International Law & WikiLeaks

(Delighted to welcome back alumna Mary Ellen O’Connell (below right), who contributes this guest post on release of classified documents by WikiLeaks, an issue on which alumna Patricia M. Wald posted yesterday)

I generally share Judge Wald’s critical view of WikiLeaks’ action.
In thinking about the matter from the perspective of international law, so far I see three areas of special interest:

1. Prosecution
State Department Legal Adviser Harold Koh, Attorney General Eric Holder, Secretary of State Hillary Clinton, and others have all discussed prosecuting “those responsible” for the document dump. The main figure associated with WikiLeaks is the Australian, Julian Assange. He is thought to be in hiding somewhere in Europe. Interpol has issued an international arrest warrant for Assange, to send him to Sweden to face questioning. I have seen no reports of a U.S. request for an international arrest warrant. (credit for logo of Interpol Red Notice)
My first thoughts in this episode have concerned on what basis Assange could be brought to the U.S. for prosecution. If he comes into Swedish custody, for example, and the United States then requests his extradition, NPR is reporting that the basis of criminal prosecution would likely be the Espionage Act. (See, e.g., 18 U.S.C. sec. 798 “Disclosure of Classified Information”.)
The Espionage Act seems to be narrowly drafted and to contain details that might well make it difficult to meet the requirements of U.S. extradition treaties.

2. Terrorism
Perhaps for the issues raised in Point 1, U.S. Rep. Peter King (R-N.Y.) is calling for WikiLeaks to be declared a terrorist organization? I wonder if Rep. King believes that declaring WikiLeaks a terrorist organization means that the U.S. will treat Assange as an “enemy combatant?” International law has no authority to support such assertions. We can hope that the administration will definitive reject them, and even reconsider other cases where criminal suspects are currently being treated as “enemy combatants.” (See my soon-to-be forthcoming article, “The Choice of Law Against Terrorism.”)

3. Diplomacy
We can further hope that this case will wake up governments around the world to greater vigilance on behalf of international law.
We should all be very concerned that certain Middle Eastern governments want to see military force used against Iran. There is no right to use military force against a state for the possession of even unlawful weapons. (See my “The Ban on the Bomb and Bombing, Iran, the U.S., and the International Law of Self-Defense”.) This is only one example. The documents are full of issues we in international law should be bringing to public awareness.
Ironically, in some cases involving the United States and non-compliance with international law, I wonder if governments are going to read the unflattering documents and either end cooperation or pressure the United States into ending non-compliant conduct? I have written about U.S. uses of military force in Yemen that conflict with international law. Is Yemeni President Ali Abdullah Saleh going to continue to cooperate in this after what has been said about him?
And, of course, all of us in international law need to be concerned about the attempt to steal private information concerning the Secretary-General of the United Nations.
The gratuitous gossip in some of the communications is also striking — it made me think of the Rolling Stone interview with General Stanley McChrystal. (prior IntLawGrrls post)
The WikiLeaks decision to release this material was reprehensible. Hopefully the right lessons will be learned from it with respect to the conduct of diplomacy and the goals of U.S. foreign policy.

Wald on WikiLeaks

(Honored to welcome back alumna Patricia M. Wald, former federal and international judge, and former member of Presidential commission on U.S. intelligence, who contributes her thoughts on the unauthorized WikiLeaks release of U.S. diplomatic cables and military documents, some of which have been published in The New York Times, the Guardian, Le Monde, El Pais, and other media)

I think that freelancers do have some duty not to do things that will inevitably result in making any rational course of foreign relations more difficult.
Though it may be difficult to draw a precise line, I do see a difference between publishing the Pentagon Papers (after the fact), which disclosed the perfidy of the Vietnam War, and just dumping all sorts of personal calumny about foreign leaders – though part of these “dumps” may well have been motivated, like the Pentagon Papers, to show the futility of our sojourn in Afghanistan. (It seems almost impossible that the dumps aren’t violative of all sorts of laws.)
The episode also illustrates how our courtship with technology can be ruinous, by making it so easy to gain access to and disseminate so much classified material through young and immature intelligence operators.

Incoming Foreign Relations chair

The arrival in January of the 112th Congress is slated to bring the 1st woman chair of the Foreign Relations Committee of either house of Congress.*
Moving from ranking minority member to chair will be U.S. Rep. Ileana Ros-Lehtinen (left).
In the United States since age 7, when her family fled her birthplace, Cuba, Ros-Lehtinen has served in Congress since 1989. As described by the Associated Press, her South Florida district "includes parts of Miami's Little Havana and the tourist-dependent and gay friendly Miami Beach and Florida Keys." That combination makes for the occasional unexpected position -- unlike many Republicans, she voted to repeal "Don't Ask Don't Tell."
On many other issues, however, Ros-Lehtinen is likely to be a thorn in the side of policies favored by the administration of President Barack Obama. Examples of expected points of contention:
► She'll "resist any White House attempts to pressure Israeli Prime Minister Benjamin Netanyahu."
► She "may try to chip away at the president's executive order" -- about which we've posted -- "allowing foreign aid for international groups that provide information about abortion services."
► She'd "like U.S. contributions to the U.N. to be voluntary until the U.S. creates an office to audit U.N. activities for transparency and eliminate waste." She's particularly critical of the U.N. Human Rights Council, whose members include countries like China, Saudia Arabia -- and the country with which she's expected to oppose any U.S. dialogue, Cuba. _____________________________

* A far cry from the "leadership" posts women tended to hold not so long ago -- more than 1 Congresswoman was chair of the House Beauty Shop Committee.

"Popular" 'Grrls

No less an authority than Foreign Policy magazine yesterday described us thusly:

the popular legal blog IntLawGrrls

And we're pink, too.

On March 9

On this day in ...
... 1957, signed into U.S. law was "the Eisenhower Doctrine." President Dwight D. Eisenhower (left) proclaimed, in signing a congressional resolution embodying the doctrine he'd announced 3 months earlier, that the law constituted

'a further demonstration of the will of the American people to preserve peace and freedom in the world.'

Specifically, as reported by The New York Times, the resolution "establish[ed] a policy of United States resistance to Communist aggression in that strategic oil-rich area" of the world known as the Middle East. According to the State Department's website, the 1st "real test" of the doctrine came a year later when, on request of the Lebanese government, Eisenhower sent U.S. troops to Lebanon "as a signal to the Soviet Union that it would act to protect its interests in the Middle East."

(Prior March 9 posts are here, here, and here)

Making a connection

Added to our "connections" blogroll at right: a link to the must-read foreign policy blog by longtime D.C. reporter Laura Rozen (right) -- title, of course, "Laura Rozen On Foreign Policy" -- which she's just moved to Politico. (Her online bio appears not yet to have made the shift.) (photo credit)

Check it out.

Guest Blogger: Jennifer Lind

It's IntLawGrrls' great pleasure to welcome Dr. Jennifer Lind (left) as today's guest blogger.
Jennifer's an Assistant Professor in the Department of Government at Dartmouth College in Hanover, New Hampshire, where she teaches International Politics, East Asian Security: Theory and Practice, and The Politics of Memory. The courses correspond to her research interests, which include East Asian international security, Japanese security policy, U.S. foreign and military policy, and historical memory in international relations.
Among her publications is Sorry States: Apologies in International Politics (2008), which she discusses in her guest post below.
Jennifer's worked as a consultant for RAND and for the Office of the Secretary of the U.S. Department of Defense, and also has lived and worked in Japan. She received a Ph.D. in Political Science from the Massachusetts Institute of Technology, a Master’s in Pacific International Affairs from the University of California, San Diego, and a B.A. from the University of California, Berkeley.
Heartfelt welcome!

Not an evangelical internationalist

After years of talking about “conservative evangelical Christians” and Bush’s “evangelical base” as if evangelical Christians were a monolithic bloc of far right-wing conservatives, in the last couple of years, journalists have begun reporting on the more socially progressive wing of the movement, like “emerging churches” and mega-church leader Rick Warren’s global anti-poverty initiatives. In this vein, Nicholas Kristoff’s column yesterday argued that Mike Huckabee should not be “derided for his faith” because many evangelicals are “powerful internationalists and humanitarians.” True enough (on both counts), but is Huckabee one of these foreign policy “bleeding-heart conservatives,” as Kristoff calls them?
Huckabee’s essay in Foreign Affairs this month does distance his philosophy from the Bush administration’s “arrogant bunker mentality,” but his purportedly more multilateral approach similarly demands that other nations get on board our train. For example, China, Russia, and others must “put more economic pressure on Iran”; otherwise, “if the United States does end up taking military action, they will bear some responsibility for having failed to maximize peaceful options.” Huckabee writes almost exclusively about Islam, terrorism, and the Middle East, promoting an aggressive combination of sanctions, diplomacy, and military action in the region. Other nations and regions seem to exist only as supporters of or obstacles to a reinvigorated war on terror centered on Iraq, Iran, and Pakistan. Huckabee nods to “the underlying conditions that breed [terrorists]: the lack of basic sanitation, health care, education, a free press, fair courts” and indicates that the U.S. should take steps to address those conditions – just as soon as it “first destroy[s] existing terrorist groups.” Trade, treaties, environmental concerns, even basic relations with the rest of the world not only aren't on top of Huckabee’s agenda, they don’t make his agenda at all. Certainly, there are evangelical internationalists and humanitarians out there, but Huckabee does not seem to be one of them.

For the Undecided Voter

If you, like me, have not yet decided which candidate to support in the primaries and care deeply about their foreign policy positions, you may be interested in the series of articles that Foreign Affairs has been running since the summer. In each issue, a Democratic and a Republican candidate present their foreign policy platforms. It makes for interesting reading.
The two candidates on my short list, Obama and Clinton, took many of the same positions – multilateralism, participation in international institutions, engagement with China and Russia, military withdrawal from Iraq – but with rather different tones. While Obama emphasizes partnership over patronage as our mode of interaction with other states and seeks to pursue “the security and well-being of those who live beyond our borders” as the best means of ensuring American security and well-being, Clinton talks about “build[ing] the world we want,” and contrasts ideological decision-making with fact-driven analysis as our mode of determining our course of action. Obama calls upon the images of Roosevelt, Truman, and Kennedy as visions of inspired, world-changing leadership, while Clinton calls emphatically for “more than vision” in outlining her policy prescriptions.
Of course, there’s more: check out Huckabee, McCain, Giuliani, Edwards, and Romney for the full array of would-be presidential views thus far.

Domestic environment and foreign policy

Check out Cymie R. Payne's ASIL Insight respecting the Massachusetts v. EPA decision on which we've posted here and here. Her focus is not the Supreme Court's administrative-law-based ruling that the Environmental Protection Agency must revisit its refusal to regulate greenhouse gases. Rather, she examines another legal theory, which the EPA invoked in vain in Massachusetts: "that somehow a regulatory action by an executive agency under a federal statute, with no direct link to security or international trade, might inhibit the President's prerogative to direct foreign policy." Given that like arguments have been made in other, pending litigation, Payne concludes that the roles of the branches of federal government, and of agencies of constituent states, are likely to evolve.