How Ideas Get Inverted

By Benjamin Wittes
Friday, December 17, 2010, 5:39 PM

Here's a little cautionary tale about life in the information anarchy in which we all exist today. It is, I suspect, a metaphor for something, though I'm not sure what. I pass it on as it may amuse some readers as much as it amused me.

The other day, I posted this set of musings in response to a thoughtful note from Tom Malinowski of Human Rights Watch. I had no doubt when I wrote the passage that follows that I was conceding the validity of a point that Tom had made--to wit, that it is probably a bad idea (in addition to the other problems I had earlier raised with the statute) to have no jurisdictional limitations on the Espionage Act. While the absence of such limitations may allow prosecutions of people like Julian Assange (who is not an American and not operating in the United States), China or Iran might use the same principle to criminalize American reporting on matters embarrassing to them. In other words, I was conceding the validity of an argument against American exceptionalism in this instance and suggesting that we should probably not behave internationally in a manner in which we would not want other countries behaving. Here is what I wrote:

Tom is right that this statute has a nuance that makes one pause before treating it as just another extraterritorial application of American law. That nuance is that the entire moral force of a law like this flows from some notion that the person violating it had some obligation to protect the secrets in question. This notion is why we have a dramatically higher comfort level with prosecuting leakers (who promised to protect classified information) than we do with prosecuting secondary transmitters (who did not make any such promise). When we impose liability on secondary transmitters, including the press, we are essentially saying that their duty as Americans or people otherwise subject to this country’s laws conveys some obligation to protect some information some of the time. But Assange does not even meet this more attenuated standard. And I’m not sure I know by what logic of reason–rather than simple power–the United States Congress can obligate him to keep the State Department’s secrets for it.

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.

All of which is to say that I am tentatively persuaded that some jurisdictional limitation is probably appropriate–at least in application, if not in the statute itself. I’m not sure what it would look like, but I suspect that it would probably get Assange off the hook.

Rather to my surprise, over at Opinion Juris, Kevin Jon Heller didn't read this as an argument against American exceptionalism. He read it, focusing almost entirely on my expressed comfort level with undermining authoritarianism, as follows:

This is American exceptionalism in full bloom. Getting Chinese intelligence sources killed is fine.  Destroying the ability of China to engage in diplomacy is fine.  Not allowing China to prosecute those who undermine its national security is fine.  Hypocritical and awkward, to be sure.  But fine.  Because China is an authoritarian state, while America is a democracy.

I could offer a substantive critique of this position, but why bother?  If you believe that America is a shining beacon of freedom that should not be governed by the same rules that apply to the other 192 sovereign states in the world--or at least to those that don’t qualify on the Wittes scale as “democracies”--having a discussion about international law (or, for that matter, about any other kind of law) is completely pointless.

I don’t mean to pick on Wittes, who at least is willing to acknowledge that the double-standard means that Assange should probably be let off the hook for publishing American secrets.  But statements like these need to be highlighted, because they reveal precisely the kind of uncritical celebration of American power that has led--and, left unchecked, will continue to lead--to the worst excesses of the war on terror.

This was puzzling enough, and I'm still not sure I understand what Kevin found objectionable in what I wrote. But then the matter took a turn for the bizarre.

Along came Glenn Greenwald, a man for whom nuance and complexity--and apparently meaning--are mere inconveniences on the road to strong rhetoric. In a tweet the other day, he condensed Kevin's post as follows: "Benjamin Wittes: The face of self-absorbed American exceptionalism:" Greenwald's dittoheads--of whom there are apparently a great many--proceeded to retweet this a lot. And thus did a post intended to concede a point in a cordial and respectful argument come to convey its precise opposite in the context of an ad hominem insult.

As I say, it's a metaphor for something.

Happy Friday.