re: "America's Soul"

Jens David Ohlin at Lieber Code read this book that you might want to read too.

Money quote(s):

"Gregory Wallance has just published a fascinating – and contrarian – new book. Titled America’s Soul in the Balance: The Holocaust, FDR’s State Department, and the Moral Disgrace of an American Aristocracy, the book shines an uncomfortable spotlight on a rather unsavory moment in American history during World War II. Lawyers for the U.S. State Department became aware of the Nazi’s growing extermination of Jews, and rather than actively publicizing this fact, actually conspired to cover it up. At around the same time, the State Department blocked the rescue of 70,000 Romanian Jews on a death march in the Ukraine.

Wallance’s book paints a devastating portrait of the State Department at this crucial moment in time. In so doing, it adds much to the historical record regarding U.S. governmental conduct during the time period. In particular, it avoids the quick and facile reduction of a state’s government into a single agent with a unified approach to a complex situation. Instead, it provides a micro-analysis of how different departments -- and different lawyers all presumably serving the same organizational client -- were responding to the increasingly disturbing reports of Nazi atrocities. "

CAA is currently reading Erik Larsen's In the Garden of Beasts, which provides a similar perspective on American diplomatic impotence in the face of evil.

5/8

re: "NBC: Israel and MEK Responsible for Murdering Iranian Scientists"

Kevin Jon Heller at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") explored the legal and political ramifications.

Money quote(s):

"(P)recisely because it is a blockbuster that makes Israel and the MEK’s vast number of Democratic and Republican supporters in the U.S. look bad, (it) has been basically ignored in the “liberal” media"

A surprising number of very prominent politicians and former high government officials have come out in favor of "de-listing" the PMOI. It's something of a puzzlement to me.

"(I)n a rational world it should complicate efforts by the MEK’s U.S. friends to have the MEK de-listed as a terror organization"

So one would imagine.

As I've mentiond, I think, before, one of my major objections to de-listing the PMOI is that it's never come clean about the terrorism that it's known to have committed; in particular the assassinations of U.S. personnel in Iran.

"(B)ombings conducted by a civilian intelligence service such as the Mossad are not excluded from the Convention’s definition of terrorism. So yes, the Mossad’s actions in using MEK to kill the Iranian nuclear scientists qualify as terrorism."

Prof. Heller is referring to something called the "Terrorist Bombing Convention," of which CAA is completely (if momentarily) ignorant. To which the U.S. is a state party.

2/11

re: "Yes, Pamela, Some People Do Care — Including the U.S. Military"

Kevin Jon Heller at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") conflates the public urination video with the taking of body parts as trophies.

The part I agree with:

"The military’s response to the blossoming controversy has been admirable."

If, that is, you equate "admirable" with "swift" or even "hasty."

1/12

re: "al-Awlaki and Citizenship"

Peter Spiro at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") discusses AAA and what to do about his like in the future.

Money quote(s):

"Al-Awlaki obviously was obviously hostile to the United States; in an older world, in which our adversaries were also states, he would have lost his US citizenship as a member of the armed forces of another state. But the only way to lose your citizenship today is to walk into a US consulate and formally renounce it, a step al-Awlaki wasn’t in a position to undertake.

One response would be to adopt a Lieberman-type terrorist expatriation measure. I don’t think that would do a lot of good, other than generate yet another layer of litigation, this one over whether particular conduct evinced an intent to relinquish citizenship (constitutionally required, as per Afroyim v. Rusk). So that leaves us with some citizens who don’t really seem like citizens, which means that the citizen/non-citizen differential for rights purposes will get smaller still."

The laws regarding expatriation and expatriating acts are still on the books; this business about only those who voluntarily relinquish citizenship is a function of judicial interpretation, which can be overturned. And should be.

10/5

re: "Breaking: Children of Diplomats Getting US Citizenship!"

Peter Spiro at Opinio Juris looked a report about improperly granted U.S. citizenship.

Money quote(s):

"Yes, it’s true. There must be dozens, perhaps even hundreds of newborns who are extended US citizenship every year even though they are “not subject to the jurisdiction thereof.” Find the evidence in a report from the restrictionist Center for Immigration Studies here.

Perhaps I shouldn’t be so snarky: the report is a pretty interesting one."

Not only that, but certainly the children of foreign diplomats can be assumed to have a higher national loyalty to their parent's country rather than our own. That'd be one reason that at least that much of the "not subject to the jurisdiction thereof" restriction actually sticks and hasn't been reduced to Constitutional filler verbiage.

"It considers the single operative exception to the otherwise universal rule of birthright citizenship under the Fourteenth Amendment. (There is one major exception — those born into Native American tribal jurisdiction — but that hole was plugged by statute in 1924.) It’s generally understood to be a minor qualification to the otherwise absolute rule, but leave it to the folks at CIS (who run some very useful programs, including a daily wrap of media items relating to immigration) to check out its (non)effect on the ground.

Turns out that nobody is policing the exception. Children of diplomats born in the US get ordinary birth certificates, which is all you need to demonstrate citizenship."

This is something that consular officers abroad are expected to keep an eye out for when we encounter citizenship cases like this abroad. The State Dept. publishes an annual "blue book," IIRC, that lists all those foreign diplomats to whom this restriction might apply. In cases of doubt, we're supposed to refer back to Washington so they can make a determination.

There's still the exception for children born to members of an occupying army, but there's never been a case where that was operative. Hopefully there never will be.

7/ 11

re: "Congress’s Constitutional Power to Establish National War Policy in Violation of International Law – A (Belated) Response to Professors.... "

John Dehn at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") summarized the play-by-play on some international law back-and-forth.

Money quote(s):

"Opinio Juris hosted an excellent discussion of an important new book, International Law in the U.S. Supreme Court, a well-edited collection of essays about the Supreme Court’s approach to international law. Professor David Golove’s contribution asserting that post-9/11 Supreme Court “War on Terror” decisions are consistent with what he called our “Just War constitutional tradition” drew significant attention. In Professor Golove’s view, both the President and Congress are constitutionally required to comply with at least some international laws of war. Professor Andrew Kent critiqued the essay here, arguing that Golove’s claims, particularly those involving Congress, are inconsistent with Supreme Court precedent recognizing Congress’s power to set national policy in violation of international law.
I agree with Golove’s assertion that the executive branch must generally comply with any applicable international laws of war. Like Professor Kent, I am quite circumspect of the claim that Congress must as well. Harlan Cohen responded to Professor Kent’s post, suggesting that Professor Golove and Professor William Dodge (one of the book’s editors) may believe that all nations, including ours, are “absolutely bound” by certain rules of international law, those that the well-known (to the Framers and to academics) and influential Eighteenth Century international law commentator Emmerich de Vattel categorized “voluntary law.” " (Emphasis in original text. - CAA.)

There's actually no such thing as "international law."

Don't get me wrong; there is a body of customary, traditional, and treaty-based law (for values of "law") comprising a body of specialized knowledge which is generally termed "international law." But that "law" doesn't even come close to passing the common sense tests that would make it equivalent to other forms of actual law.

"After reading Professor Golove’s contribution to the book, Professor Ramsey’s response, and Professor Dodge’s related essay, I think there may be confusion regarding the obligatory nature of what Vattel denominated “voluntary law” and its relationship to both the contemporary laws of war and the war powers of Congress.

I believe Congress possesses the constitutional power (in conjunction with the executive, when necessary) to establish national war policy contrary to relevant international law so long as it does not violate the text of the Constitution. To the extent that Professor Golove’s unpublished research may have uncovered “longstanding understandings in Congress” that it must follow certain international laws of war, I suspect those understandings to be based in morality or wise policy, not necessarily constitutional law. Golove has to date given only scant evidence of what seems an elegant argument in favor of granting constitutional status to any such congressional understandings.

I agree that there are (and were) rules of international law that nations were believed “absolutely bound” to observe. They included what Vattel denominated the “perfect rights” of nations. Perfect rights were those “accompanied by the right of compelling those who refuse to fulfill the correspondent obligation” through armed force. However, the absolute “bindingness” of these rules existed only in international law." (Bold typeface added for emphasis. - CAA.)

There are some issues (more than some, but bear with me) with this perspective on the "bindingness" of international law.

For one thing, the perspective is astonishingly narrow in scope.

What we in the West call "international law" is a body of artifacts whose only relevance is within the larger context of the post-Westphalian international system. It is the height of civilizational and cultural chauvanism to suppose that it is truly global in application.

"(A) national policy, even one properly established under domestic law, may permit a violation of international law. But it cannot excuse that violation from the perspective of international law. In such cases, the policy is lawful in the domestic (municipal) legal system, but remains a violation of international law.

In my view, the key question is not whether the U.S. has ‘the power but not the right’ (to paraphrase Louis Henkin) to violate international law; it does. The key question is: which branch(es) of the U.S. government may constitutionally establish national policy contrary to international law? My research leads me to believe that in most contexts, including war, Congress does. In some very narrow circumstances it has been (and may still be) the executive alone." (Emphasis in original text. - CAA.)

The thing about violations of international law which are legal within a domestic legal system is the limited scope for enforcement. Who or what gets to enforce "international law" within another sovereign state and using what means or mechanisms?

"(T)he bulk of the contemporary international law of war (both jus ad bellum and jus in bello or international humanitarian law (IHL)) consists of customary and conventional constraints on conduct the natural law-based law of nations permitted. Therefore, contemporary IHL is not properly equated with Vattel’s “voluntary” law, which is law evidenced in or derived from natural law principles, generally observed for its utility, and obligatory on civilized states through their presumed (rather than express or implied) consent.

Vattel identifies three other categories of international law, (1) necessary, (2) customary and (3) conventional. Only necessary law, which consisted of the direct application of natural law to nations, was immutable or absolute. Vattel classified the other three types, including voluntary law, as composing the “positive law of nations” because “they proceed from the will of nations.” It defies logic to say that any species positive law cannot be altered at the will of the same nations that establish it." (Emphasis in original text. - CAA.)

"(T)o the extent that any rules in the contemporary law of war might be properly categorized “voluntary” law, the Constitution expressly assigns Congress the power to derogate from or abrogate such law. Importantly, this includes the power to infringe the “perfect rights” of other nations. Nothing in the constitutional text expressly requires Congress to exercise its powers to declare war or grant letters of marque (or reprisal, see below) in a manner consistent with relevant international law. This is why the Court did not, in its early decisions, review a congressionally established general or partial war for compliance with the law of nations."

The OJ article included a nice quote from Chief Justice Marshall (Talbot v. Seeman) to back up that last claim:

“The whole powers of war being, by the constitution of the United
States, vested in congress, the acts of that body can alone be resorted to as our guides in this enquiry [into whether France was properly deemed an enemy].” (emphasis added)

"Of course, none of these observations directly addresses Golove’s claim: that Congress believed itself to be limited by the law of nations when exercising its powers, and that this sense of obligation had a constitutional dimension or basis. There are, quite obviously, many reasons why members of Congress or Congress as a body might have boisterously made such claims. Chief among them would be to claim the legitimacy of law for proposed or adopted legislation infringing the perfect rights of other nations. Given the widely accepted origins of the natural law, some might also have felt morally obligated to observe it in spite of having constitutional discretion not to do so."

(9/6)

re: "Did the U.S. Stretch International Law In Order to Recognize Libyan Rebels?"

Julian Ku at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") found someone to answer this question:

"The U.S. government has recently announced it will recognize the Benghazi authority as the “legitimate” government of Libya. But is it departing from international practice or the international law relating to statehood and recognition in order to do so?"

re: "Proposed Legislation Seeks VCCR Compliance by the United States"

Duncan Hollis at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") has a good explanation of this issue.

re: "You Can Have a Welfare State, or You Can Have Open Borders, But ."

Kenneth Anderson at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") shows how Europe's experience parallels our own.

Money quote(s):

"This opinion piece addresses the same general concern as that book, updated to today: immigration and borders in Europe. In many ways, after all, at least alongside the sovereign debt crisis in Europe is the startling re-introduction of border controls in Continental Europe, and a call by Sarkozy and Berlusconi for a revision of the famous Schengen agreement removing border controls among twenty-two European states (not including the UK and Ireland)."

Be sure to read the quoted passages from the cited article. One slice of that:

"The Schengen agreements, signed in 1985 and 1990, permit
passport-free travel within 22 continental countries of the European Union (Britain and Ireland are among the exceptions), as well as non-Union signatories. Along with the euro, Schengen is Europe’s symbol, a milestone in its integration — on a continent long hemmed in by nationalism and bureaucracy, an Italian can travel to Paris without showing papers or changing money. And it’s growing: the European Parliament this week voted overwhelmingly to recommend extending Schengen to the European Union’s two newest members, Bulgaria and Romania."

re: "The Constitution and Libya"

Michael Ramsey at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") offers his learned opinion.

Money quote(s):

"Every major figure from the founding era who commented on the matter said that the Constitution gave Congress the exclusive power to commit the nation to hostilities. Notably, this included not only people with reservations about presidential power, such as James Madison and Thomas Jefferson, but also strong advocates of the President’s prerogatives, such as George Washington and Alexander Hamilton. As President, Washington on several occasions said that he could not undertake offensive military actions without Congress’ approval. Hamilton is especially significant, because his views on the need for a strong executive went far beyond those of his contemporaries. Yet Hamilton made it very clear that he read the Constitution not to allow the President to begin a war – as he put it at one point, “it belongs to Congress only, to go to war.” "

This seems clear enough. Congress has subsequently, during the Vietnam "Conflict" undertaken to delegate a little bit of that power across branches of government to the presidency, in the War Powers Act. But only within certain expressly circumscribed parameters.

"The fact that our use of force is limited to air strikes should not matter. Limited wars were well-known in the 18th century (Britain and France fought a limited war at sea and in North America during the American Revolution). The U.S. fought two limited wars early in its history, against France beginning in 1798 and against Tripoli in 1801. So far as I know, every person commenting on these events at the time thought that Congress had to authorize any initiation of force, even limited naval attacks. (In 1801, Hamilton argued that authorization wasn’t needed because Tripoli, not the U.S., began the war; but he agreed that congressional authorization would otherwise be necessary even in the context of an attack on a single Tripoli warship.)

Thus the founding generation thought the Constitution reserved war-initiation power to Congress. How could this be, though, if Congress has only the power to “declare War”, which we may think refers to making a (now-outmoded) formal announcement? Why can’t the President begin a war informally, merely by ordering an attack, without a declaration?

The answer is that in founding-era terminology war could be “declared” either by formal announcement or by military action initiating hostilities."

Fair enough. Deeds then, when words would be superfluous.

"Perhaps, though, the President also has power to declare war (after all, the Constitution expressly says only that Congress has it, not that the President doesn’t, and it could be part of the President’s power as commander-in-chief). Returning to Hamilton, a key passage in his Federalist 32 argued that often constitutional power could be held concurrently by different entities. But, he continued, an exclusive grant of power would arise where concurrent power would be “totally contradictory and repugnant” – that is, when one branch’s exercise of a power would wholly undermine an express grant to another branch. Hamilton didn’t give the example of declaring war here, but it fits his model: war, once launched, cannot be undone without consequences. If Congress’ power is to decide when war should begin, it follows that the President cannot independently launch attacks."

That's one of the (several) drawbacks of the War Powers Act; aside from the "nuclear options" of denying funding to American troops under fire and engaged in mortal combat OR initiating impeachment proceedings against, variously, the president and/or the secretaries of defense and state.

"(T)he founding generation’s views are clear and have firm basis in the Constitution’s text: the declare war clause gives Congress the exclusive power to decide when war should be “declared” – meaning begun by “word or action.” In Libya, President Obama has “declared” a war – a limited one, to be sure, but still a war by 18th century definitions – without congressional approval. That contravenes both the Constitution’s text and the founding era’s consensus understanding."

So what is to be done? It would seem that "standing" to do anything rests with two bodies: the Congress and the electorate. It remains to be seen which one, if either, will act, if at all. Neither Congress nor the public wish to deny support to our soldiers, airmen, and sailors who are doing their jobs and going into harm's way. Been there, done that. But note the lack of any "bump" in the president's poll standings.

People (and congressmen) are waiting, giving the benefit of the doubt, but when or if the U.S. begins to take casualties, particularly if "mission creep" occurs and there are "boots on the ground," then all bets are off.

re: "Libya: Did Citizen Evacuations Stand in the Way of Better Policy?"

Peter Spiro at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") is, as always, asking some of the right questions.

(Even if he is a lawyer.)

Money quote(s):

"It now seems to be the conventional wisdom (hard to shake once in place) that the U.S. has been slow off the mark on Libya. That may have consequences for U.S. standing in the region."

Conventional wisdom isn't always wrong. It just seems like it most of the time.

Still, perception influences reality, even if it does not (as some believe) equate to reality.

"The Administration got a defense out (on background) that it held off on more decisive action — such as imposing the sanctions that were finally put in place last night — pending the evacuation from Libya of U.S. citizens, U.S. diplomats in particular. As always, safety of U.S. citizens is said to be the highest priority in such unstable situations. Apparently, the U.S. embassy compound in Tripoli is poorly secured, with no Marine guards in place to defend."

No marines in Tripoli? Sounds like the inspiration for a Country & Western song, perhaps using the "Do They Know It's Christmas" tune from 1985.

But I digress.

"That’s a tough place to be. Obviously you don’t want to end up in a hostage situation (the politics of that would be horrific for Obama in addition to all the other reasons — the Carter comparison perfected). But does it have to be the case that U.S. policy itself is held hostage?

Perhaps the lesson here is to have contingency plans in place to pull U.S. officials out of such situations quickly (as of today, think Sanaa, Libreville, Yaounde, among others). That would have the downside of leaving other U.S. citizens without exit assistance, at least not in place. But many of them are taken care of by their corporate employers. Many others will be dual nationals, and only nominally American, and should be able to fend for themselves as well as locals."

There are contingency plans for lots of things. The Marine Corps has something of a sideline in NEOs (non-combatant evacuation operations), but some of the sketchier places tend to rather out-of-the-way and would need some assistance to get out and that assistance would take time getting there.

Recall that during the Rwandan genocide, our embassy folks had to convoy out of the country on their own, something that good RSOs and consular chiefs keep in the back of their minds as one of the nightmare scenarios to prepare against.

The argument about dual nationals has come up before, and The Onion recently did a piece lampooning the American practise of having to evacuate visitors to places nobody in their right mind should want to visit. I don't have an answer to either question, but it's nice to see people asking in public fora what consular officers sometimes ask each other quietly, where the public can't hear us.

(Don't get me wrong, we'll do everything we can to help, but think of us as firemen who can't help but wonder to one another just why you were playing with matches.)

re: "The Effects of WikiLeaks on Those Who Work at the State Department"

Samuel Witten at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") has written the best two-paragraph explanation of a cable that I've ever seen.

Money quote(s):

"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."

"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."

"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."

&

"The U.S. has aggressively sought to contain the diplomatic and strategic damage resulting from WikiLeaks disclosures. In this respect, any negative consequences for U.S. foreign policy that have resulted from WikiLeaks could well be compounded by additional disclosures, but may be ameliorated in many cases by the passage of time and subsequent events. Similarly, some of the negative professional and practical consequences at the State Department and in our international relations will improve over time.

That said, the profound unease and anxiety about the breach in our system through the unauthorized leaks may never disappear entirely. For the foreseeable future, foreign officials and private persons will understandably be worried about whether their dialogues with the State Department will be secure. Some candor and critiques by our own professionals may go unwritten or held in narrow channels of distribution."

If no one is willing to talk to us, we’re not going to be able to do much in the way of promoting mutual understanding. Or much of anything else.

The impact of this simply can’t be over-stated. No one can possibly believe their identities and the information they provide us will be held in confidence. We simply will no longer be trusted to pass information to the right ears and no further.

Any cable-drafter already knows that the potential readership of any given cable is quite large. Potentially, anyone within (and in some case outwith) the State Dept. possessing the right accesses could become a reader, either today or next week, next month, or next year. Cables are forever, communications-of-record; if nothing else their contents will become summarized and encapsulated in reports which trickle ever upwards.

Nothing levels our side of the playing field quite so drastically as when our mail is being read, even long after the fact. Candor and plain-talking are essential or you’re just spinning your wheels.

Time and again I’ve instructed report-writers to tell the facts, what they know and how they know it, what they saw and heard, as distinct from what they think and deduce from it (but include that too, clearly differentiated) and let “higher” do the second-guessing from their position of access to a wider ranger of information. Don’t self-adjudicate.

I must confess I’ve done this myself, pre-Wikileaks. Not writing everything I know or have heard about something, but passing the information (less the specific identity of a source) to “higher” through channels as secure (actually, in hindsight much more secure) as cable traffic but without the same paper trail. I thought I was just being paranoid about protecting my sources, but it’s true what they say: Paranoia Is Its Own Reward.

It also deprives “higher” with the fuller appreciation of that information which knowing the actual source can provide.

re: "The Effects of WikiLeaks on Those Who Work at the State Department"

Samuel Witten at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") has a great analysis on the Wikileaks fallout at the State Dept.

Money quote(s):

"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."

The above is without doubt the best two-paragraph explanation of a cable that I've ever seen.

Left out are the categories of cable which are, I believe, excluded from the Wikileaks breach, which are the relatively non-sexy cables having to do with official orders (such as travel or assignments, promotion lists, &tc.), law enforcement and consular-related communications which incorporated personally identifying information.

"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."

"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."

If no one is willing to talk to us, we're not going to be able to do much in the way of promoting mutual understanding. Or much of anything else.

"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."

This is huge. The impact of this simply can't be over-stated. No one can possibly believe their identities and the information they provide us will be held in confidence. We simply will no longer be trusted to pass information to the right ears and no further.

"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."

"(E)xperts 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."

Any cable-drafter already knows that the potential readership of any given cable is quite large. Potentially, anyone within (and in some case outwith) the State Dept. possessing the right accesses could become a reader, either today or next week, next month, or next year. Cables are forever, communications-of-record; if nothing else their contents will become summarized and encapsulated in reports which trickle ever upwards.

"Cables are both vehicles for instructions to our negotiating delegations and part of the record of our negotiations."

Nothing levels our side of the playing field quite so drastically as when our mail is being read, even long after the fact. Candor and plain-talking are essential or you're just spinning your wheels.

"Candor, creativity and “out of the box” views are appropriately sought – and needed – by decision makers. Thanks to WikiLeaks, cable-drafters are now seeing their candid words, thoughts, and analysis, all intended for internal consumption, splashed on the front pages of newspapers and circulated around the world on the internet. Concerned for perhaps the first time in their careers that they have damaged U.S. interests, at least some of these employees could be more cautious in the future."

Time and again I've instructed report-writers to tell the facts, what they know and how they know it, what they saw and heard, as distinct from what they think and deduce from it (but include that too, clearly differentiated) and let "higher" do the second-guessing from their position of access to a wider ranger of information. Don't self-adjudicate.

Mr. Witten concludes:

"For the foreseeable future, foreign officials and private persons will understandably be worried about whether their dialogues with the State Department will be secure. Some candor and critiques by our own professionals may go unwritten or held in narrow channels of distribution."

I must confess I've done this myself, pre-Wikileaks. Not writing everything I know or have heard about something, but passing the information (less the specific identity of a source) to "higher" through channels as secure (actually, in hindsight much more secure) as cable traffic but without the same paper trail. I thought I was just being paranoid about protecting my sources, but it's true what they say: Paranoia Is Its Own Reward.

It also deprives "higher" with the fuller appreciation of that information which knowing the actual source can provide.

re: "Should the Media Be Prosecuted for Espionage, Too?"

Kevin Jon Heller at Opinio Juris is a sharp cookie. I like the way he thinks.

Money quote(s):

"The New York Times, Der Spiegel, The Guardian, Le Monde, and El Pais — all are just as guilty of violating the Espionage Act as WikiLeaks. There is no “we redacted some of the documents” defense in the Act, and prosecuting a news organization after it has published documents does not create prior restraint problems. Moreover, given that those newspapers have a vastly wider readership than the WikiLeaks website, they have arguably harmed America’s national-security interests far more than WikiLeaks itself. (And let’s not forget, WikiLeaks did not steal the documents; it obtained them from the person who did. So there is no relevant difference between the newspapers and WikiLeaks in that regard; the “espionage” is simply one level removed with the newspapers.)"

re: "Latest Wikileaks Dump: Swan Song for the Diplomatic Cable?"

Peter Spiro at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") clearly understands the issues.

Money quote(s):

"(T)his will be a much bigger story than the previous Iraq and Afghanistan disclosures, mostly because there will be something here for everyone. I’m not sure that the State Department looks particularly bad, as Timothy Garten Ash explains. It shouldn’t be a revelation to anyone that diplomats sometimes do something that looks like spying. This is much more likely to cause scandals in foreign capitals than in the US (which is not to say that it won’t hurt US foreign policy interests — it will). What you will see are lots of examples of US diplomats executing their briefs, in most cases pretty well."

&

"It’s one thing to understand that your work will come to light 25 years hence, when you (and your interlocutors) will either be dead or retired, too old much to care; or else flattered to see your handiwork become the stuff of history. It’s another to have to worry about something being disclosed that might affect your ability to function in your next post (or whether you’ll get one at all)."

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Be sure to read the comments.

re: "Can the State Department Facebook?"

Peter Spiro at Opinio Juris ("a forum for informed discussion and lively debate about international law and international relations") has an interesting, and brief, post about the Department's use of Facebook.
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Hat tip to John Brown at Public Diplomacy Press and Blog Review, Version 2.0.