As of early 2009, it’s officially the Plurinational State of Bolivia.  (Okay, news travels slowly to Philadelphia; perhaps to your town, too?)  That may seem like a technical change, but Stanford geographer Martin W. Lewis makes the case that it gives the lie to the very concept of nationhood as we conventionally understand it:

The idea of the nation-state has become so powerful that it has blurred the distinctions between its component elements, impeding understanding and communication. Certainly most people in the United States consider all countries to be nation-states. In common parlance, “nation-state” is actually a redundancy, as “nation” has devolved into a mere synonym for country or sovereign state. This slippage is neither new nor specifically American; it is encoded in the very name of the world’s premiere global organization, the United Nations, as well as that of its predecessor, the League of Nations. But with Bolivia going out of its way to declare its non-nation-statehood, more precise terminology becomes necessary. Referring to contemporary Bolivia as a nation or a nation-state is simply wrong; that is exactly what the Bolivian government has proclaimed itself not to be. . . .

The nation-state ideal is attractive in part because it is so simple. Things would surely be easier if the world were actually divided into unambiguous units that were at once nations, sovereign states, and countries.

The appeal is not just in the simplicity.  The nation has generated and justified the state.  Once the two are decoupled, it’s not so clear why things should be organized as they are.  Of course even with the decline of the nation, we’re still left with the state, even in Bolivia.  Count it a legacy institution.

What will daily life in Jerusalem be like a century from now? This is the theme of the Jerusalem 2111 International Animation Competition, organized by the Association of Planning and Conservation- Jerusalem (Beit Hamodel).  The blog io9 has a post with links to some of the submissions, which include visions of a depopulated Jerusalem under UN control, what looks like a Marxist revolution, a floating city, and the winning entry “Secular Quarter #3,” embedded above. A while ago, I blogged about African cyberpunk and what we may learn from science fiction from lesser developed countries. Similarly, the Jerusalem 2111 entries (though not necessarily from LDC’s) are examples of how much can be said with very short films of speculative fiction. Great conversation starters.

The Guardian published an editorial by a Republican political operative today blaming WikiLeaks for releasing a State Department cable concerning a meeting between Tsvangirai and Susan Rice in which Tsvangirai discussed the possibility of peacefully removing Mugabe from power:

Now, in the wake of the WikiLeaks’ release, one of the men targeted by US and EU travel and asset freezes, Mugabe’s appointed attorney general, has launched a probe to investigate Tsvangirai’s involvement in sustained western sanctions. If found guilty, Tsvangirai will face the death penalty.

And so, where Mugabe’s strong-arming, torture and assassination attempts have failed to eliminate the leading figure of Zimbabwe’s democratic opposition, WikiLeaks may yet succeed. Twenty years of sacrifice and suffering by Tsvangirai all for naught, as WikiLeaks risks “collateral murder” in the name of transparency.

Before more political carnage is wrought and more blood spilled – in Africa and elsewhere, with special concern for those US-sympathising Afghans fingered in its last war document dump – WikiLeaks ought to leave international relations to those who understand it – at least to those who understand the value of a life.

Tsvangirai has not yet been charged, much less convicted, sentenced to death, and executed.  And, of course, Mugabe has been trying to kill or otherwise eliminate Tsvangirai for years — including unsuccessfully prosecuting Tsvangirai for high treason for allegedly hiring assassins to kill Mugabe (a tad worse than the political solutions he advocated to Rice).

What is most interesting, though, is the editorialist’s claim that the release indicates WikiLeaks does not “understand the value of a life.”  WikiLeaks released the cable on 8 December 2010 at 9:09 pm.  The Guardian released the same cable on 8 December 2010 at 9:30 pm — 21 minutes later — along with, also at 9:30 pm, a lengthy accompanying article discussing its contents.  The release was thus obviously orchestrated by WikiLeaks and The Guardian, the latter ensuring that the cable would find a global audience.

But, of course, only WikiLeaks does not “understand the value of a life.”

UPDATE: WikiLeaks has tweeted that, in fact, The Guardian itself chose the cable for publication.

Julia Preston’s lead story in yesterday’s NYT Times highlighted the shift to state governments as immigration battlegrounds.  Several are looking to be SB 1070 copycats.  I don’t think those will go anywhere in the face of quiet but intense opposition from the business community, who want the cheap labor and who don’t want to be in the cross-hairs of the sort of boycotts that have been aimed at Arizona concerns.

The new development here is an effort to take on birthright citizenship from the bottom up:

The newest initiative is a joint effort among lawmakers from states including Arizona, Oklahoma, Missouri and Pennsylvania to pass laws based on a single model that would deny American citizenship to children born in those states to illegal immigrants. The legislators were to announce the campaign in Washington on Wednesday.

The states may have some wiggle room when it comes to immigration law enforcement.  But citizenship is altogether out of their league.  Unlike immigration — the power over which the Constitution nowhere expressly allocates — we’ve got the 14th amendment as well as the Naturalization Clause as evidence of exclusive federal authority.  It doesn’t make a lot of sense to devolve citizenship determinations to the states, for fear of states that will be too lax as well as too strict.  If any of these state measures were enacted, there’s pretty much zero chance that they would stand up in federal court, and the likes of Russell Pearce and Kris Kobach have to know it.

So what’s the motivation?  It could just another PR stunt from those intensely frustrated by the stalemates in Washington, by way of bringing attention to birthright citizenship at another level after many years of failed attempts to scale it back in Congress.  But I wonder if proponents might be looking for a vehicle to put the underlying question on the judicial table.  The courts have never squarely held that the children of undocumented aliens are covered by the Citizenship Clause.  Could state laws on the question present such an opening?  My guess is that the courts would duck the merits and dispose of the case on federalism grounds.  At most, proponents get some judicial speculating. This initiative may get a big roll-out, but it isn’t going to stick.

UPDATE:  Here is the Arizona bill.  Another front page story from the NYT.  I’m sorry, but this is pretty goofy.  I’m more willing to accept state-level action (the good and the bad) on immigration than most folks, but it just doesn’t work with citizenship.

Oxford has sent me the initial version of the book cover.  Here it is:

The painting, “The Red Stairway,” is by Ben Shahn, a Lithuanian-born American artist who painted between the 1920s and the 1950s.  In 1942 and 1943, Shahn created propaganda posters for the Office of War Information (OWI); his poster about the destruction of Lidice is an absolute masterpiece.  The OWI considered a number of his other posters to be insufficiently patriotic — i.e., too overtly left-wing — and refused to issue them.  “The Red Stairway” itself was painted in 1944 to illustrate the futility of war.  Here is Shahn’s own description of the painting, which I had on my wall when I was 12 (funny how stable one’s aesthetic tastes are!):

It showed a crippled man walking up an endless stair, and then when he came to the top of that stair he went down again. And the whole thing was in a ruin of rubble and burned-out buildings. To me this is both the hope of man and the fate of man, you know. It’s obvious almost, that he seems to recover from the most frightful wars, the most faithful plagues, and goes right on again when he knows full well that he’s going into another one; but that’s that eternal hope in the human being.

I hope readers like the cover.  My only question is whether the “Oxford” belongs on the top or bottom (with everything moved up if it’s on the bottom).  Any thoughts?

We’ve been light on blogging with the holidays this week.  So, as 2010 comes to a close, I thought I’d open a comment thread for those readers still trolling the blogosphere this week to note your favorite Opinio Juris post of the year.  For me, it turns out I’m fond of bird dung, at least when it becomes grounds for exploring the origins of territorial sovereignty.  Other nominations welcome.  And Happy New Year.

To all OJers everywhere who celebrate it, Merry Christmas, and to everyone a joyous holiday season.  It is snowing large wet flakes here in DC on Christmas morning.  In my case, my wife and I drove down on Thursday to Chapel Hill, North Carolina and drove my wife’s elderly parents up to DC to join us.  Other family have arrived as well, and I am Most Pleased to say that so far I have not been moved to issue an appeal that next some year some nice Jewish family temporarily adopt me during the holidays and take me someplace warm and far away.

Like many of us here at OJ, I have friends celebrating this Christmas, away from friends and family and loved ones, in places ranging from Iraq, Afghanistan, Sudan, Congo, and other places, and best wishes and hopes that you will be sooner rather than later back with your loved ones.  I should lastly report that at the Christmas children’s Mass last night at the parish, Santa made an appearance and pronounced me on the “nice” side of the “naughty-nice” list.  I have a candy-cane to prove it.  It is true, as he handed it to me, he muttered something about “defining deviance down,” but still.  I have not yet been downstairs to see what this means, but that’s next.

Merry Christmas and to all our readers and friends, best wishes to you and your families and loved ones.

True to James Gathii’s comment to my last post, the Prime Minister of Kenya, Raila Odinga, has made it clear that Kenya won’t be withdrawing from the ICC anytime soon:

Kenya’s prime minister on Thursday dismissed as futile a motion by lawmakers to withdraw from the statute establishing the International Criminal Court (ICC) - a move intended to head off the trial of senior political figures.

ICC Chief Prosecutor Luis Moreno-Ocampo last Wednesday named six Kenyans he considers most responsible for the violence that claimed more than 1,100 lives in the wake of December 2007 disputed elections.

Uhuru Kenyatta, deputy prime minister and son of Kenya’s first president, and William Ruto - who has been suspended from his post as higher education minister pending a corruption probe - were the two highest profile accused.

‘The government isn’t pulling out … because this will be an exercise in futility,’ Odinga said, citing rules that would leave the ongoing cases unaffected by Kenya’s withdrawal.

Once again: if the Kenyan MPs want to try the suspects locally, all they have to do is, you know, actually get around to doing it.

Another Indian diplomat gets the treatment, this time in Austin.  Colum Lynch has this useful wrap in WaPo on the issue of diplomats and security screening, see also my post about another recent incident in Mississippi.

I don’t get it:  Why don’t diplomats get a pass, like crew?  Has there ever been a terrorist attack undertaken by an accredited diplomat?  It wouldn’t make much sense, even if a country wanted to do terrorist damage, insofar as it eliminates any deniability.  I guess you could have a diplomat going rogue and doing al Qaeda’s bidding instead of his state employer’s; but is that small probability worth upsetting governments whose anti-terror cooperation is important to addressing more likely threats?

This according to the BBC:

Kenyan MPs have voted overwhelmingly for the country to pull out of the treaty which created the International Criminal Court in The Hague.

The move comes a week after the ICC prosecutor named six Kenyans he accuses of being behind post-election violence.

The prosecutor’s list included senior politicians and civil servants.

The MPs do not have the power to effect any immediate change in relation to the ICC but they have sent a message to government to start withdrawing.

Article 127 of the Rome Statute permits Kenya to withdraw from the Court, but doing so would have no impact on the OTP’s investigation of the six government suspects.  A state’s withdrawal only becomes effective after one year, and Article 127 specifically provides that withdrawing “shall not affect any cooperation with the Court in connection with criminal investigations and proceedings in relation to which the withdrawing State had a duty to cooperate and which were commenced prior to the date on which the withdrawal became effective, nor shall it prejudice in any way the continued consideration of any matter which was already under consideration by the Court prior to the date on which the withdrawal became effective.”

Kenya keeps insisting that the six suspects should be tried in a domestic tribunal.  Perhaps, instead of undermining the Court — which it fully supported until it found itself in the OTP’s crosshairs — the government might consider actually creating one.  After all, there is a certain Article 17 in the Rome Statute designed for just that situation…

ADDENDUM: Does Moreno-Ocampo even read the Rome Statute?  Here is what he said to a reporter about the MPs’ motion:

Even if Kenya should pull out of the Rome Statute, it would not halt the ICC probe into the six suspects due to the one year’s notice needed to pull, according to Moreno-Ocampo.

‘I don’t think there is any way to change the case,’ he told VoA’s Straight Talk Africa on Wednesday evening. ‘According to the law, if Kenya withdrew from the system it would be one year, so it would be late for this case.’

As noted above, an investigation commenced before a state’s withdrawal becomes effective continues to be valid even after that date.  So the Kenyan investigation would continue to be valid even if Kenya could withdraw immediately from the Rome Statute.  The one-year delay is only relevant to the withdrawing state’s other statutory obligations.

When Fox News isn’t busy making people dumber, it’s writing chyrons like this:

A stark reminder that freedom of expression is indeed a precious thing:

Jafar Panahi is one of the most acclaimed film directors in the world. Admirers like myself were horrified and astonished at the news, announced yesterday, that Jafar Panahi had been sentenced not only to six years in prison, but to an unimaginable twenty-year total ban on all his artistic activities—including film making, script writing, traveling outside the country and speaking with the media.

He was convicted by a Revolutionary Court of “propaganda against the system” for having exercised his right to peaceful freedom of expression through his film-making and political activism. He was specifically accused of making an anti-government film without permission and inciting opposition protests after the disputed 2009 presidential election. Mr. Panahi’s artistic collaborator, Mohammad Rasoulof, was also sentenced to six years in prison.

Jafar Panahi is the director of such masterpieces of Iranian cinema as “Badkonake Sefid” (White Balloon), “Dayareh” (Circle), for which he won the Golden Lion at the Venice Film Festival, “Talayeh Sorkh” (Crimson Gold), and “Offside.”

“White Balloon” is phenomenal.  Go rent it — and all the others.

Hat-tip: Una Moore.

Today at Lawfare:

If DOJ tries to prosecute Assange, we will see more and more scrutiny of double standards in the treatment of traditional media leak solicitors (NYT etc.) v. Assange, and of double standards in the treatment of high-level U.S. government leakers v. Assange.  Scrutiny of the first double standard will weaken press freedoms as the government condemns as criminal the everyday practices of national security reporters (and other reporters) in soliciting and facilitating leaks of classified information.  (Vice-President Biden’s distinction between Assange conspiring to get classified information from Bradley Manning and a traditional media reporter having a piece of classified information drop in his lap without solicitation is very naïve.)  Scrutiny of the second double standard will reveal the shocking regularity with which top government officials leak classified information, not obviously in a principled manner, and not obviously consistently with the rules governing the handling of such information.

And be sure to check out the Tuesday Morning Quarterback column by Gregg Easterbrook, another conservative, to which Jack links.

It’s interesting to watch a general consensus form among scholars on both the left and right that even if Assange could be prosecuted (an open question), he should not be.  I would not have predicted that a few weeks ago.

UPDATE: Make sure to also read Glenn Greenwald’s discussion of today’s article in the New York Times revealing classified information about the military’s plans to increase the use of ground troops in Pakistan.  Clearly the “officials who described the proposal and the intelligence operations” — who “declined to be identified by name discussing classified information” — as well as the journalists who solicited the information from them, need to be arrested, placed in solitary confinement for 23 hours a day, and prosecuted for espionage and treason.

From a new pamphlet, Why Does Sovereignty Matter to America? Merry Christmas from the folks at the Heritage Foundation:

[T]oday, our sovereignty faces new threats. International organizations and courts seek to reshape the international system. Nations are to give up their sovereignty and be governed by a “global consensus.” Independent, sovereign nations will be replaced by “transnational” organizations that reject national sovereignty.

The demand that the United States bow to this “global consensus” does not respect American sovereignty. The offenses the Founders complained of in the Declaration of Independence now have an international flavor. This new project is filled with examples of institutions, courts, and “taxes” that violate the spirit of the Declaration:

• In 1998 the International Criminal Court was established. It is empowered to subject American soldiers to criminal prosecution in Holland for alleged war crimes and crimes against humanity. The Founders rejected trying Americans outside American courts.

• In Kyoto, Japan, in 1997, and Copenhagen, Denmark, in 2010, an international conference drafted a global treaty to regulate energy use in the United States. An international bureaucracy would monitorcompliance with the treaty’s terms. The Founders rejected subjecting Americans to “a Jurisdiction foreign to our Constitution.”

• In recent years, international organizations and foreign leaders have proposed “international taxes” on airline tickets and financial transactions—taxes that would be borne by American citizens and businesses. The revenues collected would be spent by unaccountable international organizations. The Founders rejected taxation without representation.

Hang on to your wallets, the international taxman cometh!  This is clearly intended for mass distribution, at a level that even school children might understand.  I think this is a waning sentiment unlikely to descend to the next generation, as even conservatives find something to like about international law, but so deeply entrenched a mindset won’t go easily.

It is with great concern that I hear about this because it puts Julian and his defence in a bad position. I do not like the idea that Julian may be forced into a trial in the media. And I feel especially concerned that he will be presented with the evidence in his own language for the first time when reading the newspaper. I do not know who has given these documents to the media, but the purpose can only be one thing – trying to make Julian look bad.

Lawyers for Julian Assange–December 19, 2010

We simply have a very easily understood promise. Unlike most media organizations, we don’t arbitrarily choose what to publish or not to publish based upon the political or personal whims.

Julian Assange–December 17, 2010

We make a guarantee to people that provide us with material that provided their material meets a simple criteria, that is, it has been restricted from the public record, or has been censored and is under an active suppression and it is of diplomatic, political or authorical significance, provided they get it to us we will eventually publish it.

Julian Assange–April 7, 2010

We will fight will all the tools at our disposal, technical, political, legal to make sure the material remains up and published. Any material of political importance or ethical or diplomatic or historical relevance, that is our criteria, that is suppressed we will accept. That is our line in the sand that we have consistently enforced. And previously no one have been able to enforce that. So, this is, yes part of this revolutionary ideal.

Julian Assange–April 26, 2010

Consider three different takes within the last two weeks on the rise of China and impliedly American decline, with different preoccupations.  The first is historian Paul Kennedy’s take in TNR.  It’s a puzzling admixture of “don’t worry, it’s just a rebalancing that was bound to happen if you take the long view,” and “do worry, because the moves the US is making to accommodate the rise of China are going to be very bad for the US.”  It is hard to tell whether Kennedy is saying don’t fight City Hall, or resist decline as long as possible.  The second is from the Weekly Standard’s economics columnist, Irwin Stelzer, in a blistering take on how the US is seemingly incapable of taking a strategic view as against a rising power that has a unified field theory of economic and military-geopolitical power.  The third is the much-noticed TNR essay by Mark Lilla, observing that Carl Schmitt and Leo Strauss are much debated theorists among China’s elite political and social theorists and intellectuals.  Much to ponder in Professor Lilla’s essay, and I won’t try to do it justice here, as it deserves its own post.

For my own part … I have been working on a preliminary presentation  (“paper” would be nice, but so far not true) for a meeting in a couple of weeks at the Hoover Institution on hegemony, legitimacy internal and external, and, by implication, China.  It arises out of my book manuscript on US-UN relations which, unsurprisingly, touches on the questions of hegemony and legitimacy, in relation to the US and to China, as well as what I describe as the parallel systems of international organizations and the hegemonic US security guarantee.

I am not a China expert, and my interest lies in writing something on the general conditions and meanings of hegemony and legitimacy.  Those general conditions have relevance to current discussions of the United States and China in the world. So one possible title is “How to Know When China Is a Hegemon,” and another is “What Becomes a Hegemon Most?”  Each is a little facetious, but each points to serious questions in today’s discussions of the rise of China and the apparent and, for many, presumed decline of the US.

Five things are principally on my mind.  First, even at this stage of a rapidly unfolding debate over the rise of China, there is still an awful lot of treatment of China as a matter of power simpliciter in the world — the classic bouncing billiard balls of international relations realism.  To the extent that this gets broken out into something more nuanced, it is still very often simply a matter of economic power translating to military power. But of course it has to be more than that.  The role that is being attributed to China in many of these same discussions is more than power alone, whether naked military power or combined military-economic might.  It is a role that is about power that means authority, and authority that implies not merely realist heft in the world, but rising — reaching for — hegemony.

Not necessarily global hegemony in the sense of the United States today; nor “merely” hegemony within a geographical range such as Asia; I’ll call it “rising hegemony” and set its issues aside.  Second, instead, hegemony is (partly) a function of power, but what makes it “hegemonic” is power that issues as “authority.”  Which is to say, the “legitimate” expression of power, at least in the rough terms of being roughly accepted by those under its sway.

Third, however, legitimacy for purposes of hegemony is not the “agreement” or necessarily the “consent” of those under its sway — if it were, it would not be the relationship hegemony implies.  Hegemony is not collective action or, in international relations, collective security.  On the contrary, hegemony in security matters is what the United States offers to its allies today — the acknowledged ability to free ride on the strong horse.  Hegemony offers allies a double arrangement: they are happy to free ride on the hegemon so long as they see their overall interests lying in train to the hegemon.  Not in every single thing, but enough, which is largely the position of the NATO allies.  However, the flip side that security policy is set in the end by the the hegemon, which bears the cost and looks to its own interest first.

Yet — the crucial yet — that the hegemon looks to its own interest in the first place is precisely what causes allies to trust it.  Because the strong horse looks to its interests first, allies will believe it — and it avoids the problem of collective action, hold-up, insincere promising and defection that characterizes true collective security (e.g., UN collective security).  This means that “consent” in any particular sense is not what gives hegemonic order its legitimacy, or is what turns hegemonic power into authority.  Consent in some very general sense, of not actively resisting through arms?  Sure, but not in any sense of consent that implies collective agreement.

Fourth, then, hegemony is about legitimacy, and it is difficult (not possible, that is) to talk about hegemony without having a theory of legitimacy.  This creates a certain problem for those parts of disciplines — political science, law and economics, sociology — that, in order to convert themselves into social science, have eschewed thick, intentional explanations (those that require an irreducibly psychological component) in favor of pure surface behaviorism.  Because full Weberian legitimacy is a social attribute of a social order, upon which the purely political and purely legal supervene; and the quality of legitimacy ascribed to such a social order requires not merely an outward behavior (obedience to authority, iterated) but an inwardly psychological quality of a habit of obedience done for a reason, intentionally done (in Anscombe’s sense) under a description and according to a reason.

Without an account of the intentionality and the psychological state of a habit of obedience by reason of a belief in the legitimacy of the social, legal and political order, we leave out a crucial component of the account.  And why, pray, with Laplace and God, have we any need of that hypothesis?  Because it gives one a reason to see the stability of an order on more than merely the prediction that they’ve obeyed before, they’ll obey again.  That is a large topic, obviously, but for now we add one additional point.  The legitimacy of order, including those of hegemony, among states and not only within them, presents certain grave difficulties because states are not individuals and do not possess psychological intentions in the full Weberian sense.  This is why, for example, a scrupulous scholar such as the late Thomas Franck was careful to offer his famous account of “legitimacy among nations” as being somewhat by analogy to legitimacy within a society of individuals.  But we leave that largely aside.

Fifth and finally, then.  For our purposes, we extract from the foregoing that hegemony, because it relies on legitimacy, requires a connection to the legitimacy of the hegemonic regime — not merely in its relations with other states, but arising from its legitimacy internally.  This is a matter often overlooked by those seeking to theorize the rise of China.  If it reaches for genuine hegemonic status, it will do so because it offers to important allies and followers in the world at large a model of legitimacy that arises from within its own state.  For all the loud dissenters against the US hegemony over the decades, after all, the legitimacy of its hegemonic order was premised on many things, but premised not least of which upon the legitimacy of the US within its internal order, and the offering of that internal order as an example to others in the world.  Working from that model, we tend to assume that liberal democracy is its own appeal, and in part that is true.

But it is also true that proffering a model legitimacy for purposes of supporting hegemony need not rely upon liberal democracy’s now seemingly fading universal appeal.  China is offering a quite different basis of legitimacy — one based around authoritarian politics and rapid economic growth.  Growth is the new basis of legitimacy, not human rights, or democracy, or liberalism.  To many regimes in the world, of course, this is music to their ears, having been told since the end of the Cold War that the only form of legitimacy is liberal democracy and the moral hegemony of human rights.  The broadest observation, however, is this:  Hegemony depends upon authority, not merely power, and authority depends upon legitimacy, and legitimacy has external, internal, and (crucially, but hardest to explain)  exemplary aspects to it.

Samuel Witten is counsel at the law firm Arnold & Porter LLP. He worked at the State Department for 22 years, including six years as Deputy Legal Adviser (2001-2007) and three years as Principal Deputy Assistant Secretary of State for Population, Refugees and Migration (2007-2010).

The world’s attention has been riveted on the potential foreign policy implications of the recent WikiLeaks disclosures. How will the disclosure of candid comments by Saudi leaders about Iran affect the political and military dynamic of the region? Will U.S. cooperation with Yemen become even more complicated by disclosures of cables about U.S. dialogue with President Saleh? What consequences might there be for current tensions on the North Korean peninsula if sensitive discussions about the region and the Six-Party talks are disclosed to the general public? What can be done to better secure this kind of sensitive information in the future? The answers to these questions have serious consequences and the leaks are a legitimate cause for concern for U.S. policy makers and diplomats.

This post focuses on another aspect of the WIkiLeaks developments — the effects of disclosures on the ability of the men and women of the State Department to do their jobs.

The Place of the Diplomatic Cable in American Foreign Policy

The diplomatic cable, a tool used by many governments, provides an official channel for U.S. diplomats abroad to report back to Washington and for Washington to instruct diplomats on how to approach relationships with foreign governments, the public overseas, international organizations and many other audiences. Many cables to and from our diplomatic posts include analyses of complex issues of foreign policy and diplomacy. Others provide candid recommendations of ways to advance U.S. interests against steep odds in dangerous and uncertain places. Some seek urgent guidance and identify sensitive information and options to address contingencies. Others offer insights into the character and motivations of foreign leaders, potential U.S. allies and opponents, opposition political parties, human rights activists, and dissidents.

Cables are a fundamental part of the State Department’s core culture, an essential component of how State Department diplomats and lawyers do business. The process of obtaining “clearance” on a proposed cable within the State Department (or from other concerned federal agencies) ensures that messages and instructions reflect all of the interests at stake and have the benefit of cumulative experience. Cables also create an official, historical record of the U.S. Government’s international actions and help ensure accountability for decisions.

During 22 years in the Department as a lawyer and a policy official, I drafted, edited, cleared and read countless cables. When overseas, I sent cables discussing and analyzing meetings or negotiations I attended or seeking guidance from Washington on possible options and instructions. When in Washington, where I was based, I made every effort to ensure that our outgoing cables were clear and detailed enough that colleagues around the world would benefit from precise analysis and assistance.

Damage from WikiLeaks disclosures go well beyond the immediate consequences reported in the media. The releases undermine the essential ability of our foreign affairs professionals to do their jobs. The leaks compromise the acquisition and flow of information around the world, reduce the effectiveness of our international outreach, and may put lives at risk.

Consequences of the Cable Trove

Proponents of WikiLeaks disclosures have put forward a number of arguments in favor of making these cables public. Putting aside the anti-Americanism of some supporters, there are those who suggest that the leaks promote a kind of openness, giving the public a better understanding of how diplomacy operates and clarifying the interests and goals of the United States and foreign governments. Some may argue that the knowledge of a potential leak – which always exists – may enhance the analytic and reportorial rigor of our diplomats abroad. In this respect, some suggest that the cables, overall, provide an advertisement for a State Department full of excellent professionals advocating and defending American interests around the world. There is certainly much truth in the latter. But to the extent there is any value in these public disclosures, that value, in my opinion, is far outweighed by the substantial negative impacts.

Some of the most striking consequences for State Department professionals include the following:

Information from non-public sources will be harder to obtain. Our foreign affairs professionals can do their jobs properly only when they can exchange information in confidence with foreign leaders, would-be leaders, academics, non-governmental organizations, and private citizens. Many interlocutors are willing to engage with American diplomats only because of implicit or explicit understandings that the exchanges will be kept confidential. The high profile firing of a senior German official whose non-public contacts with the United States were revealed for the first time by WikiLeaks can only be seen as a harbinger of similar damage to other U.S. relationships. It seems inevitable that many officials from foreign governments or international organizations, not to mention private persons at risk, will be more reticent in their contacts with the United States. The releases already made thus are likely to put a chill in our normal diplomatic dialogues; in some cases, it may take years to restore confidence and underlying relationships. Under Secretary of State William Burns spoke articulately about the consequences of Wikileaks at a recent press event in Santiago, Chile:

I think the Wikileaks disclosures have done significant damage to our diplomacy. Confidentiality and discretion and trust really are the core of what we do as diplomats. It’s not unique to diplomacy, it’s true for journalists, it’s true for lawyers, it’s true for doctors, it’s true in a number of other professions. Our ability to understand other societies and to have conversations and be able to protect the confidentiality of those conversations is essential to sensible policies and it’s essential to healthy relations.

Candid analysis and recommendations will be undermined by undue risks of disclosure. Diplomats are asked from the first day of their training to think critically. Their job is not merely to report on what they see and hear, but to evaluate, challenge conventional wisdom, and recommend strategies for advancing U.S. interests in complex situations. In this connection, difficult problems in foreign affairs rarely have obvious or easy answers. Rather, for each problem there are options, many of which require a complex series of actions to achieve, some of which will be sensitive and require maneuvering. In addition, experts in Washington benefit from “atmospheric reporting” (such as reports of what people are saying informally or what the public mood might be in some locations) because it helps them put other information in context. Candor and creativity in reporting and analysis could well be casualties of the shadow cast by WikiLeaks.

Our ability to help persons at risk could be diminished. We do not yet know how many candid conversations with foreign opposition groups, NGO leaders and private citizens are in the leaked cables or in other cables that have not yet been leaked. The concerns already expressed by NGOs such as Human Rights Watch and Human Rights First about the safety of dissidents and human rights advocates are real. People at risk need to know that their communications with the United States are secure and that we will do nothing to undermine their safety. I know from my prior experience managing the U.S. refugee assistance program that many of those who come to U.S. embassies for help are often the most vulnerable and in need of protection. If confidence in the integrity of our private communications is lost, the ability of our professionals to help those in need will be undermined and lives will be endangered.

Ben describes as “puzzling” my claim that his recent post on WikiLeaks reflects American exceptionalism.  I find his puzzlement equally puzzling.  Recall the quote on which I focused:

This, in turn, leads ineluctibly to Tom’s reciprocity point: If Congress can make such a demand on Assange, the U.S. would be in a bad position to object if the Congress of People’s Deputies made a similar demand on the Washington Post. I actively want more Chinese secrets revealed against the will of the Chinese government. Indeed, were Wikileaks spending more of its time undermining authoritarianism and less of its time undermining democracies, I might admire it. And I would find outrageous efforts by foreign governments to require American news outlets to keep their secrets for them. I’m not against double standards in all circumstances, so it’s possible that the right answer here is hypocrisy: Doing what we need to do and objecting when other countries do the same. But I agree with Tom that the situation would be very awkward.

As I noted in my post, Ben believes — reluctantly — that it is probably not a good idea to prosecute Assange under the Espionage Act for revealing government secrets, because he would not want Americans prosecuted by countries like China for revealing their secrets. Ben claims that this means he was making an argument against American exceptionalism, but I disagree.  Ben’s post clearly indicates that he is not opposed to double-standards in principle, even concerning Assange; his objection to using the Espionage Act to prosecute Assange is purely pragmatic, based on the idea that openly embracing the position that only the US should be permitted to prosecute non-citizen leakers (i.e., American exceptionalism) would be “awkward.”  I don’t see how that counts as an argument against exceptionalism; even the most uncritical cheerleader of US hegemony (which Ben manifestly is not) will occasionally conclude that openly holding the US and other countries to different standards is counterproductive to US interests.  Making that pragmatic call is not the same as rejecting American exceptionalism; rejecting exceptionalism requires accepting, as a matter of principle, that the US should hold itself to the same standards as other countries even if double-standards would in no way harm US interests.

More importantly, though, my claim that Ben’s post reflected American exceptionalism was not directed at his discussion of the Espionage Act.  Despite his view of that act, Ben is not opposed to prosecuting Assange and shutting down WikiLeaks; not only did he end his post by claiming that the “sex crimes case in Sweden is looking better and better as way of neutralizing Assange,” he has previously stated that he harbors “no small sympathy” for “prosecuting Assange and shutting down WikiLeaks.”  I presume that is because he believes WikiLeaks’ disclosures have harmed America’s national security, put American intelligence assets at risk, and made America’s diplomatic efforts more difficult.  Yet, as the quote above makes clear, Ben has no problem with the idea of WikiLeaks’ disclosing Chinese secrets, even if doing so would harm China’s national security, put Chinese intelligence assets at risk, and complicate China’s diplomatic efforts.  Indeed, he “actively want[s]” those secrets revealed and admits that he might even “admire” WikiLeaks if it revealed them.  Perhaps I’m wrong, but Ben thus seems to believe both (1) that Assange should be prosecuted and WikiLeaks shut down for revealing US secrets, and (2) that prosecuting Assange and shutting down WikiLeaks would not be warranted if WikiLeaks had only revealed Chinese secrets.

How is that not American exceptionalism?

Steve testified yesterday about WikiLeaks in front of the House Judiciary Committee.  Here is a snippet of his testimony, which discussed five major flaws in the Espionage Act:

Second, the Espionage Act does not focus solely on the initial party who wrongfully discloses national defense information, but applies, in its terms, to anyone who knowingly disseminates, distributes, or even retains national defense information without immediately returning the material to the government officer authorized to possess it. In other words, the text of the Act draws no distinction between the leaker, the recipient of the leak, or the 100th person to redistribute, retransmit, or even retain the national defense information that, by that point, is already in the public domain. So long as the putative defendant knows or has reason to believe that their conduct is unlawful, they are violating the Act’s plain language, regardless of their specific intent and notwithstanding the very real fact that, by that point, the proverbial cat is long-since out of the bag. Whether one is a journalist, a blogger, a professor, or any other interested person is irrelevant for purposes of the statute. Indeed, this defect is part of why so much attention has been paid as of late to the potential liability of the press—so far as the plain text of the Act is concerned, one is hard-pressed to see a significant distinction between disclosures by WikiLeaks and the re-publication thereof by major media outlets. To be sure, the First Amendment may have a role to play there, as the Supreme Court’s 2001 decision in the Bartnicki case and the recent AIPAC litigation suggest, but I’ll come back to that in a moment. At the very least, one is forced to conclude that the Espionage Act leaves very much unclear whether there is any limit as to how far downstream its proscriptions apply.

Go read the whole thing — and then go read his guest post today at ACSBlog, in which he elaborates on some of the themes of his testimony.