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.
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.
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.
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:
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.
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.
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.
Peter’s posts on how Wikileaks actually makes the US and its diplomatic service look fairly good are spot on. The Foreign Service looks a lot more interesting now that I know I get to spy for the U.S., too! But as this article from Slate notes, Secretary Hillary Clinton made it official State Department policy (“The “National Human Intelligence Directive on the United Nations“) to secretly gather “biometric” and other information on foreign and U.N. diplomats. This is very cool and I am glad to hear that she ordered this, but it is…umm… almost certainly a violation of U.S. obligations under international law. As the Guardian quotes a U.N. spokesman,
Within hours of the release of America’s “National Human Intelligence Directive on the United Nations“, Farhan Haq, the UN secretary general’s acting deputy spokesman, issued a pointed statement reminding member states that the UN relies on their adherence to treaties and agreements about respecting the institution’s inviolability.
“The UN charter, the Headquarters Agreement and the 1946 convention contain provisions relating to the privileges and immunities of the organisation,” he said. “The UN relies on the adherence by member states to these various undertakings.”
He noted a clause in the 1946 convention which states: “The property and assets of the United Nations, wherever located and by whomsoever held, shall be immune from search, requisition, confiscation, expropriation and any other form of interference, whether by executive, administrative, judicial, or legislative action.”
Interestingly, the Headquarters Agreement was also adopted by joint resolution of congress, so it is binding law. The argument from the U.S. side, if any litigation ever ensued domestically, would have to be that the Agreement is non-self-executing because it calls for arbitration in the event of any disputes between the U.S. and U.N. But I would be curious to see if there was a legal memo somewhere justifying the legality of the Clinton directive here. And I would love to know how my old lawprof Harold Koh, now the State Department’s Legal Advisor, finessed this issue. Or perhaps it is better to avoid giving these actions the taint of legality?
The Wikileaks episode seems to be turning to the USG’s advantage, at least domestically: it’s provoking a lot of sympathy for the government as an entity. That’s a rare sentiment these days. Leave aside angry calls for Assange’s head (almost literally), people are actually feeling sorry for the USG.
One way that’s being expressed is to compare the government to private entities. Two posts at the New Yorker’s site take this tack. George Packer makes the sensible observation:
The other silver lining, from the government’s perspective: The State Department is getting a huge amount of free and generally positive publicity. Some of the cables were given a dramatic reading this evening on All Things Considered! See here, here, and here — still looks like fun, doesn’t it? I predict a record number of takers for the February 2011 Foreign Service exam (you can register here).
I suspect this will be a much bigger story than the previous Iraq and Afghanistan disclosures, mostly because there will be something here for everyone. I’m not sure that the State Department looks particularly bad, as Timothy Garten Ash explains. It shouldn’t be a revelation to anyone that diplomats sometimes do something that looks like spying. This is much more likely to cause scandals in foreign capitals than in the US (which is not to say that it won’t hurt US foreign policy interests — it will). What you will see are lots of examples of US diplomats executing their briefs, in most cases pretty well.
One possible casualty is the venerable tradition of the diplomatic cable. There is an art to this medium. The best cables have a narrative arc. It would be fun to compose a full typology (including the serious policy assessment, the color story, the ambassador’s farewell cable, memcons, codel reports, and “scenesetters“, among others) — on top of the 250,000 wikileaks cables, we have more than a century’s worth of the Foreign Relations of the United States to work with. US diplomats have always represented the bureaucratic elite (remember the handkerchief-up-the-sleeve stereotype), and some write elegantly. As a sort of private reporting service for the US government, however, it must be getting tougher to add value as the sources of information multiply along with modes of diplomatic communication. With the rise of email and other channels, I wonder if ambassadors and their staffs still consider cables the primary medium for staying in touch. (Even less so in the Department itself, where a cumbersome inter-office clearance process has to make cables the choice of last resort.)
But this episode will surely make cables look less attractive still. It’s one thing to understand that your work will come to light 25 years hence, when you (and your interlocutors) will either be dead or retired, too old much to care; or else flattered to see your handiwork become the stuff of history. It’s another to have to worry about something being disclosed that might affect your ability to function in your next post (or whether you’ll get one at all). The result will be less interesting stuff on paper for the record, more stuff over the phone or scattered in the diplomatic equivalent of tweets. Diplomatic historians will be thrilled with this unexpected Thanksgiving weekend gift, but they may have a lot less to work with in the future.