Thursday, December 02, 2010

Foreign and Domestic

As I read various things about the wikileaks document dump, something becomes very clear. Many commenters don't or can't distinguish between domestic law and foreign policy.

First off, the laws that govern US citizens and others within our borders are specific to this geographical location. They may apply to our citizens outside our borders, but that is more complicated and will depend on where that person is - a military base, a consulate, during a diplomatic meeting, on personal vacation, etc. - and what that person is doing. Restrictions and penalties are higher for people serving the nation in an official capacity (military, diplomats, trade representatives, etc.) because they have to varying degrees the authority of the nation behind their actions.

The First Amendment doesn't apply to what Assange is doing. Period. He's not a US citizen, he's not in US territory, and his documents are stolen property. This document release is not the Pentagon Papers or the records from Abu Ghraib, for example, which involved Americans releasing materials directly to American news organizations. To claim that efforts to shut Assange/wikileaks down is somehow violating Assange's First Amendment rights is misunderstanding where and how rights originate and how law is applied. He has no standing.

Likewise, Assange can't be tried for "treason" for the very same reasons that he has no claim on the first amendment. A foreign national's use and abuse of any given nation's government documents, from stuff downloaded from a website to the most highly classified printed memos, cannot qualify as treason. It is doubtful that there is any legal remedy the US can pursue for the material being released by a foreign national using resources not housed in US territory. At most, it can call on the nation(s) where Assange and/or the materials (in this case, database and web servers) are located to prosecute under their laws, or simply to seize the materials. If the other nation(s) concur that there are grounds for action (such as determining that, regardless of content, the documents are stolen property and that Assange/wikileaks do not qualify for protection as journalist/news outlet), then something may occur. I'm assuming here that Assange is merely the recipient of stolen goods and did not steal them himself. If that is the case, then he is at risk of extradition.

Amazon refuses to house the digital documents on it servers. It is not violating Assange's "rights" by doing so because Amazon is not a government entity and because Assange has no rights apart from those held and exercised as a citizen of a particular state. The relationship between Assange and Amazon is purely commercial. There is no obligation on Amazon's part to support Assange's political activities. If the servers in question are physically located in the United States (and most of Amazon's cloud is here) then they may incur legal liability for distributing stolen goods. Given that they are not a news organization, they have no journalistic protections with regards to government documents. There is a question of whether they can hand over to the US government digital assets placed on its servers by someone else. Deleting the virtual machines that Assange spun up to house the files is probably what happened, and has the least liability for the company. I've seen the Service Level Agreements (SLAs) cloud computing centers use and their liability is usually limited to the value of the service provided, i.e., the cost of the disk space and bandwidth.

The same does not hold for the American nationals who provided the material to Assange. As I've argued previously, this is not just one disgruntled soldier copying stuff onto some CDs. (Joseph Cannon offers as reasonable an explanation of the materials as I've yet read, though I think the material is less coherent than he finds it to be.) The people who had access were under a legal obligation to not release this material, even the non-classified stuff, without approval. Thus, a crime is involved. The more secure the document and the greater the amount of information passed, the more egregious the crime. This was the foundation of the outrage over the Valerie Plame case - information was deliberately passed in order to cripple an opposing political view. The information was provided by people who had sworn not to do such things and handed to journalists (I use that term loosely) to disseminate.

Second, the relations between sovereign nations is not one of democracy. They are not subject to each other, nor bound by each others' laws. They have agreements and conventions, protocols and procedures, but none formally has authority over any other. Reality shows us that nations use various kinds of tactics, from quiet diplomatic negotiations to massive invasion and everything in between, to leverage and coerce other nations to perform or refrain from certain acts. It is a constant condition of seeking advantage.

Which leads to another failure on the part of the gleeful wikileaks supporters - the inability to distinguish between circumspection and cover-up. The juvenile squalls that the government is "lying" because it has an official, public position on head of state Z or international situation Y, and behind the scenes is whacking its head on a desk because head of State Z is a sociopath who reneges on his/her agreements or is trying to extort something (or because we're pushing Z to go further towards a desired outcome), or is frantically trying to keep international situation Y from going into total melt-down or dealing with a last minute SNAFU, are stupid beyond belief. Please read my post The Hard Work of Peace from October 2009 for an account of the kind of circumspection needed in foreign policy.

It is the use of discretion and circumspection that allows nations to seek advantage without ending up in annihilation. It also allows skulduggery and deceptions to flourish. They are inextricable elements of diplomacy. They contribute to which nation or bloc of nations will be hegemonic, or if hegemony can be established at all by anyone. The fact is that this is how foreign affairs will be conducted because nations are continually seeking advantage. Nations cannot opt out of the Great Game.

Which gets me back to the wikileaks data dump. Someone is seeking advantage with this carefully selected set of documents, and it is not Julian Assange. I deal with his kind of arrogant techno-dweeb every day. He is a smug narcissist, more like to Obama than anyone else on the public scene - cold, cerebral, self-centered, convinced of his own superiority, and going to forge ahead with his plans for the world, consequences be damned. He wants to be the center of attention and this is how he's figured out to do it, by catering to other moralistic (yet, oddly enough, deeply morally challenged) absolutists who cannot bear to see shades of gray. They refuse to see any other actions save the ones that outrage them so and cannot bear interpretations that vary with their own vision of How Things Need to Be. In that way, they are not the opponents, but rather the mirror image of the neocons who relentlessly pursue empire before all else, both indulging in their fantasies of violent take-downs and emotionally satisfying comeuppance.

It makes for ironic reading.

There are more troubling documents mixed in with the neocon messaging, such as what was the US doing (or failing to do) during the Honduras coup in 2009. Unlike the bulk of the communiques, this one points at US policy that has been rotten for decades. Will the administration report truthfully about Cuba? Doubtful. In the middle east, it looks less like empire and more like a dog fight to try to keep the regional power brokers from guaranteeing failed states and games of nuclear chicken. There is no good end for anyone to achieve in that arena, I fear, only keeping the battles small and and the disasters slow motion.

At the risk of infuriating a wide swath of readers, I'll say for the record that I am not outraged by current US conduct in foreign affairs. I distinguish between being imperial and being hegemonic (me and my damn political science distinctions, I know, I know...) and say that the US is pulling back from the former and must remain the latter. I'm also going to insist that other nations are far more engaged and purposeful actors than the US critics give them credit for being. Read this fascinating account, The Grocer and Alice's Cat, for a lesson in how other nations take action in their own pursuit of self-interest. International relations is the realm of interests, not morals, and always has been. The Left's fantasy of a pure foreign policy is just as deluded and self-destructive as its fantasy of pure domestic politics. At some point, US hegemony will cease. I have my doubts about what will follow.

But that will happen in its own time. For now, I don't think wikileaks should be shut down merely because it holds documents that are embarrassing, but I'm also not terribly upset that Assange will get his ass handed to him by the many nations and governments he has embarrassed. That's how foreign affairs are conducted.

I'm also not among those drooling in anticipation over the bank papers release. If the recent dump is any indication, we'll be seeing files that Citibank handed over about Bank of America, there will be nothing in it that regular readers of Calculated Risk and naked capitalism don't already know, and the ratio of documents that cause moral outrage vs. those that present actionable material will be negligible.



portia.vz said...

Agree with Cannon that Iran is the key. Someone is starting to beat the drum for action and featuring Iran prominently in the cables is striking.
Agree with your assessment of Assange's right to flood the world with sensitive government documents. He doesn't really have any protections.
Disagree with your assessment of BoA documents. Yes, there's probably nothing new there that nakedCapitalism hasn't already seen. BUT wikileaks is now a brand name in the news where nakedCapitalism is not. We tend to forget that the blogosphere is still a pretty rarefied environment populated by political news junkies. Most people don't have time for that. So, if a wikileaks dump on the BoA documents hits the evening news, it will have a much greater impact and generate more outrage than if it stayed on the tiny microphone of the left blogosphere.
Assange is now notorious. I don't necessarily agree with his motives. Mostly, I question his lack of discretion. He should have been much more selective in his leaking. But now that he's out there on the world stage and has the BoA documents, I'd get them out there to the widest audience if I were him before he's shut down or shut up.

Anglachel said...

Hi portia.vz,

My point is that, based on the questionable quality of the other wikileaks dumps, I'm not holding my breath for what may or may not get released over the US bank. There's a difference between depositing a pile and making an argument or putting together a case.

This is the main problem with the release of the diplomatic communications. If Assange (et. al.) wanted to make a case about malicious acts, then there would only be a few hundred (at most) documents and they would focus on something like Honduras. He's not making an argument, he's throwing a temper tantrum. He has willy-nilly tossed out materials because he refuses to make distinctions between kinds of actions - this is ordinary diplomatic back-and-forth, this is unacceptable behavior.

In the end, what Assange has done is allow himself to be used by the hardliners of various regimes while diluting what could have been some very effective arguments against that hardline position.

What is controversy about now? Compare to the release of the Abu Ghraib photos. There was something utterly, undeniably incendiary and they took center stage. Currently, the news corps is snickering over the infelicitous descriptions of heads of state and feeding Assange's paranoiac ego trip.

If you are into bashing the US no matter what, you'll be happy with the dump. If you want to have pressure to bring to bear to move various administrations one way or another, you're TSOL unless the dump *is* your pressure.


Ralph Dratman said...

It's interesting that many actions which are arguably crimes against a sovereign power can now be effectuated entirely by remote control, without the necessity of setting foot into the target country. Presumably that is why this sort of jurisdictional puzzle has not been much of an issue in the past.

Before the internet, how easily could you commit a crime against a country if you are not even located there?

Blackmail was, of course, always a possibility, but threatened revelation of nasty tidbits was normally a private problem, to be settled privately. And the blackmailer's interests would hardly be served by throwing his information to the four winds.

On the other hand, bad things done in one place to another country entirely could be quite handy for starting up a nice little war. Think of the Archduke...