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.

http://opiniojuris.org/2010/12/14/rare-honesty-about-wikileaks-and-american-exceptionalism/

23 Responses

  1. Yes, that’s what they are- “excesses”. “Mistakes” too.

    Yes- the system can be saved. The people who run this country are fundamentally moral and ethical and just make “mistakes” and do some “excess” stuff once in a while.

    That’s good to know- cause I was getting worried there.

  2. Response…When one lives in a corrupt and corrupted world one must start somewhere. Considering the crimes of the U.S., the nation that desires to rule the world a little transparency would seem an ideal effort. I applaud Mr. Assange.

    Regards China: Their corruption is self evident.

  3. Professor Heller,

    Why do you have the word “democracies” in quotes? I put quotes in words when I want to use satire — e.g., Professor Heller’s use of “facts,” Professor Heller’s “acknowledgement” that he was wrong about the holding in Lotus, Professor Heller’s “selective” editing of the New York Times piece on Lynne Stewart, Profess … never mind, you get the point. Are you trying to argue that the United States is actually not a democracy? Or that China is a democracy?

  4. I’m curious how this has to do with what is classicly referred to as American exceptionalism. Are you just meaning America wanting to be excepted from the rules of nations? Because while that could potentially be a meaning, it’s not the common one. I thought it had more to do with (this is a rough outline) the history, position attitude and circumstances of the U.S. being unique and powerful in a positive way. I’m not sure what that has to do with Ben Wittes quote. Perhaps you could elaborate.

  5. Yes, America is a “democracy” where people are ruled by two very similar parties who, though have different rhetorics, rule in a rotating fashion representing the interests of the powerful. The problem is that most Americans don’t realize this, and instead they are constantly being made to focus on China which is ruled by one party who claims that it represents the people.

  6. America is a one-party state, since the end result is virtually identical no matter what “party” wins elections. It is the rich few who has the power through their corporations.

  7. Imagine that Mister Smart kills your twelve year old daughter and sells her organs; at least, this is what you are pretty firmly convinced is the case, especially since you have seen it yourself, together with several witnesses. By chance, it was filmed from different angles. You also have similarly compelling evidence that he has sold her organs. You confront Smart with your argument, but he denies that he has committed a crime.

    Confronted with your accusation, he replies using one or more of the following arguments:

    1.    ”You are a little bit short-sighted, your cameras are flawed and all your witnesses are unreliable junkies who cannot discern the difference between a human and a cow.”
    2.    ”Yes, indeed, I took her life, and I feel the pain very deeply, I feel compassion and I am empathic with you, but I could not do otherwise”. He then adds one of the following:
    o    ”She attacked me with a weapon and I had to defend myself.”
    o    ”I have suffered terribly unfortunate brain damage and lose control of myself sometimes.”
    o    ”I didn’t sell her organs, but used them for seminal scientific research and have discovered a cure for a sickness that will save the lives of billions of children in the future, children who would otherwise die before they were ten. It is the same sickness that your other two children have, and thus I could save them.”
    3.    ”The whole story is a mendacity intended only to destroy my magnificent self. You are just jealous of my freedom, my money, and my moral and intellectual superiority.”

    Given the situation, and as the reasonable person you are, you try to remain tranquil. You propose to Smart that you take the matter to a competent, neutral and detached, third party with as few interests at stake as is possible; namely, to a judge or some kind of a court.

    Smart reacts with indignation at the accusation leveled against him and at the waste of his valuable time and says that he is not going to let a judge make the final decision, since he is good and certain that his argument is more than solid. In short, he demands the freedom to be the sole arbiter in respect of his guilt.

    Would you let the matter to rest? If not, why would one give the U.S. the privilege to act as judge in its own cases?

  8. Well said. From my point of view, the quotes are in place. Based on the presumption that modern democracies are found on the rule of law principle, it is harder and harder to see the USA as such in international relations. On the other hand, the media campaign against Assange is itself a good proof of existing democracy in the USA – otherwise the political expressions used by US politicians striving for reelection would not be that sharp and reckless of laws.

  9. Kevin,

    As you know, there are well-recognized international law principles authorizing states to impose criminal penalties for conduct of foreign nationals that occurs at home and abroad.  Obviously, some of Assange’s conduct occurred within the United States (publication of classified documents within the United States) and therefore that part is easy. 

    But it is also well-recognized that in limited circumstances countries can prosecute foreigners for conduct that occurs abroad (such as foreign drug cartels, foreign anti-competitive monopolies, international terrorists, etc.).  The International Bar Association (on page 142 of this report) has summarized the current state of international law on this subject:

    “[A]lmost all states exercise ‘pure’ extraterritorial criminal jurisdiction on one or more of four principal bases: the active personality principle, the passive personality principle, the protective principle and the universality principle. The active and passive personality principles reflect every state’s interest in punishing crimes by or against its nationals abroad; the protective principle acknowledges every state’s right to protect certain vital interests; and the universality principle largely reflects the fact that there are a limited number of crimes which, by their nature, affect the interests of all states.”

    So, if either the United States or China can satisfy any of those criteria, then they have the authority under international law to prosecute a foreign national for foreign conduct. 

    Roger Alford

  10. The legal equality of states in the international system is based upon the lie of moral equality. The United States and China are NOT the same and, in the ideal world, should not be treated the same. The fundamental flaw of international law is its failure to recognize this.

  11. @Nathan

    ==The legal equality of states in the international system is based upon the lie of moral equality. The United States and China are NOT the same and, in the ideal world, should not be treated the same. The fundamental flaw of international law is its failure to recognize this.==

    Do you mean that in the United States if one has a higher moral quality one is allowed to commit crimes that criminals are not allowed to and that the high moral individuals are allowed to judge their own cases? For instance Al Capone would be tried by a judge for killing a person, but if Mother Theresa did it, she would not have to stand trial and she would be the sole judge of her actions?

  12. @ Mihai

    Domestic law can distinguish, for instance, between a child abuser and a parent that merely spanks the child because it’s able to recognize the two parties are morally different. International law does not, China and the United States are completely equal and right in the eyes of international law, regardless of whether the United States affords due process to people who criminally leak classified information, or that China extrajudiciously locks up dissidents for only disagreeing with public authorities.

  13. @Nathan

    ==States are completely equal and right in the eyes of international law, regardless of whether the United States affords due process to people who criminally leak classified information, or that China extrajudiciously locks up dissidents for only disagreeing with public authorities.==

    Well, I’m not a specialist, but as far as I know, there is an international standard of due process. That means that China is expected by the international law to respect that. This means that IL asks the same of them both.

    And whether or not China respects those norms depends also on the American attitude. And we all know that the American attitude chooses to have cheap toys made by the Chinese children for the American ones, rather then demand China to respect IL.

    Besides, there were numerous propositions to strengthen the position of the individual in the international law. For instance states proposed that the individual should have legal standing before the PCIJ. Australia proposed very seriously in the 40′ to enact an International Court for Human Rights, and U.S. refused that, together with the other usual suspects. Thus, from this side of the fence it seems that the U.S. is just as big criminal as China, Russia and other mafiosi.

    And last, but not least, the subject was American exceptionalism. And nobody has explained to me, why a victim of American actions should accept that the U.S. considers itself above the law and reserves itself the right to act as ultimate and self proclaimed godly omniscient judge of its own actions. I don’t really care whether China kills me in Tibet or the U.S. blows up my baby with a drone. What I want is that I should be able to sue both of them at international courts and force them do or refrain from something.

  14. The US claims and represents itself, constantly and rather repetitively and loudly, to itself and the rest of the world as a member of a club–those countries that are democracies.  As such, there is more of a burden on the U.S. to self correct in the face of a gap between claims to be following the rule of law and efforts to bend the rule of law to fit a particular, unsubtle and authoritarian political agenda. 

    “To form a more perfect union,” signals the experimental character of the U.S., as in continual self-correction and working toward an ideal, not behaving in authoritarian ways and running around harumphing in the age of a globalized media no less about the need for “internet freedom,” in China or Iran. 

  15. @NewStream Dream: quotes are often used to, you know, quote others. In this case, Ben Wittes.

  16. The US is a democratic state? Really? When was the last time the government did something that actually benefited you? How about the last time they screwed you out of a fundamental right? Want to see a slave? Look in a mirror.

    Now, if you’ll excuse me, I’m off the the airport for my bi-weekly TSA molestation. If I’m good maybe they’ll give me cancer too. Can’t wait.

  17. I’m a little confused as to how American Exceptionalism figures into this.  I’m an American, so I favor revelations that harm my enemies, and oppose those that harm me.  I assume most people would exercise a similar amount of self-interest, regardless of nationality.

    As for my own personal beliefs on Wikileaks, I think the US government is trying very hard to shoot the messenger.  It wasn’t Assange who stole the secret cables.  We don’t plug any security holes simply by destroying the Wikileaks organization, and I don’t think we’ll successfully intimidate others who would do the same.

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