Information Security & Fear-Mongering about WikiLeaks

(My thanks to IntLawGrrls for the opportunity to contribute this guest post)

The response of the White House's Office of Management and Budget to the latest WikiLeaks document dump gives us a peek both into the sometimes surreal standards for dealing with information that the executive branch deems to be classified, and at the fear-mongering some government officials are engaging in.
According to CNN, on December 3rd, OMB instructed executive branch agencies to notify all government employees and contractors that they should not view any documents that are marked as classified using their work computers that access the web via non-classified government systems.
OMB distinguished “documents that are marked classified” from “news reports . . . that . . . discuss the classified material.” Employees can use non-classified government systems to access news reports that include classified information, but must not use those systems to access the classified documents themselves. This distinction might seem silly to an outsider, but the government imposes special security measures for its computers that store classified documents, and takes pains to ensure that its computers without these security measures do not have any classified documents. This system of segregating classified documents is complicated and costly. But so far, so good.
OMB also suggested (somewhat ambiguously) that federal employees and contractors without the proper clearances and the "need to know" the information should not access Wikileaks' classified information. Specifically, OMB stated:

'Federal employees and contractors shall not access classified material unless a favorable determination of the person's eligibility for access has been made by an agency head or the agency head's designee, the person has signed and approved [a] non-disclosure agreement, [and] the person has a need to know the information . . . .'

(Here and in quotes below, italics added.)
At least one agency has gone further, asserting that government employees -- and prospective employees -- should not access WikiLeaks classified documents even from their home computers.
According to Democracy Now, the State Department instructed employees of the U.S. Agency for International Development as follows:

'Accessing the Wikileaks web site from any computer may be viewed as a violation of the SF-312 agreement.'

According to the SF 312 (a non-disclosure agreement), violation can result in termination of a security clearance and employment.
The State Department memo also warned USAID employees:

'Any discussions concerning the legitimacy of any documents or whether or not they are classified must be conducted within controlled access areas (overseas) or within restricted areas (USAID/Washington)... The documents should not be viewed, downloaded, or stored on your USAID unclassified network computer or home computer; they should not be printed or retransmitted in any fashion.'

In other words, just accessing the WikiLeaks website from a home computer could result in the loss of a security clearance and job.
Steven Aftergood, Director of the Federation of American Scientists Project on Government Secrecy -- a transparency activist who has been critical of WikiLeaks -- characterized the State Department memo as "insane."
It is not at all clear how accessing the WikiLeaks documents on a personal home computer would constitute a violation of an agreement not to disclose classified information. On the other hand, the SF 312 asserts that

'unauthorized retention . . . of classified information by me could cause damage or irreparable injury to the United States or could be used to advantage by a foreign nation.'

This does not appear to be a one-off mistake by an overzealous State Department official. At least one government contractor has similarly warned its employees:

'Reviewing information on WikiLeaks or subsequent disclosures is strictly prohibited. ... [P]ersonnel are prohibited from accessing WikiLeaks whether on company-issued or on personal equipment.'

The fear-mongering applies not just to contractors but also to prospective government employees.
Democracy Now reported that the Office of Career Services at Columbia University's School of International and Public Affairs told its students that an alumnus working at the State Department

'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.'

Maura Kelly, Assistant Dean for Career Development and Public Service at Boston University Law School, sent a message to BU students and alumni that

'[t]he documents released by Wikileaks remain classified; thus, reading them, passing them on, commenting on them may be seen as a violation of Executive Order 13526, Classified National Security Information. See Section 5.5 (Sanctions).'

She specifically warned:

'DO NOT post links to the documents or make comments on any social media sites.'

Are these just over-reactions by people who are not familiar with the government's information security standards?
Or do these warnings reflect a concerted effort to prevent Americans from accessing and discussing the WikiLeaks documents that are now available on the web?
I hope that someone in government will provide some clarification -- and some sanity -- on this issue soon.

'Nuff said

(Taking context-optional note of thought-provoking quotes)

Diplomacy has long been the backbone of U.S. foreign policy. It remains so today. The vast majority of my work at the State Department consists of engaging in diplomacy to address major global and regional challenges, such as confronting Iran's nuclear ambitions, facilitating negotatiations between the Israelis and the Palestinians, enhancing stability on the Korean Peninsula, and working with other governments to bring emergency relief to Haiti, And President Barack Obama and I certainly relied on old-fashioned diplomatic elbow grease to hammer out a last-minute accord at the Copenhagen conference on climate change last December.

-- U.S. Secretary of State Hillary Clinton, in "Leading Through Civilian Power: Redefining American Diplomacy and Development." (credit for October 2010 photo) Clinton develops her wide-ranging exposition of the global work at State and myriad other agencies around the theme of her own initiative, "the first Quadrennial Diplomacy and Development Review (QDDR), a wholesale review of the State Department and USAID." The article appears in the November/December 2010 Foreign Affairs, a "special issue" on the topic of "The World Ahead." Some of the other articles are of interest, but the lineup as a whole discomfits: if it weren't for Secretaries of State (Clinton and her predecessor, Madeleine Albright), there'd be virtually no women authors in the entire issue. We, too, think deeply about the world to come.

On May 28

On this day in ...
... 2010 (today), is marked the International Day of Action for Women’s Health. According to the Women's Global Network for Reproductive Rights, an NGO with offices in the Philippines and the Netherlands, the date was set during a network reunion in 1987. It was officially recognized by South Africa's government 11 years later. According to the U.S. Agency for International Development, the date's an occasion for "the world to look at women’s unique health needs in a new way." Issues to which both sites point, albeit with markedly different emphases, will be familiar to readers: contraception, maternity, gender issues, fistula prevention, sexually transmitted diseases, abortion and post-abortion care.

(Prior May 28 posts are here, here, and here.)

Change & United States' global health policy

Nothing more than too-much-to-do accounts for our not yet mentioning changes to the United States' foreign policy on family planning this past week.
Included in a a flurry of executive action, about which we've posted here and here and here, was President Barack Obama's restoration of U.S. funding for global organizations whose health-care activities include counseling about, advocacy for, or performance of abortions. U.S. Agency for International Development funds had been halted as soon as George W. Bush assumed the Presidency in 2001 -- having previously been reinstated by new President Bill Clinton in 1993, after having 1st been cut off by President Ronald Reagan in 1984.
Reactions?
As might be expected, anti-abortion groups are not happy; contrarily, as the Washington Post reported:

Obama's decision was praised by family planning groups, women's health advocates and others for allowing the U.S. Agency for International Development to once again provide millions of dollars to programs offering medical services, birth control, HIV prevention and other care.

Also undone, the so-called "global gag rule." We print Obama's rescission order, styled as a memo to new Secretary of State Hillary Clinton, in full:

MEMORANDUM FOR THE SECRETARY OF STATE
THE ADMINISTRATOR OF THE UNITED STATES AGENCY FOR INTERNATIONAL DEVELOPMENT
SUBJECT: Mexico City Policy and Assistance for Voluntary Population Planning
The Foreign Assistance Act of 1961 (22 U.S.C. 2151b(f)(1)), prohibits nongovernmental organizations (NGOs) that receive Federal funds from using those funds "to pay for the performance of abortions as a method of family planning, or to motivate or coerce any person to practice abortions." The August 1984 announcement by President Reagan of what has become known as the "Mexico City Policy" directed the United States Agency for International Development (USAID) to expand this limitation and withhold USAID funds from NGOs that use non-USAID funds to engage in a wide range of activities, including providing advice, counseling, or information regarding abortion, or lobbying a foreign government to legalize or make abortion available. The Mexico City Policy was in effect from 1985 until 1993, when it was rescinded by President Clinton. President George W. Bush reinstated the policy in 2001, implementing it through conditions in USAID grant awards, and subsequently extended the policy to "voluntary population planning" assistance provided by the Department of State.
These excessively broad conditions on grants and assistance awards are unwarranted. Moreover, they have undermined efforts to promote safe and effective voluntary family planning programs in foreign nations. Accordingly, I hereby revoke the Presidential memorandum of January 22, 2001, for the Administrator of USAID (Restoration of the Mexico City Policy), the Presidential memorandum of March 28, 2001, for the Administrator of USAID (Restoration of the Mexico City Policy), and the Presidential memorandum of August 29, 2003, for the Secretary of State (Assistance for Voluntary Population Planning). In addition, I direct the Secretary of State and the Administrator of USAID to take the following actions with respect to conditions in voluntary population planning assistance and USAID grants that were imposed pursuant to either the 2001 or 2003 memoranda and that are not required by the Foreign Assistance Act or any other law: (1) immediately waive such conditions in any current grants, and (2) notify current grantees, as soon as possible, that these conditions have been waived. I further direct that the Department of State and USAID immediately cease imposing these conditions in any future grants.
This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
The Secretary of State is authorized and directed to publish this memorandum in the Federal Register.
BARACK OBAMA
THE WHITE HOUSE, January 23, 2009.

Framework for peace and justice

First, I’d like to thank IntLawGrrls for inviting me to be a guest blogger. I appreciate the opportunity to contribute to the blog’s discussion of current issues in international law.

A while back, an IntLawGrrls' 'Nuff said post illustrated how the issue of peace versus justice is in the news again. My own recent scholarship has focused on how the International Criminal Court can balance the demands of peace and justice in, for example, its case in Northern Uganda. The ICC Prosecutor issued arrest warrants against Joseph Kony and other leaders of the Lord’s Resistance Army (LRA) despite fears that such a step would impede ongoing peace negotiations. More recently, the Prosecutor sparked debate with his announcement that he is seeking an arrest warrant for genocide, crimes against humanity, and war crimes against Sudanese President Omar Hassan Ahmad al-Bashir. Critics contend that the Prosecutor’s move will endanger prospects for peace in Darfur. Others, such as Justice Richard Goldstone, former chief prosecutor for the International Criminal Tribunals for the former Yugoslavia and Rwanda, take the position that the prosecutor’s job is to prosecute, leaving political questions to others.

Under the ICC statute, there are several ways that the peace versus justice issue can be raised. I’ve examined these issues in my article, Achieving Peace with Justice: The International Criminal Court and Ugandan Alternative Justice Mechanisms, 23 Conn. J. Int’l L. 209 (2008), and in a shorter, more general essay, The False Dichotomy of Peace versus Justice and the International Criminal Court, just published in the Hague Justice Journal (in English, with French translation). I offer a framework for balancing peace with justice based on the theoretical underpinnings of the ICC. In my article, I have two objectives:

► First, to offer a solution to a pressing problem at the ICC: how the ICC should respond to calls to drop the arrest warrants in favor of Ugandan alternative justice mechanisms.

► Second, to propose a theoretical framework to apply to the inevitable reoccurrence of the peace versus justice dilemma at the ICC, such as the situation in Darfur and the most recent site of inquiry, Colombia.

With regard to the Ugandan situation, the ICC Prosecutor has characterized the demands of the LRA for immunity from ICC prosecution as blackmail and extortion. The LRA is notorious for atrocities including mutilating and killing civilians, often at the hands of children it has forcibly abducted into its forces. The ICC was created to end impunity for international crimes. But can it insist that states reject trading peace for justice when the cost of refusal is measured in human lives?

While many speak in terms of peace versus justice, it is possible to achieve both peace and justice. The ICC’s institutional mandate is to prosecute or to facilitate prosecution at the national level. The Rome Statute is sufficiently ambiguous to allow the ICC to defer to nonprosecutorial alternatives in extreme circumstances. For example, the ICC might be faced with a request to suspend the case from the U.N. Security Council pursuant to Article 16 of the ICC Statute. The ICC might consider whether an alternative process such as a truth commission blocks the case under the principle of complementarity (Article 17) or under ne bis in idem (Article 20). Finally, the Prosecutor, with the acquiescence of the Court, might decide not to investigate or prosecute as a matter of discretion, in the “interests of justice” (Article 53).

In interpreting these provisions, the ICC should not only consider statutory interpretation, but also assess the proposed alternative:

► It should first evaluate whether nonprosecutorial alternatives are necessary and legitimate.

► If they are, the ICC then should examine the goals of international criminal justice.

Where the alternative mechanism furthers retribution, deterrence, expressivism, and/or restorative justice to an extent similar to that provided by international prosecution, the ICC should defer. In this way, the ICC might ensure that there is at least some measure of accountability for international criminals without blocking peace initiatives vital to ending mass killings and other atrocities.

This framework offers only a starting point for solving the very complicated problem of balancing peace with justice. In Uganda, for example, the peace plan offers a confusing mix of alternatives to ICC prosecution, making reference to both traditional justice mechanisms and domestic prosecution. The Uganda situation is still fluid, with some negotiators attempting to keep the peace process alive despite Kony’s failure to sign the peace deal, while others argue for a military solution. (credit for USAID photos of some of Uganda's internally displaced children)

The ICC can, of course, be only part of the solution to complex conflicts, in Africa and elsewhere.

Virginia Leary honored with Goler T. Butcher Medal for contributions to human rights

Virginia Leary (left) is evidence of the truth in the adage that one person can make a difference. As the American Society of International Law recently noted, she has done “path-breaking work as a lawyer, scholar, teacher and activist in international law and human rights, particularly in the areas of international labor law and workers’ rights.” Countless numbers of us have been profoundly inspired by her.
This week at its annual meeting in Washington, D.C., the American Society of International Law is honoring Virginia Leary with the Goler T. Butcher Medal for her outstanding contribution to human rights. It seems so fitting that she receive the medal pictured below right and named for my IntLawGrrls transnational foremother, Goler Teal Butcher. That's because both Virginia and Goler worked on economic and social rights as human rights long before many other rights activists in the U.S. did. And both have been leaders globally and mentors locally.

About Virginia Leary

Lawyer and professor. A former Vice-President of the American Society of International Law, Virginia Leary earned her J.D. degree from the University of Chicago, a doctoral degree from the Graduate Institute of International Studies in Geneva, and the diploma of the Hague Academy of International Law.

After working for an international women’s organization in Geneva, the Intercultural Cooperation Association, she worked for the International Labour Organization until joining the faculty of the State University of Buffalo and then the University of California-Hastings. Now that she is retired from full-time teaching and living in Geneva, she serves on the Advisory Board of the Program for the Study of International Organizations at the University of Geneva’s Graduate Institute of International Studies, where she recently directed a project on the social aspects of trade liberalization.

Lawyer-Activist. Virginia Leary was a founding member of the Geneva-based International Council for Human Rights Policy, whose studies and reports I consider among the most useful work produced by a human rights organization. She has undertaken human rights missions on behalf of Amnesty International, the International Commission of Jurists, and Human Rights Watch, and has been a consultant to the World Health Organization and the Office of the UN High Commissioner for Human Rights. She serves on the Boards of several organizations, including the Centre on Housing and Evictions (COHRE), Human Rights Advocates, and the International Labor Rights Forum, and previously served on the Board of Human Rights Watch Asia.

Scholar. A prolific scholar, she has written books, book chapters and articles on international labor law, workers’ rights, the right to health, child labor issues, and international trade and human rights. She recently co-edited the book Social Issues, Globalization and International Institution: Labour Rights and the EU, ILO, OECD and WTO.

Mentor and role model. Virginia Leary’s contribution to human rights also includes mentoring countless women and men in international human rights the world over, a role she has undertaken with care and energy reminiscent of Goler Teal Butcher.

About Goler Teal Butcher

When I first met Goler Butcher back in the mid-1980s, she was a member of the Board of Directors of Amnesty International-USA (AIUSA) as well as Professor of Law at Howard University School of Law. I had the good fortune to work with Goler over the years on international legal issues as well as AI policy issues. It was when we roomed together for a week in Yokohama at Amnesty’s biennial policy-making meeting in 1991 that she shared some stories of her experiences as an African-American woman in the very white male world of international law in the early 1960s. I also learned from watching her in action at the Yokohama meeting, engaging with Amnesty delegates from around the world.

Goler Teal Butcher graduated in 1957 from the Howard University School of Law – where she was Editor-in-Chief of the Howard University Law Review. She was the only woman in her class. She earned her LL.M. from the University of Pennsylvania Law School the following year. She clerked for the first African American judge on a federal appeals court, the renowned William Henry Hastie.

After working for a law firm, she joined Office of the Legal Advisor at the Department of State in 1963, the first African-American lawyer to serve in that office. She then served as counsel to the House Foreign Affairs Subcommittee on Africa, where she earned a reputation for strong leadership. (In the photo at right, she's with U.S. Rep. Charles Diggs (D-Mich.); she was his 1st staff counsel for Africa when he resigned "from the U.S. delegation to the United Nations in 1971 to protest Nixon administration support for South Africa and Portuguese colonialism.") Under President Carter, Butcher served as U.S. Agency for International Development (AID) director for Africa, and some years later, she headed the Clinton-Gore transition team for the agency.

Goler also devoted much care to her students and to her colleagues in the NGO community. She herself created the Goler Teal Butcher Award to attract students to the study of international law at Howard University. Today, the university honors her through its Goler Teal Butcher
International Moot Court Team, which this past year won the award for Best Complainant Submission in the Fourth Annual WTO Competition in Geneva.

She also touched us through her publications, which addressed U.S. foreign policy, apartheid, the relationship of law to the problem of hunger, discrimination in employment faced by women and by African-Americans, and issues of the United States and International Court of Justice advisory opinions, among other topics.

When she died in 1993, her successor to her position at USAID wrote:

Africa has lost a great champion. Washington has lost a giant.

Cape Verde is Set to Join the WTO!

A few years ago, I was hired as legal advisor on a USAID project to assist Cape Verde in joining the World Trade Organization (I write of that experience here). On December 18, 2007, the WTO General Council approved an accession agreement for Cape Verde, thus paving the way for this small island nation to become the 152nd member of the WTO. I want to use my first post to congratulate Cape Verde on a job well done, and to share with you why this accession is important.
You are probably wondering “where the heck is Cape Verde?” Well, I’ll tell you. Cape Verde is an archipelago of nine inhabited islands off the coast of Senegal in West Africa. It is located on the western extension of the Sahara Desert, which, as you can imagine, means that it is dry and somewhat barren. The islands were created through volcanic eruptions, and most of them are rocky and mountainous. Economically, Cape Verde was long recognized as a Least Developed Country (LDC). Best known for the soulful music of The “Barefoot Diva” Cesaria Evora, the Island nation lacks the resource base to become an industrial power. Commercial agriculture is not viable; the size of Rhode Island, nearly fifty-four percent of Cape Verde’s land is non-cultivatable. The Island lacks a continental platform, thus precluding a large scale fisheries industry. So, what’s a small island nation like Cape Verde doing joining the World Trade Organization? And why would WTO Director General Pascal Lamy welcome its accession as a “sign of confidence in the organization and the multilateral trading system”?
For Cape Verde, WTO accession represents a significant milestone. When the Portuguese sailed away from the island in 1975, after 500 years of colonial rule, the place was in shambles: In the whole country, not a single secondary school could be found, and the only roads in existence were ones that served a strategic commercial purpose. Faced with massive illiteracy, little infrastructure, and few natural resources for development, the new government turned to a Soviet-style command economy. When that failed, Cape Verde adopted a “Big Bang” theory of development—going from a command economy to the free market almost overnight. Despite difficult times, Cape Verde is seeing some progress. The government adopted a liberal foreign investment law, and by 2002, Foreign Direct Investment had risen from $2 million to over $27 million. The country also created an export market, focusing on textiles, footwear, and some fish and fish products. And Cape Verde now qualifies for benefits under the African Growth and Opportunity Act, a U.S. initiative providing enhanced market access, particularly in textiles, to eligible sub-Saharan African countries. By June 2007, Cape Verde’s efforts were sufficiently successful that it became only the second country in history to graduate from the United Nations’ LDC list (the first was Botswana in 1994).
WTO membership is well-deserved recognition of the country’s efforts. It also gives Cape Verde a voice in the organization responsible for managing over 97 % of world trade. It will undoubtedly use that voice to advocate for change in WTO policies on labor. Like most developing countries, if Cape Verde has an export advantage at all it may well be in its populace. The Island’s literacy rate has risen to an astonishing 77 %, and the country has a long tradition of exporting labor to increasingly better paying jobs in the developed world (Cape Verdeans have been immigrating to the United States since the 1800s when New England whaling ships would sail in to port and take on new recruits). The country is highly dependent on expatriate remittances to cover its massive trade deficit, and the government would like to facilitate easier access to developed country labor markets. But free movement of labor is not covered in the WTO Agreements. It is high time that the issue at least be put on the table for discussion.
The WTO itself stands to gain much from Cape Verde’s accession. It will serve as a model for other LDCs seeking to join the organization, and it adds great credibility to the WTO’s claim of being a representative organization. As Pascal Lamy states, Cape Verde’s accession “add[s] another valuable member to the family and brings us another step closer to universal membership.” Cape Verde will need to adopt domestic legislation and finalize membership by June 30, 2008. (photo credit)