Guest Blogger: Kathleen Clark

It's IntLawGrrls' great pleasure to welcome Kathleen Clark (left) as today's guest blogger.
Kathleen is Professor of Law and 2010-11 Israel Treiman Faculty Fellow at Washington University School of Law, St. Louis, Missouri, where teaches and writes about government ethics, national security law, legal ethics, and whistleblowing. For more than a decade, she has offered a course she created, on governmental ethics; in addition, she created a course on comparative whistleblowing, which she taught at the Summer Institute for Global Justice, Utrecht University, the Netherlands.
A 2004 Washington Post op-ed on the Department of Justice "torture memo," coauthored with our colleague Julie Mertus, led to Kathleen's testimony before Congress and her publication of "Ethical Issues Raised by the OLC Torture Memorandum," 1 Journal of National Security Law & Policy 455 (2005).
In her guest post below, Kathleen makes the case for the need for "someone in government will provide some clarification -- and some sanity" on the issue of WikiLeaks disclosures, an issue on which IntLawGrrls featured 2 guest posts last week, by Judge Patricia M. Wald (here) and by Professor Mary Ellen O’Connell (here).
Kathleen earned her B.A. and J.D. degrees from Yale University, and clerked for the Honorable Judge Harold H. Greene, U.S. District Court for the District of Columbia. She then served as counsel to the U.S. Senate Judiciary Committee, working on issues of white collar crime.
A member of the American Law Institute, Kathleen's an advisor to the institute’s Project on Principles of Government Ethics. She's also a consultant to the Administrative Conference of the United States and past Chair of the National Security Law Section of the Association of American Law Schools.

Heartfelt welcome!

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.

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.

The WTO wants YOU!

WTO-detractors have long accused the organization of being a "secret society" where deals are struck in dark, smoke-filled rooms far away from the public eye. Admittedly, the organization has not been very effective in addressing the complaint--at least not in the early years of its existence when a typical response would be that the World Trade Organization is a "government to government" institution. Translated from the bureaucratic-speak, it essentially meant there was no room for public participation. Civil society and the average citizen were expected to liaise with their home institutions rather than with the WTO. But times have changed.
After years of public protests, along with scholarly reflections on the institution's lack of legitimacy precisely because it operated in the shadows, the WTO had a public relations makeover of sorts. The membership changed the rules to allow for public access to some meetings--including dispute settlement meetings--for example, and the WTO began to hold an annual civil society conference meant to serve as a forum for public participation. This year, the organization has taken things one step further and sponsored a contest seeking . . . YOU! That's right, the WTO "invites you to participate in a video contest to tell us your views about the key forces shaping world trade."
So if you ever wondered just how you might give the institution a piece of your mind on their policies and practices, here is your chance. All you have to do is upload a YouTube video and send a link to mailto:%20publicforum2010@wto.org and you could be on your way (don't forget to check out the terms and conditions). I wonder if they'll have the world call in to choose the next WTO-Idol?

Go On! "Scenes of Secrecy"

(Go On! is an occasional item on symposia of interest.) On Friday and Saturday, Duke University's Department of Cultural Anthropology and Human Rights Center hosted a conference entitled "Scenes of Secrecy: Interdisciplinary Inquiries on Suspicion, Intelligence and Security." With panelists from departments ranging from Asian and Middle Eastern Studies to Literature to Cultural Anthropology and paper titles such as "Recuperating 'America': Homosexuality, National Fantasy, and 'the War on Terror'" and "Minerva and the Militarization of Anthropological Space", the program promised to present unique perspectives on issues of interest to our readers:

At this moment of polarizing conflict on the complex frontiers of global war, security defines and mobilizes the defense of state sovereignty against multifarious domestic and transnational insurgencies. This conference takes part in the growing public scrutiny of covert methods employed by states and other bodies to gather intelligence — from surveillance and censorship, to detention and torture, to simulation and preemption — that often prioritize security over human rights and even human life. Of special concern are the ways in which individuals and groups become objects of suspicion; how their privacy, integrity, and safety are protected or violated; and how suspicion and vigilance ramify in popular and political culture. Across regional and historical contexts, the conference traces connections between geo-political terrains of invisible governance, and experiences of terror and suspicion that fuel political secrecy as well as the pursuit of transparency.

I was sorry not to be able to attend in person, but grateful to conference organizer Prof. Elizabeth Anne Davis for presenting a talk I'd drafted based on my recent article, "A Global Approach to Secret Evidence: How Human Rights Law Can Reform Our Immigration System" (posted about here).

Secrecy, rights & our immigration system

A draft of my article, A Global Approach to Secret Evidence: How Human Rights Law Can Reform Our Immigration System, forthcoming in the Columbia Human Rights Law Review, has just been posted on SSRN, the Social Science Research Network.
A preview:
This article addresses two of the most pressing issues facing our society today -- rights violations in anti-terrorism efforts and dysfunction in the immigration system -- through a case study of the use of secret evidence in immigration proceedings. Cataloguing the government's repeated presentation of unreliable and inaccurate information in support of its efforts to deport suspected terrorists, the paper outlines the individual, societal, and global harms resulting from this misuse of secret evidence. It then discusses relevant human rights law, which offers a particularly appropriate mechanism to address these harms through its careful balancing of national security interests and due process rights.
The article advocates the use of human rights law as a guidebook and a yardstick to reform the administrative immigration process through statutory interpretation, regulation drafting, and institutional culture creation.

Secrecy, rights, and capital punishment

This morning the Supreme Court took on the 1st of 2 cases this Term that pose broad-based challenges to capital punishment in the United States.
Argument was heard in Baze v. Rees. As is evident in the audio tape and transcript, it calls upon the Justices to determine whether the procedure, or "protocol," that the state of Kentucky uses to execute by means of lethal injection violates the 8th Amendment ban on cruel and unusual punishments. (In the just-granted 2d case, Kennedy v. Louisiana, to be heard in April, the Court will consider whether the 8th Amendment forbids execution for rape of a child that does not result in the child's death.)
As the Los Angeles Times' Henry Weinstein reports, judges have ruled lethal injection protocols unconstitutional in California, Missouri and Tennessee. Weinstein's article focuses on the treatment of the execution procedures as state secrets; it quotes from this passage by our colleague Alison J. Nathan (right):

'What we know about how states and the federal government currently execute people in the United States is deeply troubling. But the real danger of lethal injection as currently practiced lies in what we do not know.'

Executions are news in China, too. The 1,051 executions in that country in 2006 constituted 2/3 of all capital punishments that year. "Yet because of state secrecy some activists believe that the number of executions could be as high as 10,000 to 15,000 a year" in China, according to another Los Angeles Times report. That's been a criminal punishment constant in China; what's news is this: China's believed to have "scaled back the pace of executions" in the runup to this summer's Beijing Olympics. The Times' John M. Glionna writes:

The reforms, advocated by a growing lobby of Chinese lawyers and scholars, are part of a policy that officials call 'kill fewer, kill carefully.' It calls for improved trial and review processes, and requires that all death penalty appeals be heard in open court.

If true, it's further evidence of the odd and incremental, though not unwelcome, event we noted earlier: a linkage between the Olympics and human rights.

Globally Disappeared

Questions've been raised about the accuracy vel non of the term "Global War on Terror" almost since its inception. Is it correct, many ask, to label the campaign a "war"? Can one fight "terror"? Or ought the campaign target, rather, acts of terrorism? Though less has been said about the 1st word, 2 recent reports on persons who've been ghosted into secret detention counsel more consideration of the campaign's "global" nature.
Six NGOS -- Amnesty International, Cageprisoners, the Center for Constitutional Rights, the Center for Human Rights and Global Justice at New York University School of Law, Human Rights Watch, and Reprieve -- focus "Off the Record" on U.S. conduct. The report names more than 3 dozen persons -- including 1 woman and her 3 children, aged 6 months to 7 years -- whom they believe have been detained in secret. "'Enforced disappearances are illegal, regardless of who carries them out,'" said NYU's Meg Satterthwaite on release of the report, which points to violations of the International Covenant on Civil and Political Rights and of the Convention Against Torture, to which the United States is party, as well as the International Convention for the Protection of All Persons from Enforced Disappearance opened for signature in February.
As remarkable as the role of the United States in in this account is the involvement of intelligence agencies from other states. Nearly 2/3 of the seizures cited occurred in Pakistan, where the issue of disappearance has sparked unrest. Other countries of capture: Somalia, Afghanistan, United Arab Emirates, Iran, Sudan, and Georgia.
That last country, of course, is in Europe -- and a report to the Parliamentary Assembly of the Council of Europe indicates that Georgia was by no means the only European state involved in secret detention. Rapporteur Dick Marty named Poland and Romania as the location of CIA "black sites" for detainees believed to have high intelligence value. Neither country acted alone, in Marty's opinion; to the contrary, he concluded that they and other states aided the U.S. effort within the framework of a North Atlantic Treaty Organization "platform" agreement reached just weeks after the 9/11 attack (¶¶ 72-111). Marty attributed his ability to ferret out facts that states want to keep secret to the "dynamics of truth" -- often, a sense among Europeans that since President George W. Bush conceded the existence of the program he said he'd keep secret, they might as well tell the story, under promise of anonymity, from their perspective. He called for further inquiry, greater accountability, and a return to the rule of law:

We are fully aware of the seriousness of the terrorist threat and the danger it poses to our societies. ... The fight against terrorism must not serve as an excuse for systematic recourse to illegal acts, massive violation of fundamental human rights and contempt for the rule of law. ... [H]aving recourse to abuse and illegal acts actually amounts to a resounding failure of our system and plays right into the hands of the criminals who seek to destroy our societies through terror. ... [I]n the process, we give these criminals a degree of legitimacy -- that of fighting an unfair system .... (¶ 14)

(Next counterterrorism update: the status of accountability, at home and abroad.)