would be a mistake.  The prosecution could fail for any number of reasons (no legal violation, extradition impossible, First Amendment).  Trying but failing to put Assange in jail is worse than not trying at all.  And succeeding will harm First Amendment press protections, make a martyr of Assange, and invite further chaotic Internet attacks.  The best thing to do – I realize that this is politically impossible – would be to ignore Assange and fix the secrecy system so this does not happen again.

As others have pointed out, the U.S. government reaction to wikileaks is more than a little awkward for the State Department’s Internet Freedom initiative.  The contradictions of the initiative were apparent in the speech that announced it, where Secretary Clinton complained about cyberattacks seven paragraphs before she boasted of her support for hacktivism.  I doubt the State Department is very keen about freedom of Internet speech or Internet hacktivism right now.

Well said!

Diplomatic Pat-Downs

by Peter Spiro

The government of India is protesting TSA’s “humiliating” pat-down of its ambassadress to the United States.

On Dec 4, [Ambassador Meera] Shankar was subjected to a rigorous public “pat down” at the Jackson-Evers International Airport after a visit as a guest of the Mississippi State University.

According to The Jackson Clarion-Ledger, Shankar was singled out from a group of 30 passengers and pulled aside. Witnesses told the paper that she was chosen as she was wearing a sari.

Amid the uproar, the US Transportation Security Administration (TSA) asserted that diplomats are not exempt from the searches. Shankar “was screened in accordance with TSA’s security policies and procedures”, spokesman Nicholas Kimball said in Washington. A number of factors could prompt a pat-down search, including bulky clothing, but he said the agency did not generally discuss specific cases.

Can we be surprised that this happened in Mississippi?  The state’s lieutenant governor was quick to condemn the action: “Although I understand we need proper security measures to protect the passengers in US airports, I regret the outrageous way Indian Ambassador Shankar was treated by the TSA while visiting Jackson.”  Got to worry about foreign investment!

The question for diplomatic immunity experts is whether TSA pat-downs are consistent with the Vienna Convention on Diplomatic Relations, article 29 of which provides:

The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or detention. The receiving State shall treat him with due respect and shall take all appropriate steps to prevent any attack on his person, freedom or dignity.

Whether or not it constitutes a violation of the VCDR, TSA might as a policy matter send the word on down the line that diplomats should get kid- (not plastic-) glove treatment at airport checkpoints.

The Hole in the Heart of Judge Bates’ Al-Aulaqi Decision

by Kevin Jon Heller

I hope to have more to say in the next few days about Judge Bates’ completely predictable decision to dismiss the ACLU/CCR lawsuit.  I just want to flag here what is the most obvious problem with it.  Judge Bates claims — clearly trying to insulate himself from criticism — that

Contrary to plaintiff’s assertion, in holding that the political question doctrine bars plaintiff’s claims, this Court does not hold that the Executive possesses “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.” See Mot. Hr’g Tr. 118:1-2. Rather, the Court only concludes that it lacks the capacity to determine whether a specific individual in hiding overseas, whom the Director of National Intelligence has stated is an “operational” member of AQAP, see Clapper Decl. ¶ 15, presents such a threat to national security that the United States may authorize the use of lethal force against him.

The reason that the Executive does not possess such “unreviewable authority,” according to Judge Bates, is that Al-Aulaqi cannot be assassinated by the Obama administration if he turns himself in first:

But while Anwar Al-Aulaqi may have chosen to “hide” from U.S. law enforcement authorities, there is nothing preventing him from peacefully presenting himself at the U.S. Embassy in Yemen and expressing a desire to vindicate his constitutional rights in U.S. courts. Defendants have made clear — and indeed, both international and domestic law would require — that if Anwar Al-Aulaqi were to present himself in that manner, the United States would be “prohibit[ed] [from] using lethal force or other violence against him in such circumstances.”

This argument holds for Al-Aulaqi, who is aware that he is on the Obama administration’s kill list.  But as I have pointed out before, there are three other Americans on that list.  Nothing in Judge Bates’ opinion requires the government to inform them — or Americans added to the list in the future — of their status before they are actually assassinated.  Those Americans, therefore, do not have the option of surrendering themselves in order to avoid harm.  Indeed, Judge Bates’ opinion provides the government with a powerful incentive not to inform them that they have been included on the kill list, because that will keep open the assassination option indefinitely.

With the exception of Al-Aulaqi, in short, the ACLU and CCR are exactly right: contrary to his protestations, Judge Bates has given Obama precisely the “unreviewable authority to order the assassination of any American whom he labels an enemy of the state.”  All Obama has to do is keep his mouth shut.

[Can-cun or Can’t-Cun? [That [is [not]] [might be] the Question]]

by Dan Bodansky

The climate negotiations were cast as a choice last year between Hopenhagen or Nopenhagen, and this year between Can-Cun or Can’t-Cun.  John Ashton, the senior negotiator from the UK Foreign Office, told me yesterday that he sees four possible outcomes here:  momentum, a lifeline, zombie-hood, or collapse.  Since no one wishes to push the negotiations over the brink (on the theory that any process is better than no process) – or at least is willing to take the blame for doing so – collapse seems unlikely.  Conversely, given the divergence of views between developed and developing countries about the fundamental architecture of the regime (should we continue in a Kyoto world with a “firewall” between developed and developing countries, or develop a common regime albeit with different substantive commitments?), few expect the meeting to create significant momentum.  So the middle two options seem most likely.  Pessimistically, Cancun will adopt a  set of “nothing-burger” decisions, which continue “the process” but lead nowhere.  Optimistically, it will adopt decisions that create a pathway forward.

For many, the zombie outcome would be even worse than total collapse.  Better to declare the patient dead and begin to explore other options than to have it continue to lumber along from one meeting to the next.  But even a somnolent process may have ancillary benefits.  For one thing, the annual meetings of the UNFCCC help bring together a huge array of people working on climate change issues for two weeks of information exchange and networking.   Often, these activities are seen as a sideshow – but increasingly, they may represent the real show, which produce a value added.  In Cancun, the venues are so dispersed that most of the private sector groups have held their events far away from the official conference site.  So it is possible that they would continue even if the UNFCCC process collapsed. Nevertheless, one gets the impression that without the official conference, there would not be the same level of private sector interest.

The optimistic scenario leads to the question:  If Cancun is to produce a lifeline (or even more optimistically, momentum), a life-line or momentum towards what?  Most people, I think, would answer: towards a legally-binding agreement.  Within the climate world, treaties still appear to be the holy grail.  One of the main criticisms of the Copenhagen Accord was that it was only a political agreement.  Nevertheless, there appears to be a growing acceptance of the view that non-legal arrangements can be valuable as well.  For one thing, a non-legal regime can become operational immediately, without the need to await ratifications; in addition, a non-legal agreement may allow countries to make more ambitious pledges (although by lowering the costs of violation and thereby reducing the credibility of the commitments).  In any event, given the difficulties of reaching a legal agreement either on a Kyoto Protocol second commitment period or a new protocol under the UNFCCC, there is increasing recognition that non-binding decisions may at least be a useful way-station in the longer-term evolution of the regime.

Cancun is likely to call for another year of intensive meetings, leading to next year’s conference in Durban.  But these intersessional meetings are unlikely to be productive until states can agree on what they are trying to negotiate — a set of concrete decisions or a new legal agreement.  In the development of the UNFCCC and the Kyoto Protocol, an intensive negotiating schedule was useful because states were committed to reaching an agreement.  They were engaged in a serious process of negotiations, which required significant time.  The fundamental difference now is that states don’t agree on what they should be trying to do.   Developing countries would like developed countries to agree to a second commitment period under Kyoto; many of the countries with Kyoto target would like a comprehensive new legal agreement that includes the other big emitters, and some would like simply a set of COP decisions on specific issues such as finance, adaptation, and MRV (which in essence would operationalize the Copenhagen Accord).  Without basic agreement on what they are trying are trying to negotiate, there is little willingness to engage in serious negotiations.

The Cancun meeting thus faces a choice.  Given the lack of agreement about legal form, it could focus on negotiating a series of operational decisions on finance, MRV, and mitigation pledges, which move the ball forward, while leaving for another day the question of future legal agreements.  Or it could adopt a decision that achieves a perfect state of equipoise, neither committing to, nor foreclosing, a second Kyoto commitment period, an additional legal instrument, or a non-binding regime.  But while the latter outcome would keep the UNFCCC process on life support, it would provide, at best, a pretty weak lifeline.  Unless the climate change regime can agree on a direction and begin moving there, its epitaph might read: It died leaving all of its options on the table.

Ready. Aim. Click.

by Peter Spiro

This message just went out on Twitter:

WE ARE ATTACKING WWW.VISA.COM IN AN HOUR! GET YOUR WEAPONS READY http://bit.ly/e6iR3X AND STAY TUNED. #ddos #wikiealsk #payback

Sure sounds like war to me.  I have no idea what the weapons actually consist of, but they were apparently effective earlier today against Mastercard.  I wonder if Visa’s “troops” are now metaphorically massing on the other side of the battlefield, preparing for the counterattack.  The credit card companies may not take much more than a symbolic hit from this, but it still seems like something new and nontrivial.

Meanwhile, the State Department’s assistant secretary for Public Affairs, P.J. Crowley, is sending out well-crafted, pithy-by-necessity tweets on Wikileaks issues.  For instance: “The U.S. government did not write to PayPal requesting any action regarding . Not true.”  This is probably an effective way for the USG to try to set things straight, quickly.

And our friend John Bolton wants us to roll out the virtual artillery: “as for Wikileaks itself, and anyone cooperating with its malicious enterprise, now is the time to test our cyber-warfare capabilities. Fire away.”

If nothing else, the Wikileaks episode is demonstrating just how central the internet will be to the future of conflict.

Lieberman Wants The New York Times Investigated

by Kevin Jon Heller

He may be a horrible senator, but at least Joe Lieberman is (relatively) consistent:

Sen. Joe Lieberman (I-CT), who has become one of the most vocal critics of Wikileaks, said today that while Wikileaks founder Julian Assange is definitely guilty of crimes, the New York Times may also have broken the law by posting some of those diplomatic cables.

“To me, the New York Times has committed at least an act of bad citizenship,” Lieberman said on Fox News today. “Whether they’ve committed a crime, I think that bears very intensive inquiry by the Justice Department.”

Lieberman acknowledged that the idea is “sensitive” because “it gets into the First Amendment.”

Of course, if criminal prosecution “gets into the First Amendment” for The New York Times, it gets into for WikiLeaks as well.  There may be intent differences between the two — although it is important to keep in mind Steve Vladeck’s recent post and the fact that paragraph (c) of the Espionage Act does not contain a “reason to believe” requirement — but I have heard no plausible argument that the First Amendment applies differently to The New York Times and WikiLeaks.  (Unless, of course, obeisance to the government is your operative criterion.)  Both simply published material leaked by others, and in some cases The New York Times published the material first.

All is not completely well, however, with Lieberman.  He also thinks that Assange should be prosecuted for treason:

He also wondered why Assange, an Australian citizen, hasn’t been charged with treason in the U.S.

“What do you think of the Justice Department’s actions so far not to charge Julian Assange with treason?” the Fox anchor, Jenna Lee, asked.

“I don’t understand why that hasn’t happened yet,” Lieberman said.

Why the Australian Assange owes “allegiance to the United States,” as required by 18 USC 2381, Lieberman doesn’t bother to explain.

The Many Fronts of the First Infowar

by Peter Spiro

John Perry Barlow has made a call to arms (via Twitter): “The first serious infowar is now engaged. The field of battle is WikiLeaks. You are the troops.”

That’s a little grandiose to my taste.  But among the many interesting things going on here is the prominent role of nonstate actors.  The battleground players include:

Domain name services:  On the first day, a major denial of service attack was launched (apparently by a private party) against the Wikileaks site.  Amazon dropped service to Wikileaks, but the “Swiss Pirate Party” picked it up.  Lots of people have set up “mirror” sites in part as insurance in the event the main Wikileaks site gets taken down.

Payment systems:  Paypal stopped processing payments to Wikileaks.  Visa and Mastercard have followed this morning.  The Swiss PostFinance Bank shut down a Wikileaks account.

Social media:  As Kevin points out below, Facebook is keeping the Wikileaks page up.  Wikileaks-supportive tweets continue at what appears to be a manic pace (many against as well).  Some worry that Twitter is omitting the subject from its “trending topics”, which Twitter has denied.  There’s even a brouhaha about whether Time has blocked Assange votes in its balloting for Person of the Year (apparently not – he’s enjoying a comfortable lead).

The possibility is that powerful private actors can shut Assange down, or at least are an important part of any effort to do so.  That’s the noose that’s tightening.  (See this Guardian timeline of attacks on Wikileaks – only a few are governmental.)  All of this is at least nominally in the shadow of the law — those that have taken action against Wikileaks have cited legal justifications.  But one wonders whether the legal arguments were window dressing for actions that would have been taken in any case.  And I suspect that private actors who defy calls to cut Wikileaks off will not face legal action (Roger’s kind of argument notwithstanding).

On the other side of the field are Barlow’s troops.  They have reacted furiously against the corporate moves.  There have been calls to boycott Amazon and Paypal; although I’m pretty skeptical that these will have much traction, you can bet that they are monitoring the situation closely.  “Internet activists” did take down the PostFinance Bank website (it’s still down now).  The mirroring and other work-arounds may be effective, and it seems pretty clear that the 250,000 cables will all eventually see the light of day.  Is that evidence of victory?

Of course the more traditional state-administered noose is now also tightening, albeit in an oblique way (through the non-Wikileaks, sex-crimes charges against Assange).  “The authorities” of one description or another are clearly leaning on private actors to advance US objectives.  The state is still the key player, but it can no longer fight these wars on its own.

Judge Bates Dismisses Al-Aulaqi Case

by Kenneth Anderson

Presswires are reporting that Judge John Bates has dismissed the much-noticed case in which the ACLU and the Center for Constitutional Rights sought to bring suit on behalf of Anwar Al-Aulaqi’s father, contesting the ability of the President to target his son, an American citizen hiding abroad in Yemen who the government says is a targetable participant in a terrorist group covered by the AUMF.  The opinion is here. The news story points to standing problems for the father.  Says the AP:

U.S. District Judge John Bates said in a written opinion Tuesday that al-Awlaki’s father does not have the authority to sue on his son’s behalf. But he says the case raises serious issues about whether the United States can plan to kill one of its own citizens.

Quick update:  On a fast read of the opinion — well, anyone interested in these questions needs to read it post haste.  Far from merely being a narrow discussion of standing, it goes on to discuss the political question doctrine in great detail, and concluding on this point:

…this Court recognizes the somewhat unsettling nature of its conclusion — that there are circumstances in which the Executive’s unilateral decision to kill a U.S. citizen overseas is “constitutionally committed to the political branches” and judicially unreviewable. But this case squarely presents such a circumstance. The political question doctrine requires courts to engage in a fact-specific analysis of the “particular question” posed by a specific case, see El– Shifa, 607 F.3d at 841 (quoting Baker, 369 U.S. at 211), and the doctrine does not contain any “carve-out” for cases involving the constitutional rights of U.S. citizens. While it may be true that “the political question doctrine wanes” where the constitutional rights of U.S. citizens are at stake, Abu Ali, 350 F. Supp. at 64, it does not become inapposite. [p. 77 opinion, emphasis added]

But opinion contains much, much more.  A very interesting discussion of why the Alien Tort Statute does not offer an avenue; state secrets doctrine; there is a lot of stuff here.  More when I’ve read it more closely.  It is an impressive work in judicial opinion-crafting, regardless of what one thinks of the outcome.

Update:  Larkin Reynolds at Lawfare offers a bunch of snippets from the opinion; also at Lawfare, Bobby Chesney offers an objective outline, sans commentary, of the quite long opinion, and Jack Goldsmith and Ben Wittes weigh in with commentary.  I was puzzled, frankly, at the coverage in both the Post and the Times this morning; Charlie Savage, for example, seemed to think that the language I quoted above was what Judge Bates rejected, if I understood his writeup correctly.  Rather, this is what he found, albeit in a collateral and perhaps purely dicta way, given that he did not need to reach this once he had dismissed on standing grounds.  The best one might say for plaintiffs here is that he confined himself to narrow facts, even while concluding that the executive’s decision was unreviewable.

Basically, I agree with Ben’s five points at Lawfare, and agree with him that the ruling is likely bullet-proof on appeal. The one point I’d add to Ben’s discussion is that it seems to me that Judge Bates’ motivation was to provide at least the beginning of clear institutional settlement on a crucial aspect of the executive’s national security prerogatives, even if it was arguably “mere” dicta.

I’d also note in passing that this holding illustrates in a backhanded way one of the aspects of the Alien Tort Statute that I find troubling, at least as applied to conduct outside the territorial United States.  Viz., it confers special rights  upon aliens that are not available to US citizens – including, in this case, a citizen named Al-Aulaqi.  His alien father can at least begin to bring a claim that the citizen son cannot, because he is, well, not an alien.  This makes sense to me in one context only, viz., when the conduct occurs in the territorial United States, and the alien present in the US might suffer at the hands of state courts or US citizens, who themselves have ample avenues open to them; it levels the playing field.  Abroad, arguably, it gives aliens something that US citizens don’t have.

Are Domain Name Registrars Liable for Wikileaks’ Criminal Conduct?

by Roger Alford

The Swiss domain name registrar Switch announced today that it will not shut down Wikileaks.ch as a result of Wikileaks’ criminal activity. It does so at its peril.

The pharmaceutical industry has long faced the question of registrar liability for hosting illegal pharmaceutical drug websites. Legitscript.com, a pharmaceutical watchdog, has summarized the obligations of domain name registrars in this report.

As the report outlines, every domain name registrar is required in its agreement with ICANN to abide by the UDRP, which requires registrars (such as Switch) to prohibit their customers (such as Wikileaks) from using websites for unlawful purposes. Article 2 of the UDRP provides:

By applying to register a domain name, or by asking us to maintain or renew a domain name registration, you hereby represent and warrant to us that … (c) you are not registering the domain name for an unlawful purpose; and (d) you will not knowingly use the domain name in violation of any applicable laws or regulations.

Under the UDRP, each registrar must include a provision in the registration agreement prohibiting use of the website for unlawful activity. When a website engages in unlawful activity, the registrar has a contractual right to shut the website down.

What if it fails to do so? Registrars are generally immune from liability under the Communications Decency Act. But under 47 U.S.C. 230, this is not the case if the registrar knowingly facilitates a third-party’s criminal activity or knowingly profits from that criminal activity. 47 U.S.C. 230(c) provides that “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” However, 47 U.S.C. 230(e) adds that “Nothing in this section shall be construed to impair the enforcement of … any … Federal criminal statute.”

Thus, as the Legitscript report put its,

Registrars cannot be held accountable for the information if they do not know about it, but once put on notice about criminal activity, a compelling argument exists that they no longer enjoy the protections of the federal Communications Decency Act, if they knowingly continue to allow their domain name registration services to be used in the furtherance of criminal activity.

The report outlines the experience of pursuing registrars for hosting websites that they knew were selling fake prescription drugs. Eleven registrars, including GoDaddy in the United States, and ten others in Canada, China, Germany, India, Poland, and the United Kingdom, shut the illegal websites down. But five registrars refused to do so. One of these registrars, eNom, hosts 4,000 illegal Internet pharmacies, and through registration fees, is profiting from the criminal activities of its hosted websites. It is now in litigation for hosting and advertising illegal websites.

Likewise, under the EU law, registrars are immune unless they know a website they are hosting is engaged in unlawful activities. Article 14 of Directive 2000/31/EC provides that:

Where an information society service is provided that consists of the storage of information provided by a recipient of the service, Member States shall ensure that the service provider is not liable for the information stored at the request of a recipient of the service, on condition that: (a) the provider does not have actual knowledge of illegal activity or information and, as regards claims for damages, is not aware of facts or circumstances from which the illegal activity or information is apparent; or (b) the provider, upon obtaining such knowledge or awareness, acts expeditiously to remove or to disable access to the information.

Applied to Wikileaks, every domain name registrar has a contractual right in the registration agreement to shut down a website such as Wikileaks that engages in criminal activity. Moreover, if a registrar knows that a website it is hosting is engaged in criminal activity–such as disclosing company trade secrets or publishing classified government documents–it is not immune from prosecution under US or EU law.

Facebook Won’t Shut Down WikiLeaks Page

by Kevin Jon Heller

As numerous other websites happily conspire with the US government to shut down WikiLeaks, despite the fact that neither Assange nor anyone else associated with the website has ever been charged, much less convicted, of a disclosure-related crime, it is good to see that the world’s foremost social networking site is willing to stick to its principles:

Classified document publishing website Wikileaks has now been kicked off of Amazon, Paypal, its DNS server and its Swiss bank account – but it lives on, including across hundreds of mirrored sites and is the subject for widespread discussion on Facebook and Twitter.

Site leader Julian Assange is hiding on the run but said to be facing imminent arrest in multiple countries. US Republican party figureheads have reportedly called for him to be hunted down like a Taliban leader and executed. He may very well be named TIME Magazine’s Person of the Year for pushing the envelope on questions of technology disruption of media and diplomatic secrecy. Senator Joe Lieberman called on US corporations to stop doing business with Wikileaks but tonight Facebook has issued a statement about its stance: for now at least, Wikileaks can continue publishing updates to supporters on the world’s largest social network.

ReadWriteWeb’s question, by email: “Does Facebook have a statement on the Wikileaks account there? Will it be allowed to continue publishing, despite government calls to stop doing business with the organization? Is Facebook considering shutting down the account?”

Facebook’s response, from Andrew Noyes, the company’s D.C. based Manager of Public Policy Communications: “The Wikileaks Facebook Page does not violate our content standards nor have we encountered any material posted on the page that violates our policies.”

I haven’t seen The Social Network yet, but I’m going into it with considerable affection for Mark Zuckerberg.

Why Has the OTP Announced a “Preliminary Examination” Regarding North Korea?

by Kevin Jon Heller

According to a press release today, the OTP is conducting a preliminary examination into whether two recent North Korean attacks on South Korea qualify as war crimes:

  1. The shelling of Yeonpyeong Island on the 23 November 2010 which resulted in the killing of South Korean marines and civilians and the injury of many others; and

    The sinking of a South Korean warship, the Cheonan, hit by a torpedo allegedly fired from a North Korean submarine on 26 March 2010, which resulted in the death of 46 persons.

    The preliminary examination will almost certainly go nowhere.  If aggression was an operative crime, it might have been worth pursuing in relation to the second event.  But it is difficult to see how attacking the Cheonan, a prototypical military target, could qualify as a war crime.  And it is even more difficult to see how the shelling of Yeonpyeong Island, though possibly a war crime, could be considered grave enough to warrant an investigation — and I say that as someone who has consistently argued that the OTP should adopt a qualitative understanding of gravity instead of simply counting bodies.

    Given that there is little chance that the OTP will formally investigate, I find it very curious that the OTP has announced that it is conducting a “preliminary examination” of the situation in South Korea.  It is true that, as stated in this document, the OTP conducts such an examination for all of the communications that it receives that are not “manifestly outside of the Court’s jurisdiction.”  (More than 4,800 so far, and counting.)  But the OTP normally publicly announces that it is conducting a preliminary examination only when it considers a situation to have significant potential for formal investigation. Indeed, the OTP has itself made that clear:

    The Office has made public its preliminary examination of 13 situations, including those that have led to the opening of investigations (Uganda, DRC, CAR, Darfur, Kenya), those dismissed (including Venezuela and Iraq), and those that remain under preliminary examination (Colombia, Afghanistan, Cote d’Ivoire, Georgia, Palestine and Guinea).

    All of those preliminary examinations were high-profile and involved very serious crimes.  The situation in South Korea satisfies the former criterion, but patently fails the latter.  So why has the OTP publicly announced the preliminary examination?  Is it just trying to appear relevant?  Does it think the announcement helps undercut (unjustified) criticism that the OTP is unfairly targeting Africa?

    Readers — your thoughts?

Irish Political Commitments

by Duncan Hollis

A couple of years ago, Josh Newcomer and I argued that political commitments have developed to a point where they should receive constitutional scrutiny.  In other words, we do not accept that because political commitments lack international legal force they should have absolute immunity from domestic legal processes.  Indeed, to the extent that political commitments may perform the same (or at least similar) functions as treaties, it seems strange that negotiators can avoid any domestic review of a deal by a state’s legislature by simply indicating an intention that, whatever the text says, it is not intended to be legally binding.  On the contrary, we argued that the increasing utility of political commitments (not to mention their ability to contain highly normative, precise commitments that may establish significant institutional structures or precommitments to later legal obligations) suggests  that these instruments are worthy of domestic attention.   

Our focus was solely on the United States.  But Ireland may be the first to offer a serious inquiry into the issue as debates now rage over its political commitments with the IMF to bail it out of the latest EU debt crisis.  Darren O’Donovan had a great piece on the topic in last Thursday’s Irish Times:

The IMF memorandum is a declaration, not a treaty. It probably does not invoke constitutional need for Dáil approval

QUESTIONS HAVE been raised regarding the applicability of Article 29.5.2 of the Constitution to the emerging agreement between Ireland and the International Monetary Fund (IMF). The article provides that “the State shall not be bound by any international agreement involving a charge upon public funds unless the terms of the agreement shall have been approved by Dáil Éireann”.

To the non-international lawyer, this looks to require a Dáil vote on the memorandum of understanding which was published in draft form yesterday evening.

There is, however, strong evidence to suggest that IMF standby arrangements consisting of letters of intent and memoranda of understanding do not constitute binding international agreements under the provision. The Supreme Court in Boland v An Taoiseach held in reference to the Sunningdale Agreement that a political declaration or assurance falls outside it, while binding international treaties require a Dáil vote.

We measure what is an international treaty by reference to, among other things, the intention of the parties and the actual terms of the agreement.

The IMF has traditionally been quite clear that it does not regard memoranda of understanding as binding international agreements, and has required its staff to avoid binding or contractual language in their drafting. Furthermore, memoranda are not lodged with the United Nations as formal treaties are.

The IMF is, in essence, relying on its market influence and reality of our economic dependency to enforce its conditions. If we breach conditions it will not be legal power that is mobilised, but the fund may suspend payments, with severe consequences for our bond yields.

This position has important consequences.

If Ireland fails to meet a memorandum target, it is not in violation of international law.

More adversely, however, the non-legal status of memoranda means that their contents cannot be interpreted in the light of international law rules and, should we end up in dispute with the IMF over the meaning of the terms, our recourse to international courts and arbitration is limited. Although the fund claims the agreements are general and macroeconomic, what can emerge is an unequal debate around what constitutes sufficient compliance with the terms of the standby arrangement to justify disbursing the next tranche of the funds.

I’m no expert on Irish treaty law, so I can’t really speak to the issue of whether IMF MOUs qualify as international agreements for purposes of domestic approval. I’m inclined, however, to agree with O’Donovan that they’ll likely fall outside of existing constitutional constraints. But that makes my point all the more starkly — that states and international institutions have now adopted significant and serious forms of commitment that were not contemplated by, nor addressed in, domestic constitutional orders focused on treaty commitments. To the extent that the IMF and states themselves seek to use their political deals as an end run around democratic review by legislatures, it raises the question of whether those domestic systems should adjust to ensure at least some review occurs. Given the seriousness of the EU debt crisis, I wonder if it may not be an appropriate catalyst for such change?

How to Write a Book in 647 Steps (Part Three)

by Kevin Jon Heller

According to Oxford University Press, my book checks in at a healthy 452 pages.  I still can’t quite believe that I wrote something so long — approximately 165,000 words, 130,000 more than anything else I’ve ever written.  Writing the book was extremely fun, but the hard work before the writing, the researching and the outlining, was often anything but.  It’s that process that I want to describe in this post, which tries to answer a simple question: what do you do once you’ve obtained a contract to write a book?

Planning the Research

I was, of course, incredibly excited when OUP offered me a contract.  The excitement quickly wore off, however, when I realized that I had no idea how to actually write a book.  My only consolation was that, because I had done so much research for and thinking about the proposal, I had a very good idea of what each chapter would contain and — just as important — how they would fit together.  I anticipated writing 12 chapters (I ultimately wrote 16, because I ended up dividing four chapters that were longer than I planned), so I tried to convince myself was that I was writing twelve 10-12,000 word essays instead of one 150,000 word book.  That made the project seem somewhat more manageable.

The next step was to figure out how to research the book.  I divided the potential sources into four categories: (1) the NMT judgments themselves, along with various orders and motions in the trials; (2) archival material about the trials, particularly documents that explained the prosecution’s decision-making processes and the thought processes of the various judges; (3) secondary literature, both past and present, about the trials; and (4) contemporary jurisprudence that cited the judgments, necessary for the final chapter of the book, which would discuss the impact of the trials on the development of international criminal law.  I decided to begin with the judgments, because I did not want my interpretation of them to be affected by either the secondary literature or contemporary jurisprudence.  (Auguste Comte’s “cognitive hygiene” in practice.)  I would then turn to the secondary literature, the archival material, and the contemporary jurisprudence.

The Judgments

The judgments were, of course, the heart of the project. I had decided early on, when conceptualizing the proposal, that I would write a thematic book, not one organized by trial.  I wanted to explore what the tribunals in general said about war crimes, modes of participation, defenses, rules of procedure and evidence, sentencing, etc., so that readers would know when the tribunals agreed with each other and when they disagreed with each other.  (As I pointed out in this post concerning aiding-and-abetting, courts have often cherry-picked individual judgments, implying that a minority position was actually the “NMT” position as a whole.)  But that meant not only identifying every issue that I wanted to discuss in the jurisprudential chapters of the book, but also what every tribunal said about those issues — no small task, given that the judgments ran approximately 2,500 pages, nearly 2,400 more than the IMT judgment.

At this point, I had not read all of the judgments in their entirety.  So that is what I did first…

The Climate in Cancun

by Dan Bodansky

Needless to say, there’s a much warmer atmosphere at this year’s climate conference in Cancun than last year’s conference in Copenhagen.  By all accounts, the Mexicans have done a great job both in preparing the diplomatic groundwork for this year’s meeting and in running the conference during its first week.  They certainly have learned the lessons of the last war.  In Copenhagen, the Danes  tried to bypass the formal negotiating process – which has been stalled for years – by developing a political agreement in smaller meetings among the key players.  Their approach was widely criticized as undemocratic and illegitimate – a charge that was, in  my view, largely unfounded, but which was pushed particularly strongly by a group of obstructionist countries that have decided to use the climate negotiations as a forum for settling other political scores.  (See my post last year from Copenhagen on the “illegitimacy of legitimacy.”)

This year, the Mexicans have bent over backwards to create an open process, assiduously consulting countries in order to create an atmosphere in which everyone would feel included.  At a “stocktaking” meeting on Saturday, the Mexican foreign minister, who is presiding over the conference, repeatedly emphasized that there is no “secret text” and that at the ministerial dinner she would be hosting that night, there would be “no negotiations.”

Of course, that leaves the question, if an outcome won’t be negotiated by a smaller group of ministers, how will it be negotiated?  The Mexican’s approach is to do so through “consultations,” leading to an informal text that is the subject of further consultation, leading to a further iteration of the text, and so forth, until a text acceptable to all parties is reached.  Whether this “negotiating” style will prove successful remains to be seen.  At Saturday’s stock-taking, some of the familiar suspects that helped to derail Copenhagen were already beginning to voice criticisms, saying that the text should be negotiated by states rather than produced by facilitators.  Of course, that is a prescription for failure, unless the negotiations among states can be held among a smaller group, which has already been ruled out as undemocratic.  But failure may be exactly what the critics want.

A key question at the Cancun conference is how much the outcome here will reflect the Copenhagen Accord, which was agreed only a year ago by the leaders of all of the world’s major economies.  From my admittedly US-centric perspective, it appears that at least some developing countries are attempting to view what they got out of the Copenhagen Accord ($30 billion in fast start financing and $100 billion per year by 2020) as the point of departure for more demanding proposals on finance, while walking back from what agreed to in Copenhagen (agreement to implement the national actions they list internationally and a process of international consultation and analysis).  To the extent this is true, the developed country concessions in Copenhagen have become, in effect, the floor – and the developing country concessions the ceiling – of a Cancun outcome.

The Cancun negotiations are continuing in two tracks, one to develop an “agreed outcome” under the Framework Convention and the other to develop a second commitment period under the Kyoto Protocol.    In the Convention track, the negotiating text contains the usual platitudes on adaptation and technology transfer.  (These are of course hugely important issues, but it is difficult to see how they depend on the verbiage under negotiation here.)   The three biggest issues are:

(1)     How the national actions that have been pledged under the Copenhagen Accord will be reflected  or “anchored” under the Convention?  For example, will they be listed in an appendix to a conference decision, or simply listed in an “inf” (information) document?

(2)    What procedure will be established for “international consultation and analysis” (ICA) on national actions and commitments?

(3)    What financial architecture will be established for delivery of the $30 billion fast start financing and the roughly $100 billion longer-term financing.  (This is a potentially huge issue, since the new Green Climate Fund could dwarf the World Bank in scale, but only if a sound structure is adopted that makes donor countries sufficiently confident that their money will be well spent to lead them to contribute.)

Even if these issues could be resolved, the question about what to do with the Kyoto Protocol could still be a deal-killer.  Developing countries have said they are unwilling to accept anything in Cancun under the Framework Convention track unless developed countries accept a second commitment period under the Kyoto Protocol.   The Kyoto Protocol’s structure is a bonanza for developing countries, since it exempts them from any emission reduction commitments.  So, not surprisingly, they are adamant that it must be preserved.  For the same reasons, some developed countries – most notably, Japan – are equally adamant that the Kyoto Protocol approach should be scrapped and replaced by a single agreement that encompasses both developed and developing country mitigation actions.  The Copenhagen Accord sidestepped the issue of what to do with Kyoto, but it has now reemerged in full force.  Japan made an unusually strong statement the opening day of the conference that it would not accept a second commitment period of the KP, and developing countries have responded equally forcefully.  Whether the skills of the Mexican facilitators can overcome this deadlock remains to be seen.

Meanwhile, the overcast skies earlier this week have given way to glorious sunshine — hopefully a positive omen for the second week of negotiations.

Wikleaks: Conundrums of Disclosure and Declassification

by Peter Spiro

It’s easy to laugh at the USG for its directives to employees re the handling of Wikileaks cables (as the NYT put it this morning, a case of “shutting the barn door after the horse has left”).  The idea that a State Department employee talking about the cables in a Starbucks, much less with her spouse at home, would constitute a security violation seems preposterous.

But it is true that the cables remain classified.  And their classification status is unlikely to change anytime soon.  Indeed, it’s quite possible that none of the Wikileak documents will be declassified before their otherwise applicable 25-year declassification clocks have run, in some cases not until 2035.

There’s something sensible in this.  If disclosure were all it took to get a document declassified, that would supply an incentive to leak and disclose, especially to media outlets enjoying some first amendment insulation.  Moreover, the act of declassification out of step with the 25 year timeline supplies government validation of the disclosed document as authentic.  That could trigger some foreign government sensitivities.  There have been cases (involving a single or small number of documents) where other governments have been able in effect to ignore disclosures, almost pretending like they were forgeries, in the absence of USG acknowledgment.

On the other hand, it seems silly to treat the Wikileaks documents as if they haven’t been plastered all over the internet.  That’s why the directives to employees (existing and prospective) look so ham-handed — they are acting as if all the usual rules that apply to the handling of classified documents (don’t talk about them in Starbucks/don’t blog about them etc.) still apply, when everyone else is talking/blogging about them.

So the middle ground would be to keep them classified as a formal matter, but as a matter of information security to let them go and understand that they are now in the public domain.  There’s no legal mechanism for the distinction, and as a result I’m sure it would be bureaucratically tricky to act on it.  But all that good press the government was starting to get out of this (our writerly and mostly competent diplomats!) is going to go out the window if it doesn’t recognize some basic realities.

Why Prosecuting Assange Won’t Be a Walk in the Park

by Kevin Jon Heller

Baruch Weiss, a former federal prosecutor and a partner at Arnold & Porter who was involved in the AIPAC defense, explains why in an editorial today in The Washington Post.  I was particularly interested in his discussion of why he believes it would be difficult to prove that Assange knew the disclosures would harm national security:

Here, Assange can make the department’s case especially difficult. Well before publishing the cables, he wrote a letter to the U.S. government, delivered to our ambassador in London, inviting suggestions for redactions. The State Department refused. Assange then wrote another letter to State, reiterating that “WikiLeaks has absolutely no desire to put individual persons at significant risk of harm, nor do we wish to harm the national security of the United States.”

In that second letter, Assange stated that the department’s refusal to discuss redactions “leads me to conclude that the supposed risks are entirely fanciful.” He then indicated that WikiLeaks was undertaking redactions on its own.

If it would be difficult to prove that Assange knew the disclosures would harm national security, it would be even more difficult to prove that he intended them to do so.  Yet another reason, if you believe that Assange should be prosecuted for the disclosures, to follow Roger’s suggestion that he be prosecuted for economic crimes.

Anna Dolidze on WikiLeaks and International Law

by Kevin Jon Heller

The following is a guest post by Anna Dolidze, a JSD candidate at Cornell Law School. In 2007-08, Dolidze was
 an Albert Podell Global Scholar at Risk at New York University Law
 School and a Visiting Fellow at Columbia University’s Harriman Institute.  She has worked for a number of international organizations, including for Save the Children, Russian Justice Initiative, and Human Rights Watch.  Our thanks to her for the contribution.

Does International Law Matter?  Ask WikiLeaks

Legal commentaries on WikiLeaks’ publication of thousands of otherwise confidential documents can be grouped in three main discourses. First is a cluster of conversations about the legality or illegality of some of the actions depicted in reports. Second is a discourse about possible legal responses by various governments against the organizations and individuals implicated in the released of documents. The third discourse comprises debates around the possible criminal prosecution of Wikipedia’s founder. In all of these discourses, commentators are looking at leaked cable reports through the law, applying or weighing legal concepts to be applied.

Nevertheless, there is a need for a fourth, different kind of a discussion. Information released by WikiLeaks can be extremely useful for those interested in learning about the law itself, especially about the perception, respect, or fear of law by those in power.

The first discourse comprises a series of conversations about the legality of actions depicted in the documents and about the possible legal reaction to illegalities committed by government officials. Illegalities reportedly committed are both of domestic and of international concern. For example, a cable report from an American Consulate in China alleged that a Chinese mining company paid thousands of dollars to the Chinese premier to secure access to copper deposits in North Korea. This incident alleges bribery and corruption in Chinese government, both of which, if proven, are criminally prosecutable actions.  In a different vein, a set of cable reports confirms that the Obama Administration has been secretly operating cruise missile attacks on terrorist suspects in Yemen.  Reportedly, these attacks have resulted in the deaths of dozens of civilians for which the Yemeni government routinely takes responsibility. Extrajudicial killings operated by the US government have already been subject to criticism by the legal and human rights communities for violating norms of international law. But the suspicions of carelessness in targeting and the unnecessary deaths of civilians might insight further charges of war crimes.

The second discourse is about the government response to the release of documents and  the possible legal actions against the organization and individuals connected to the disclosure of classified information. There have been calls to prosecute the leaders of WikiLeaks, among others, on the basis of the United States Espionage Act. On the extreme of these lie public statements calling for WikiLeaks to be classified as a terrorist organization.

The third discourse is about personal criminal charges against the founder of WikiLeaks, Julian Assange. The Red Notice released by Interpol informs that Assange is wanted by the Swedish authorities to question him in connection with a number of sexual offences. Many countries view Interpol Red Notice as a valid request for provisional arrest, especially if they are linked to the requesting country by an extradition treaty. But this question of individual criminal responsibility of Assange is different from the question of responsibility of those related to the release of classified documents…

WikiLeaks Hypocrisy Watch: Library of Congress Edition

by Kevin Jon Heller

The Library of Congress is preventing its employees or visitors using its wireless network from accessing WikiLeaks.  It released the following explanation:

The Library decided to block Wikileaks because applicable law obligates federal agencies to protect classified information. Unauthorized disclosures of classified documents do not alter the documents’ classified status or automatically result in declassification of the documents.

Nothing says freedom quite like a library blocking access to important evidence of government misdeeds.  And, of course, the Library of Congress is not blocking the websites of any of the newspapers that have also disclosed classified documents without authorization — even though “unauthorized disclosures of classified documents do not alter the documents’ classified status or automatically result in declassification of the documents.”

Wikileaks Fallout: No Security Clearances for Bloggers

by Peter Spiro

Well, not quite that broad, but almost.  This letter from career services at Columbia’s School of International and Public Affairs (posted here) is a stunner:

Hi students,

We received a call today from a SIPA alumnus who is working at the State Department.  He asked us to pass along the following information to anyone who will be applying for jobs in the federal government, since all would require a background investigation and in some instances a security clearance.

The documents released during the past few months through Wikileaks are still considered classified documents. He recommends that you DO NOT post links to these documents nor make comments on social media sites such as Facebook or through Twitter. Engaging in these activities would call into question your ability to deal with confidential information, which is part of most positions with the federal government.

Regards,
Office of Career Services

I believe it.  The security clearance apparatus loves bright-line rules (like the rule against security clearances for dual citizens), and this would be one.  Not that it would make a lot of sense, for reasons that I hope are obvious.

UPDATE:  It gets worse.  USAID has banned employees from even talking about the leaked documents in anything but a secure area (no chatting with your spouse about the front page of the NYT!), and from accessing the documents on their home computers.

Why the Benefits of WikiLeaks Far Outweigh Its Dangers

by Kevin Jon Heller

As one of WikiLeaks’ defenders, I feel obligated to respond to Roger’s post.  I have two major disagreements with it.  First, I think it significantly overstates the harm caused by WikiLeaks, although it would be equally erroneous to claim that WikiLeaks has caused no harm whatsoever.  Second — and perhaps more important — it completely ignores the the benefits of WikiLeaks’ disclosures.  Any fair assessment of what WikiLeaks has done, I believe, needs to take both the harms and the benefits into account.

Diplomacy

I have no doubt that some diplomats may respond to WikiLeaks’ disclosures by self-censoring and by avoiding written communications.  But it is difficult to believe that WikiLeaks will have any significant or lasting effect on the US’s ability to engage in diplomacy with friendly or unfriendly governments; after all, this is hardly the first time in U.S. history that diplomatic secrets have been disclosed.  Robert Gates, the Secretary of Defense, said it best a couple of days ago:

Let me just offer some perspective as somebody who’s been at this a long time. Every other government in the world knows the United States government leaks like a sieve, and it has for a long time. And I dragged this up the other day when I was looking at some of these prospective releases. And this is a quote from John Adams: ‘How can a government go on, publishing all of their negotiations with foreign nations, I know not. To me, it appears as dangerous and pernicious as it is novel.’

Now, I’ve heard the impact of these releases on our foreign policy described as a meltdown, as a game-changer, and so on. I think those descriptions are fairly significantly overwrought. The fact is, governments deal with the United States because it’s in their interest, not because they like us, not because they trust us, and not because they believe we can keep secrets. Many governments — some governments — deal with us because they fear us, some because they respect us, most because they need us. We are still essentially, as has been said before, the indispensable nation.

So other nations will continue to deal with us. They will continue to work with us. We will continue to share sensitive information with one another.

Is this embarrassing? Yes. Is it awkward? Yes. Consequences for U.S. foreign policy? I think fairly modest.

Safety

There is also no question that WikiLeaks’ disclosures — particularly the first batch, which it did not redact to remove informants’ names — have the potential to put lives in danger.  But it is important to acknowledge three things.  First, as the government itself has admitted, there is no evidence that anyone has actually been harmed as a result of the disclosures in the six months since the first release of documents.  Second, WikiLeaks has reformed its practices since the first release, as McClatchy acknowledged in the article linked to above…

Why Wikileaks is Harmful

by Roger Alford

One of the underlying issues in the Wikileaks controversy is whether Julian Assange is truly that harmful. His defenders, and even some of his critics, maintain that Assange is not that dangerous. I disagree.

Diplomacy. Diplomacy will be immeasurably more difficult if what government officials say in secret to one another can never be trusted to remain secret. Covert or confidential planning in the national interest, or to further international peace and security, is now compromised. As Simon Chesterman has argued:

The message that is almost certainly going through every major power is: be careful what you commit to writing. In place of candid assessments and provocative analysis, many important decisions will now be based on oral briefings and meetings that are not recorded in minutes. Decision-makers will be wary of openness even with their closest staff…. Such self-censorship will lead to worse decisions and less accountability for the decisions that are made. It seems a high price to pay for gossip.

Safety. Why would anyone–whistleblower, drug cartel mole, counter-terrorist informant, or Afghan ally–ever entrust confidential information to any government official if his identity could be made public on Wikileaks and used against him by his enemies? Keith Yost of MIT has nicely summarized some of the havoc Assange has wreaked on the world:

In a recent interview with The New Yorker, Julian Assange … was asked if he would ever refrain from releasing information he knew might get someone killed. The question was not just hypothetical: a year and a half earlier, Assange had published a study that detailed technical vulnerabilities in actively employed U.S. Army countermeasures against improvised explosive devices. There was no conceivable benefit to publishing the information. The Army needed no extra pressure to address the vulnerabilities — it was already desperately searching for new countermeasures to protect its soldiers. The only beneficiaries were insurgents, who, using Assange’s gift, could better murder U.S. servicemen. In response to the interview question, Assange was blase. Yes, he admitted, there might be some “blood on our hands,” some “collateral damage, if you will.” But unlike the journalistic world at large, he didn’t feel it was his duty to weigh and pass judgment on the value of the information he made public. Transparency, the WikiLeaks founder obstinately insisted, would create a better society for all, and we must be willing to break a few eggs to make the omelette…. He has revealed the names of Afghan civilians who collaborate with U.S. forces, a move that was greeted with joy by Taliban commanders, who quickly promised to hunt down and execute those named. He has betrayed the identities of human rights activists and journalists who, at great risk to themselves, passed information on their conditions to U.S. diplomats. In discussing one source, a diplomat pleads: “Please Protect,” and for good reason — with the informant’s identity now known, there is a serious risk that this the poor woman who trusted the United States will be whisked off to prison or worse.

Transparency. Ironically, Assange’s efforts will actually promote more government secrecy, not less. There will be less sharing of information. The firewalls will be raised higher. As Simon Chesterman put it, “The perverse consequence of this guerrilla transparency will in fact be greater secrecy, worse decision-making, and less accountability in the United States and elsewhere.” Yost agrees:

The greatest irony is that by proving transparency can be used for evil as well as good, Assange hasn’t just harmed our national security, he’s poisoned the very movement he purports to lead. After 9/11, we worked hard to tear down the walls between agencies and encourage a free flow of information that would better help us connect the dots on issues such as terrorism. It is likely that in the aftermath of WikiLeaks’ attack, our government will return to its Cold War ways, silo-ing information, reducing what it writes down, and securing itself against releases, good or bad.

It is interesting that almost no one in the U.S. government–Democrat or Republican–is publicly blasé about the threat. It is only people on the outside looking in who are willing to give Assange a pass.

Wikileaks Spawns New Blog (Don’t Forget Judge Garzon)

by Peter Spiro

And why not?  Assuming that the feds don’t catch up with this operation at this rate (by my calculation) we have more than four years of daily document dumps ahead of us.  From Foreign Policy, let’s welcome Wikileaked to the blogosphere.

Today’s highlights include more accounts of inebriated and otherwise less-than-sparkling eastern European and central Asian leaders.  (Material from these realms is quickly rising to the top of the stack of Wikileaks theater.)  Not yet covered by the folks at FP, nor any MSM outlets in the US: several AmEmbassy Madrid cables dealing with Spanish prosecutors/judges and their use of universal jurisdiction.  (The Guardian covers it here.)  In one cable the ambassador touches base with Spain’s chief prosecutor about the criminal case against top Bush administration officials relating to post-9/11 policies.

Scott Horton among others thinks these contacts inappropriate.  I’m no fan of the Bush era officials, but whatever the national interest means these days it probably includes fending off war crimes charges by foreign courts.  So I’m not so sure there’s a problem with US diplomats working the angles on this (which is not the same thing as saying that the charges are meritless, or even hoping that they fail).

As interesting is the fact that Garzon & Co. agreed to open direct USG channels in the first place.  Some folks in Spain have a problem with that.  Americans would have a problem if the tables were turned:  imagine cables by foreign diplomats reporting conversations with federal judges and prosecutors.  But I bet such cables exist, reporting chatter at cocktail parties and over dinners of rubbery fish.  (There are cables being drafted by foreign diplomats at this moment on the Wikileaks controversy itself reporting diplomatic contacts with DOJ officials about a possible Assange indictment.)  As a descriptive matter, it’s another example of the disaggregation of the state:  where bilateral diplomacy used to be channeled through foreign offices, now it includes just about everybody.

The Hazards of Speaking at the Oxford Union: Will the U.K Arrest Sri Lanka’s President

by Julian Ku

I don’t know enough about the facts or the law in the U.K. to know whether there is a serious basis for charging Sri Lanka’s President Mahinda Rajapaksa with war crimes arising out of the conflict last year with Tamil Separatists.  But it looks like there will be an attempt to force his detention and a war crimes investigation during his visit this week to speak at the Oxford Union.

Lawyers working for Tamil activists are attempting to obtain a war crimes arrest warrant against Sri Lanka‘s president and senior member of his entourage who have arrived in Britain.

Mahinda Rajapaksa, whose government defeated the separatist Tamil Tigers last year amid humanitarian protests about the treatment of civilians trapped in the war zone, is due to speak at the Oxford Union on Thursday.

The visit comes as Tamil supporters claim to have acquired a video showing a former Tamil Tiger colonel being interrogated by Sri Lankan forces. His family allege he was killed after surrendering

I guess the glory of speaking at the Oxford Union outweighs the risk of arrest for war crimes.

Cheney to Be Charged with Bribery in Nigeria

by Kevin Jon Heller

So Business Week reports, noting that Nigeria intends to file a request for a Red Notice with Interpol:

Nigeria will file charges against former U.S. Vice President Dick Cheney and officials from five foreign companies including Halliburton Co. over a $180 million bribery scandal, a prosecutor at the anti-graft agency said.

Indictments will be lodged in a Nigerian court “in the next three days,” Godwin Obla, prosecuting counsel at the Economic and Financial Crimes Commission, said in an interview today at his office in Abuja, the capital. An arrest warrant for Cheney “will be issued and transmitted through Interpol,” the world’s biggest international police organization, he said.

Peter Long, Cheney’s spokesman, said he couldn’t immediately comment when contacted today and said he would respond later to an e-mailed request for comment.

Obla said charges will be filed against current and former chief executive officers of Halliburton, including Cheney, who was CEO from 1995 to 2000, and its former unit KBR Inc., based in Houston, Texas; Technip SA, Europe’s second-largest oilfield- services provider; Eni SpA, Italy’s biggest oil company; and Saipem Construction Co., a unit of Eni. Obla didn’t identify the former officials whom he said held office when the alleged bribes were paid.

Last week, Nigeria arrested at least 23 officials from companies including Halliburton, Saipem, Technip and a former subsidiary of Panalpina Welttransport Holding AG in connection with alleged illegal payments to Nigerian officials. Those detained were all freed on bail on Nov. 29.

These are deadly serious charges.  As Business Week notes, “KBR and Halliburton agreed to pay $579 million in February 2009 for bribery payments in Nigeria that stretched from 1994 to 2004.

It is unlikely, of course, that the US would honor a Red Notice, arrest Cheney, and extradite him to Nigeria.  If the Red Notice is issued — and that, of course, remains to be seen — it will be interesting to hear why not.

UPDATE: For what it’s worth, the far less tendentious FP Blog agrees with me that these charges are serious.

Japan Needs to Brush Up on Its Geography

by Kevin Jon Heller

The quote of the day, from Japan’s failed bid for the 2022 FIFA World Cup (which went to Qatar, much to the surprise of the Americans):

Japan, probably the biggest outsider, threw the longest Hail Mary, suggesting it would beam the games into stadiums all around the world in 3D, digitally replicating the games live in the foreign stadiums. But here its presentation dug to the crux of it in like fashion. That its bid has been relegated to fantasy was most evident by its bizarre clip on the dreams of Japan’s children and the “smiles” it promised to “deliver to 208 countries.”

I realize the number of countries in the world is a political issue, but I’m relatively sure even the most inclusive count does not yield 208.  Or perhaps Japan has learned something new about Transnistria* and a bunch of other independence-minded places from WikiLeaks…

* Edited for stupidity — the original said Moldova.  As my co-blogger Chris points out, Moldova already is a country…

Steve Vladeck on WikiLeaks

by Kevin Jon Heller

The following is a guest-post by Steve Vladeck, Professor of Law at American University.  Our thanks to him for contributing it.

The Espionage Act, the Documents/Information Distinction, and the Press

I’ve been following (with great interest) the exchange between Roger, Kevin, and those who have commented on their posts concerning Julian Assange, the Espionage Act, and the broader question of prosecuting the “media” vs. prosecuting WikiLeaks. Indeed, as Roger noted in one of his comments, I’ve written about the relationship between the Espionage Act and the press previously (I’ve also written a separate piece about the relationship between the Espionage Act and government whistleblowers).

Let me say at the outset that I wholeheartedly agree with Kevin as a pure matter of law — if the dissemination of these cables by WikiLeaks violates the letter of the Espionage Act, I have a hard time seeing how the dissemination of the same by major media outlets (or, dare I say, us) wouldn’t also fall within the terms of the statute. Indeed, 18 U.S.C. § 793(d) and (e) prohibit even the wrongful retention of national defense information, whether one disseminates it or not. The question is whether there might be some other way to legally distinguish between Assange and WikiLeaks, on one hand, and “beneficent” news outlets, on the other. And lest we put too fine a point on it, this is a very big deal; the principal restraint on the scope of the Espionage Act vis-à-vis the media has historically been prosecutorial discretion, not the Constitution. After all, the Supreme Court has steadfastly refused to give the Press Clause of the First Amendment any meaning separate from the Speech Clause, as a result of which it is virtually impossible to say that the First Amendment distinguishes between materials published by a Wiki as compared to by the Paper of Record. If the Constitution doesn’t draw such a line, mightn’t the statute?

Roger is right, methinks, to invoke Floyd Abrams’ argument that courts have read into the statute a “specific intent” requirement, and that these decisions might help the case for drawing such a distinction. Sadly, though, I fear that it’s not nearly as clear-cut as that. As Judge Ellis explained in the AIPAC case in 2006,

In addition to proving that the defendants committed the prohibited acts “willfully,” the statute imposes an additional and significant scienter requirement when a person is accused of transmitting “information relating to the national defense.” Thus, the statute . . . also requires the government to prove that such information was communicated with “reason to believe it could be used to the injury of the United States or to the advantage of any foreign nation.” . . . [T]he statute’s “willfulness” requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nation’s security, and that it was illegal, but it leaves open the possibility that defendants could be convicted for these acts despite some salutary motive. For example, if a person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for “willfully” committing the prohibited acts even if he viewed the disclosure as an act of patriotism. By contrast, the “reason to believe” scienter requirement that accompanies disclosures of information, requires the government to demonstrate the likelihood of defendant’s bad faith purpose to either harm the United States or to aid a foreign government.

Just to drive the point home, as Judge Ellis explained, the disclosure of documents (diplomatic cables, for example) requires proof only of the defendant’s willfulness, i.e., that the act was done voluntarily and intentionally and with the specific intent to do something that the law forbids. That produces a much closer analogy in this case than I suspect many of us are comfortable with. (And perhaps one of many arguments for amending the Espionage Act, a topic on which I testified before Congress in May.)

To be sure, one might find it a bit strange that so much of the blog exchanges over L’Affair Assange has centered on the potential liability of the media. But I think this precise problem — the vanishingly thin legal line between Assange and the press — helps to explain why that’s been the shape of the discourse: we take it as an article of faith and a necessary baseline for a free and independent press that the government will not go after the news media for what it publishes absent the most compelling circumstances, and that, even then, there are often remedies short of criminal prosecution. To that end, no reporter, journalist, or author has ever been prosecuted for violating the Espionage Act, even though it’s not hard to identify numerous examples both recently and historically of publications that the law clearly proscribes. Indeed, prior to the AIPAC case five years ago, the government had never invoked the Espionage Act against any third-party recipient of the leaked/stolen information, focusing prosecutions entirely on the direct culprit.

Of course, going after Assange is not the same thing as going after the press politically. And that’s not an insignificant point. But it is basically the same thing legally — crossing a proverbial Rubicon that even the most secrecy-obsessed, First Amendment-indifferent administrations have consistently refused to attempt to bridge. I leave it for others to decide whether it is nevertheless the “right” thing to do; my point is just to suggest why the Assange case has precipitated this particular conversation, and not just here at OJ.

John Bolton for President (No Joke!)

by Peter Spiro

From an interview with Jennifer Rubin, a new conservative blogger on the WaPo:

Bolton has begun to talk openly to conservative gatherings and media about his interest in a 2012 presidential run. “I’m seriously considering it,” he told me in an interview, in large part because of the “lack of foreign policy debate.” Having gotten past the idle chatter stage, he says he’s going to make the decision “in a very deliberate way” and suggests that making up his mind by mid-2011 is “not unreasonable.” He contends that he stands as good a chance as anyone. “The race is wide open,” he says.

Is it really that wide open?  I don’t see Bolton as someone who would take very well to retail politics, a Pat Buchanan without the charm.  But his candidacy would supply a gauge of anti-internationalist sentiment among Republican voters (for what it’s worth, I think it’s waning).

How to Extradite Julian Assange to the United States

by Roger Alford

I had a colleague ask an interesting question, “If Julian Assange is indicted and detained in London, would the U.S.-U.K. extradition treaty authorize extradition to the United States?” There’s not an easy answer.

The U.S.-U.K. Extradition Treaty requires “double-criminality”–the offense must be punishable in both States. Not surprisingly, the United Kingdom imposes criminal penalties for disclosing state secrets. Article 5 of the Official Secrets Act of 1989 provides a “person into whose possession the information, document or article has come is guilty of an offence if he discloses it without lawful authority knowing, or having reasonable cause to believe, that it is protected against disclosure by the foregoing provisions of this Act and that it has come into his possession” as a result of disclosure “by a Crown servant or government contractor without lawful authority.”

Article 4 of the treaty does, however, provide that “extradition shall not be granted if the offense for which extradition is requested is a political offense.” According to Black’s Dictionary, political offenses are “crimes directed against the security or government of a nation, such as treason, sedition, espionage, murder during a revolution, etc.” Thus, it may be difficult to extradite Assange for espionage, but easier to extradite him for various computer crimes, such as disclosing trade secrets, engaging in economic espionage, or criminal copyright infringement. If and when Assange unlawfully discloses confidential documents of major banking institutions, this will be an additional grounds for extradition and criminal prosecution.

An additional problem is that Assange is wanted by more than one State. Sweden issued an international arrest warrant on November 20 as a result of allegations that Assange committed sex crimes. Article 15 of the U.S.-U.K. Extradition Treaty requires that the British government weigh numerous factors in deciding where to extradite, including the gravity of the offenses and the chronological order in which the requests were received. Thus, it is quite possible that Assange would be extradited to Sweden before he would be sent to the United States.