Wednesday, December 1, 2010

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.


mihai said...

It seems strange to me that everybody talks about how to prosecute Assange, but nobody talks how to prosecute those he exposed. For instance:

The foreign and U.S. leaders for inciting to crime of aggression (and conspiring to commit it) by asking for a war with Iran.
The U.S. government for bribing foreign leaders.
The U.S. government for spying on the U.N.
The U.S. government for killing civilians in Yemen and elsewhere.

profny said...

I would like to see another more progressive response from jurist on IntLawGrrls blog that would use the disclosures on WilkiLeaks as a narrative to contrast the crimes of the "Bush" clique a la Carl Rove, Dick Chaney, Libby et al., who outed former CIA operative Valerie Plame whose life in my opinion was placed in far greater danger than what Julian Assange has done. To me Assange used the technology creatively much like what Daniel Ellsberg did when he released the Pentagon Papers. Assange should be applauded and defended by lawyers all over the world for having the courage to put the dirty laundry out for a global public view that literally demonstrates just how forked tongue are those we send to infuse diplomacy while representing our interest around the world.

This attack from Washington on down to all of the apologist including those who craft the legalese and are calling for Assange's head is really about what historian Howard Zinn reminded that the greatest fears of those who want to maintain and control power in the United States is when the people in this country are revealed secrets which are so repulsive that any mass response could very well lead to the possibility of a revolt.