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US Diplomacy and National Security

Will Ratifying UNCLOS Help the U.S. Manage China? I Doubt It

by Julian Ku

A subcommittee of the  U.S. House of Representatives’ Foreign Affairs Committee held a much-needed hearing to educate themselves on China’s recent activity in the East and South China Seas.  Professor Peter Dutton of the Naval War College, along with two other experts on Asian affairs, gave interesting and useful testimony on the nature of China’s maritime disputes with Japan, the Philippines, Vietnam, and other Asian countries.

There is a lot of interesting stuff here, but my attention was particularly caught by Professor Dutton’s recommendation (seconded by Bonnie Glaeser of the Center for Strategic and International Studies) that the U.S. ratify the UN Convention on the Law of the Sea (UNCLOS) as part of a multifaceted strategy to manage China’s sort-of-aggressive strategy to expand its power and influence in the region.  Here is Professor Dutton’s argument:

Accordingly, to ensure its future position in East Asia, the United States should take specific actions to defend the international legal architecture pertaining to the maritime and aerial commons. Acceding to the United Nations Convention on the Law of the Sea and once again exercising direct leadership over the development of its rules and norms is the first and most critical step. The Department of State should also re-energize its Limits in the Seas series to publicly and repeatedly reinforce international law related to sea and airspace. A good place to begin the new series would be with a detailed assessment of why international law explicitly rejects China’s U-shaped line in the South China Sea as the basis for Chinese jurisdiction there. Others could be written to describe why China’s East China Sea continental shelf claim misapplies international law and why China’s ADIZ unlawfully asserts jurisdiction in the airspace. My sense is that East Asian states, indeed many states around the world, are desperate for active American leadership over the norms and laws that govern legitimate international action.

I understand the force of this argument. The U.S. already adheres the key principles in UNCLOS, so joining UNCLOS will allow the U.S. to push back more effectively against China’s aggressive and expansionary activities.

But is there really any evidence that formal accession would change China’s view of the U.S. position on UNCLOS issues?  China is already a member of UNCLOS and other countries (like Japan and the Philippines) are also members of UNCLOS. But I don’t think UNCLOS has really bolstered their effectiveness in pushing back against China.  Moreover, as Professor Dutton explains, China has a radically different interpretation of its authority to regulate foreign ships and aircraft in its Exclusive Economic Zone under UNCLOS.  How will joining UNCLOS help the U.S. change China’s interpretation of UNCLOS?

As a practical matter, UNCLOS does have a way of compelling member states to conform their interpretations: mandatory dispute settlement in the International Tribunal for the Law of the Sea or in Annex VII arbitration.  But as China and Russia have demonstrated in recent years, these mechanisms are not likely to be a serious constraint, especially on questions that touch sovereignty (which is how China frames most of its activities).  I suppose if the U.S. joins UNCLOS, and subjects itself to UNCLOS dispute settlement, that might make a difference.  But I don’t think it would be a very large one (after all, Japan, China, and the Philippines are all already subject to UNCLOS dispute settlement, which has accomplished little so far).

I should add that the U.S. joining UNCLOS is hardly the most prominent of Professor Dutton’s recommendations.  His (and his co-panelists) had lots of good strategic policy recommendations.  I think the law may be important here, but I am skeptical that it will be as effective as he (and many analysts) are hoping.

Is the New Iranian Nuclear Deal a Secret Treaty?

by Duncan Hollis

Well, it’s not exactly a secret treaty in the sense that yesterday, the news wires were abuzz about the fact that the United States, Iran and five other world powers concluded an agreement to implement Iran’s earlier November deal on its nuclear program.  But, what’s being held back is the actual text of the deal.  There’s not many details (the only story I found on this was here). Still, at this point it’s not clear whether or not yesterday’s implementing agreement is actually a treaty or just another political commitment like the deal last November?  Assuming it is legally binding, it’s also unclear as to why the text is not being released?  Is this just a temporary delay pending a good scrub by treaty lawyers of the final text and any language/translation issues?  Or, is it that some of the implementation agreements’ contents are being treated as classified by one or more of the participants/parties such that they have no intention of ever releasing the text?

Now, as I’ve written in the past, there’s a tendency among students of international relations to assume that secret treaties died with Woodrow Wilson’s fourteen points of light speech and its admonition for “open covenants of peace, openly arrived at, after which there shall be no private international understandings of any kind.”  That view was codified, first in Article 18 of the Treaty of Versailles, and later (in a looser form) in Article 102 of the U.N. Charter (requiring Member States to register and allow to be published ”[e]very treaty and every international agreement” they make with the understanding that unregistered treaties may not be invoked before any organ of the United Nations).  But, as far as international law is concerned, reports of the extinction of secret treaties appear exaggerated.  As D.N. Hutchinson noted here back in 1993, Article 102 is most often honored in the breach, and has little relevance today to determining the legal status of an agreement (the ICJ appears to agree given its holdings in the jurisdictional phase of Qatar v. Bahrain).  Thus, I’m not terribly surprised by the idea that the text of the deal may be secret even if its existence is not (particularly given the ‘nuclear’ subject-matter).  Moreover, I don’t think the fact that Iran and these other States concluded it without making the text publicly available will deny it the status of a treaty under international law.

A more important question may be, given the reality of some significant Congressional hostility to the deal, whether keeping its text secret will prove problematic under U.S. law or the domestic law of any of the other State participants?  I can’t speak to the domestic law of other States, but on the U.S. front, I have my doubts. There are obvious questions as to what legal authority the United States has to conclude this implementation agreement (i.e. is it a sole executive agreement, or does the Obama Administration view some existing legislative authority as sufficient to treat it as a congressional-executive agreement?).  Assuming legal authority to conclude an implementation agreement, however, there is statutory authority for it to be done in secret provided the Executive Branch follows the appropriate procedures under the 1972 Case-Zablocki Act:

The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing), other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than sixty days thereafter. However, any such agreement the immediate public disclosure of which would, in the opinion of the President, be prejudicial to the national security of the United States shall not be so transmitted to the Congress but shall be transmitted to the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives under an appropriate injunction of secrecy to be removed only upon due notice from the President. Any department or agency of the United States Government which enters into any international agreement on behalf of the United States shall transmit to the Department of State the text of such agreement not later than twenty days after such agreement has been signed. (emphasis added)

Simply put, U.S. law accepts and regulates secret treaties and other international agreements. Thus, I don’t think the fact of its secrecy will sway proponents (or opponents) of this deal one way or another.  Even so, I’m curious to know more about the Iranian implementation agreement.  Is it intended to be legally binding or a political commitment?  And, if it’s a treaty, what’s the Executive Branch view as to the legal authority to conclude it short of getting new legislation or going to the Senate under Article II of the Constitution?  I’d welcome comments from readers who know more details here than I do.

Hat Tip:  Orde Kittrie

Why the U.S. State Department Deserves an “F” on their Handling of the Indian Consul Flap

by Julian Ku

It looks like the U.S. and India have worked out a sort-of deal to end the battle over visa-fraud charges brought against India’s deputy consul-general in New York Devyani Khobragade.  Yesterday, a U.S. grand jury indicted Khobragade on the visa-fraud charges, and shortly thereafter, Khobragade was allowed to leave the U.S. for India.  India is now retaliating by demanding the U.S. withdraw a U.S. diplomat from India.

From a purely legal perspective, this is a smart move by the U.S. since even if it had continued with the prosecution, Khobragade would be able to raise a variety of defenses based on her possible status as a diplomat accredited at India’s UN Mission at the time of her arrest, or at least her status at the Mission now.  I think those defenses are decent (though hardly slam-dunk) and, if rejected, would further inflame India as well as create unwelcome precedents for US consuls and diplomats abroad.

Of course, from a diplomatic perspective, it seems clear to me that this prosecution should never have been brought, or at least there should never have been an “arrest” (much less the strip-search).  Why couldn’t the U.S. have indicted her without arresting her, or even just demanded her withdrawal without indicting her?  That is effectively what has happened anyway, except that we also get a crisis in US-India relations like we haven’t had in decades.

I’m putting the blame here almost completely on the U.S. State Department. They (supposedly) had notice that this arrest was going to happen, and they did not take steps to head off a pretty serious diplomatic incident.  Dealing with foreign diplomats is at the heart of what they do.  And they couldn’t have predicted what happened here?  C’mon Secretary Kerry, hold someone responsible!

I’ve just finished my grades from last semester (yes I know, I’m late!).  But I have no problem giving the U.S. State Department an “F” here.

Why the Muslim Brotherhood (Wrongly) Believes the ICC Can Investigate

by Kevin Jon Heller

Gidon Shaviv called it. The Muslim Brotherhood does indeed believe that it can accept the ICC’s jurisdiction on an ad hoc basis because it is still the legitimate government of Egypt:

Just how successful the ICC action will be is unclear. Egypt is one of the few countries that have not accepted the ICC’s jurisdiction. However, Mr. Dixon and other members of the legal team said the court can act if it receives a declaration from the government accepting the court’s jurisdiction in a particular case. They argued that Mr. Morsi’s government is the still only legitimate ruler in Egypt and it has issued that declaration to the ICC.

“We hope, and we have good reason to believe, that the court will take this declaration seriously,” said John Dugard, a human rights lawyer from South Africa who is involved with the case and who has also worked with the United Nations.

With respect to Dugard, I think the Brotherhood’s efforts are doomed to fail. Had the Morsi government filed its declaration while it was still in power (as in the Cote d’Ivoire situation), that would have been one thing. But it didn’t — and although there are interesting political questions about the legitimacy of the military-led coup/revolution, I don’t think there is much question that the Brotherhood is no longer the government of Egypt. A number of states have condemned the Egyptian military’s actions (see Wikipedia here for a nice rundown pro and con), but none to my knowledge have refused to recognize the Mansour government. And just as importantly, representatives of the Mansour government have continued to represent Egypt at the UN.

Readers who know more about the recognition of governments after coups/revolutions should feel free to weigh in. But even if I’ve understated the legal strength of the Brotherhood’s position, I still find it inconceivable that the OTP will conclude that it has jurisdiction over the situation in Egypt. At the very least, the OTP will likely do what it did with Palestine’s ad hoc declaration — say that the issue is for the Assembly of States Parties, not the Office of the Prosecutor, to resolve.

Exploring International Law with Opinio Juris in 2013: Highways, Back Roads, and Uncharted Territories…

by Chris Borgen

There’s never a boring year in international law and 2013 turned out to be particularly eventful: Syria, major cases in front of national and international courts, a possible nuclear deal with Iran, and turmoil in Eastern Europe, Egypt, and South Sudan, to name but a few reasons.

This post is not an attempt to log all that we have written about on Opinio Juris this year. There’s just too much.  If any of these topics (or others) are of particular interest to you, you can use our search function to find the posts related to them.  Rather, this post is an idiosyncratic tour of some of the highways, back roads, and other territory that we traversed in 2013… (Continue Reading)

Daphne Eviatar on the Military Commission Train Wreck

by Kevin Jon Heller

Train wreck, fiasco, disaster, dumpster fire, bad joke, kangaroo court, show trial — take your pick, the description applies. Eviatar’s post at Just Security a while back is a must-read; here is but one particularly disturbing snippet:

Recent pre-trial hearings have revealed, for example, that the Guantanamo courtroom was equipped with microphones able to eavesdrop on privileged attorney-client communications; that the CIA was secretly monitoring the hearings and, unbeknownst to the judge, had the ability to censor the audio feed heard by observers; and that the meeting rooms where defense lawyers met their clients had been secretly wired with video and audio monitors, hidden in devices made to look like smoke detectors. In addition, all legal mail is screened by government security personnel, and documents previously deemed acceptable were later confiscated from the defendants’ prison cells without explanation; those documents included a detainee’s own hand-written notes or a photograph of the grand mosque in Mecca.

Seventy years ago, the United States bent over backwards to provide high-ranking Nazis with fair trials. These days, a fair trial for someone as unimportant as bin Laden’s driver is nothing but a dream. How far the mighty have fallen.

NYU’s Selective Defence of Academic Freedom

by Kevin Jon Heller

John Sexton, the controversial President of NYU, has spoken out against the American Studies Association’s much-debated resolution in favour of boycotting Israeli universities. Here is his statement, issued jointly with NYU’s provost:

We write on behalf of New York University to express our disappointment, disagreement, and opposition to the boycott advocated by your organization of Israeli academics and academic institutions.

This boycott is at heart a disavowal of the free exchange of ideas and the free association of scholars that undergird academic freedom; as such, it is antithetical to the values and tenets of institutions of advanced learning.

I have no desire to wade into the debate over academic BDS, other than to say I’m generally wary of academic boycotts, but find it distressing that those who criticize the ASA for undermining academic freedom somehow never get around to criticizing Israel for its ongoing repression of Palestinian academics and students.

That said, NYU is the last university that should be issuing flowery defences of academic freedom. As Anna Louise Sussman points out in The Nation, President Sexton has not only refused to criticize the repression of academics in the UAE, where NYU has a campus, he has made statements that actually justify that repression:

Since April 8 the Emirati government has arrested five prominent Emiratis—activists, bloggers and an academic—for signing a petition calling for reform, and thrown them in jail, where they remain to this day. They are being held without charges, although they are in contact with their families and lawyers.

[snip]

Dr. Christopher Davidson, a reader in Middle East politics at Durham University who specializes in the politico-economic development in the Gulf, believes that by arresting people like Professor bin Ghaith, a high-profile academic, the government hopes to show that no one—no matter how connected they are—is beyond the government’s reach. Even Professor bin Ghaith’s connections to Paris-Sorbonne couldn’t save him, although Davidson chalks that up to the Sorbonne’s notable lack of response.

[snip]

According to NYU sociology Professor Andrew Ross, who has been an outspoken critic of the university’s involvement in the autocratic city-state, NYU president John Sexton recently told a group of concerned faculty members that he had reason to believe those arrested were a genuine threat to national security, something that Professor Lockman finds “particularly shocking.”

“He suggested that these people were genuinely subversive and deserving of arrest, although human rights organizations, of course, have a different take,” said Lockman. “This kind of toadying to the crown prince and his ilk shows the hollowness of NYU’s role in this place.”

Ross and his colleagues at the New York chapter of the American Association of University Professors sent a letter addressed to Dean Sexton and Vice-Chancellor Al Bloom, warning that “Silence on this serious issue will set a precedent that could also have ominous consequences for the speech protections of NYUAD faculty.”

Apparently, academic freedom is important to NYU only when it’s Israeli academics whose freedom is at stake. The academic freedom — and actual freedom — of academics in states in which NYU has business interests? Not so much.

Hat-Tip: Max Blumenthal.

NOTE: For more about President Sexton’s unwillingness to defend academic freedom in the UAE, see this essay in The Atlantic. The articles notes that, ironically, the UAE discriminates against Israeli students who want to study in the country.

“Love is Greater than Treaties”

by Duncan Hollis

That’s the punchline of a podcast Radiolab just released this week, provocatively titled “Sex, Ducks and The Founding Feud”.  Along with John Bellinger, Joseph Ellis and Nick Rosenkranz, I was interviewed for the story by Jad Abumrad and Kelsey Padgett.  It was a fun experience overall trying to explain to a general audience the importance of the US treaty power and how it plays out in the Bond case, and Missouri v Holland before that. On the whole, I enjoyed hearing some fabulous sound editing (which is not surprising given Jad’s previous work won him a McArthur Genius award). Entertaining as it is though, I also found the piece quite thoughtful in framing the importance of the treaty power and offering both sides of the arguments, even if one might quibble over a few details here and there (eg the constitutionality of the implementing legislation versus that of the treaty).

Interested readers can take a listen here.

 

 

Glitter, the New Anthrax

by Kevin Jon Heller

Oklahoma City police are obviously upset that the UK has pulled ahead of the US in the competition to have the most absurd definition of terrorism. Hence this:

On Friday, Oklahoma City police charged a pair of environmental activists with staging a “terrorism hoax” after they unfurled a pair of banners covered in glitter—a substance local cops considered evidence of a faux biochemical assault.

Stefan Warner and Moriah Stephenson, members of the environmental group Great Plains Tar Sands Resistance, were part of a group of about a dozen activists demonstrating at Devon Tower, the headquarters of fossil fuel giant Devon Energy. They activists were protesting the company’s use of fracking, its role in mining of Canada’s tar sands, and its ties to TransCanada, the energy company planning to construct the Keystone XL pipeline. As other activists blocked the building’s revolving door, Warner and Stephenson hung two banners—one a cranberry-colored sheet emblazoned with The Hunger Games ”mockingjay” symbol and the words “The odds are never in our favor” in gold letters—from the second floor of the Devon Tower’s atrium.

Police who responded to the scene arrested Warner and Stephenson along with two other protesters. But while their fellow activists were arrested for trespassing, Warner and Stephenson were hit with additional charges of staging a fake bioterrorism attack. It’s an unusually harsh charge to levy against nuisance protestors. In Oklahoma, a conviction for a “terrorist hoax” carries a prison sentence of up to 10 years.

Oklahoma City police spokesman Captain Dexter Nelson tells Mother Jones that Devon Tower security officers worried that the “unknown substance” falling from the two banners might be toxic because of “the covert way [the protesters] presented themselves…A lot were dressed as somewhat transient-looking individuals. Some were wearing all black,” he says. “Inside the banners was a lot of black powder substance, later determined to be glitter.” In their report, Nelson says, police who responded to the scene described it as a “biochemical assault.” “Even the FBI responded,” he adds. A spokesman for Devon Energy declined to comment.

Nothing quite says terrorism like transient-looking individuals wearing black. And, of course, we have all been deeply unsettled by new black anthrax that’s all the rage with al-Qaeda youth today.

Ain’t glitter terrorism fabulous?

When the “Things to Come” are Already Here, Where Should International Law Go?

by Chris Borgen

Novelists such as H.G. Wells and George Orwell used fantastic fiction to describe their world as it was and to imagine, to use Wells’ title, “The Shape of Things to Come.” This past summer I wrote a post on what current science fiction can bring to international law. I mentioned various books that, though fantastic, illuminated topics related to international law, international relations, or national security.

Well, according to my tricorder, I mean, the newsfeed on my smartphone, this past week reality just got a little more science fictional with the revelations of US intelligence agents roaming around in World of Warcraft and Second Life, on the hunt for any terrorist who might be using these virtual worlds to communicate, plot, and even train.

For all the surprise this has elicited, this isn’t the first time we’ve seen virtual worlds (weirdly) interact with the very real world of international relations. There was that time that the Green Lantern Corps had to patrol a virtual refugee camp that had been built by human rights activists in Second Life’s Sudan in order to protect it from vandals.  Or that proprietary financial system owned by a Chinese company that would support financial transfers and investments across the economies of different virtual worlds.  Or that time that NATO commissioned an interactive model of Afghanistan for planning and training.  And then there’s the Swedish Embassy in Second Life

So, Snowden reveals that U.S. intelligence agents are posing as, let’s say, warrior elves and they’re running around on quests in World of Warcraft looking for al Qaeda organizers.  I’m just not all that surprised.  It is a bit amusing, though, that there ended up being so many intelligence officers online that they had to set up a “deconfliction group” to keep track of who was really whom, so that some Jack Ryan posing as a warrior elf wouldn’t report a wizard as being an al Qaeda operative when that wizard is actually a US agent posing as an al Qaeda operative who’s avatar is a wizard. This truly is “The Looking Glass War.”

These are the types of scenarios one sees in “political science fiction.” Sci-fi bloggers have remarked that the Snowden revelations are not that different from plot points in Neal Stephenson’s novel REAMDE, one of the books I mentioned in my post this summer.  And another author that I wrote about, Charles Stross, has decided to not write the third book in his near future cybercrime trilogy because the present is already arriving at his imagined future. Here’s how Stross put it:

At this point, I’m clutching my head. “Halting State” wasn’t intended to be predictive when I started writing it in 2006. Trouble is, about the only parts that haven’t happened yet are Scottish Independence and the use of actual quantum computers for cracking public key encryption (and there’s a big fat question mark over the latter—what else are the NSA up to?).

I’m throwing in the towel.…<snip> …The science fictional universe of “Halting State” and “Rule 34″ is teetering on the edge of turning into reality. Meanwhile, the financial crisis of 2007 forced me back to the drawing board for “Rule 34″; the Snowden revelations have systematically trashed all my ideas for the third book.

Our colleagues in the world of architecture and design have “design fiction”: films and websites devoted to as-yet non-existent objects as a means of thinking about the possibilities of design and engineering and their relationship to society.  Here are three very different examples (noted by Tobias Revell in the previous link): “New Mumbai,” “Microsoft’s Productivity Future Vision,” and “Post CyberWar.”

As lawyers, we spend much of our time looking at precedent, at the lessons of history.  We cannot stop doing that, as history is the great teacher. But we also have to remember that with every passing second, the future arrives. And, like the writers, the designers, the engineers, and the architects, we have to imagine what things may come, and how our work may shape the future and how the future may shape our work.

Because law is itself a disruptive technology.

The OTP’s Remarkable Slow-Walking of the Afghanistan Examination

by Kevin Jon Heller

The Office of the Prosecutor (OTP) at the ICC just released its 2013 Report on Preliminary Examination Activities. There is much to chew over in the report, but what is most striking is the OTP’s slow-walking of its preliminary examination into crimes committed in Afghanistan.

The OTP divides preliminary examinations into four phases: (1) initial assessment, which filters out requests for investigation over which the ICC cannot have jurisdiction; (2) jurisdiction, which asks “whether there is a reasonable basis to believe that the alleged crimes fall within the subject-matter jurisdiction of the Court”; (3) admissibility, which focuses on gravity and complementarity; and (4) interests of justice, whether the OTP should decline to proceed despite jurisdiction and admissibility.

The OTP opened its investigation into the situation in Afghanistan in January 2007. Yet only now – nearly seven years later – has the OTP concluded that there is a reasonable basis to believe that crimes were committed there. And what are those crimes? Here is a snippet from the report:

23. Killings: According to the United Nations Assistance Mission in Afghanistan (“UNAMA”), over 14,300 civilians have been killed in the conflict in Afghanistan in the period between January 2007 and June 2013. Members of anti-government armed groups were responsible for at least 9,778 civilian deaths, while the pro-government forces were responsible for at least 3,210 civilian deaths. A number of reported killings remain unattributed.

24. According to UNAMA, more civilians were killed by members of anti- government armed groups in the first half of 2013 than in 2012. Members of the Taliban and affiliated armed groups are allegedly responsible for deliberately killing specific categories of civilians perceived to support the Afghan government and/or foreign entities present in Afghanistan. These categories of civilians, identified as such in the Taliban Code of Conduct (Layha) and in public statements issued by the Taliban leadership, include former police and military personnel, private security contractors, construction workers, interpreters, truck drivers, UN personnel, NGO employees, journalists, doctors, health workers, teachers, students, tribal and religious elders, as well as high profile individuals such as members of parliament, governors and mullahs, district governors, provincial council members, government employees at all levels, and individuals who joined the Afghanistan Peace and Reintegration Program and their relatives. The UNAMA 2013 mid-year report, in particular, indicated a pattern of targeted killings of mullahs who were mainly attacked while performing funeral ceremonies for members of Afghan government forces.

You can see why it took the OTP nearly seven years to determine (para. 35) “that there is a reasonable basis to believe that crimes within the Court’s jurisdiction have been committed within the situation of Afghanistan.” The crimes are so minor and so isolated that they could only be uncovered by years of diligent investigation.

The OTP obviously could have moved to Phase 3 — admissibility — years ago. So why didn’t it — especially given the pressing need for a non-African investigation? See below…

Even in Defeat, the DOJ Is Petty Regarding Assange

by Kevin Jon Heller

According to the Washington Post, the Department of Justice has essentially decided against trying to prosecute Julian Assange for publishing the Chelsea Manning documents:

The officials stressed that a formal decision has not been made, and a grand jury investigating WikiLeaks remains impaneled, but they said there is little possibility of bringing a case against Assange, unless he is implicated in criminal activity other than releasing online top-secret military and diplomatic documents.

The Obama administration has charged government employees and contractors who leak classified information — such as former National Security Agency contractor Edward Snowden and former Army intelligence analyst Bradley Manning — with violations of the Espionage Act. But officials said that although Assange published classified documents, he did not leak them, something they said significantly affects their legal analysis.

“The problem the department has always had in investigating Julian Assange is there is no way to prosecute him for publishing information without the same theory being applied to journalists,” said former Justice Department spokesman Matthew Miller. “And if you are not going to prosecute journalists for publishing classified information, which the department is not, then there is no way to prosecute Assange.”

If true, this is very good news indeed. Some of us have been pointing out for a very long time that if publishing classified documents is espionage, Bill Keller deserves to be in the dock just as much as Julian Assange.

Note, though, the clear distinction the DOJ spokesman draws between Julian Assange and “journalists.” Assange is no less a journalist than Mark Mazzetti — and a far better one than, say, Judith Miller. To claim otherwise is just petty.