What’s the difference between Julian Assange and the United States of America? One is a person and the other is fictional entity that exists only because of the acceptance of its citizens. Roger Alford, a law professor at Pepperdine Law School, probably knows this, but if so, you couldn’t tell from his post at Opinio Juris.
Alford plays a trick on readers, juxtaposing a quote from his lawyers about the disclosure of statements in the Swedish case against him with quotes from Julian Assange about the purposes and methods of Wikileaks. There is neither commentary nor discussion, but he posts this under a title that makes Alford’s point clear: Assange is a hypocrite.
At the Trial Warrior, Antonin Pribetic thoroughly, completely and irrefutably dissects the absurdity of Alford’s attack.
A false analogy does not a hypocrite make. The proper analogy is not between Wikileaks and Assange, but rather Wikileaks and the Swedish prosecutor’s office:
If some system A (Wikileaks) has some function X (transparency) and also some function Y (upholding the rule of law), and some system B (Swedish prosecutor’s office) has a function X′ corresponding to A’s (Wikileaks) function X (transparency), then the system B should also have a function Y′ , that is analogous to A’s function Y (upholding the rule of law).
There is a fundamental difference between Wikileaks publishing military secrets obtained from a third party and Assange’s lawyers objecting to disclosure of the unredacted (and untranslated) excerpts of the sexual assault complaints to the media. This is particularly egregious in light of the fact that Assange has not yet been formally charged in either Sweden or the U.K., while out on bail awaiting his extradition hearing.
Whether Assange is saint or sinner, and reasonable people may differ on that question, there can be no question about whether there is a societal interest in smearing an individual in any way relevant to disclosing governmental secrets.
The mechanics are no different than the routine reaction of the cops when they inadvertently gun down some poor schmuck on the street, and immediately run him to dredge up any wrong, real or imagined, in his past so that they can craft a lede about what a hideous human being he was, thus diminishing his worth to society and their culpability in his killing. It plays well in Peoria. Apparently, at Pepperdine as well.
It is unacceptable, however, to have a law professor engage in such a facially fallacious attack. He can think that Wikileaks is a horror, a terrible thing and a blight upon the Nation. He can hate Assange for founding Wikileaks. He can believe that this is the sort of conduct that makes it impossible for an exceptional country to conduct its business on behalf of Mom and apple pie.
What he cannot do is proffer a false comparison between the secrets of a government and confidences of an individual subject to prosecution. It legally unfair. More importantly, it’s intellectually dishonest.
In response to comments to his post, Alford fleshes out his position.
If Julian Assange were not a hypocrite, he would welcome this transparency, even though his own reputation is severely damaged. Of course, Assange has publicly endorsed government leaks at the cost of harm to others’ reputation–that’s just, in his words, “collateral damage.” As Assange told the New Yorker :
“[S]ome leaks risked harming innocent people—’collateral damage, if you will’—but that he could not weigh the importance of every detail in every document…. by releasing the information he would allow judgment to occur in the open.”
Apparently the loss of reputation is fine in the pursuit of total transparency, unless it is his own.
Under my best case scenario, Alford may be intellectually dishonest, but at least he knows it. His attempt to defend his position, however, takes that possibility off the table. The argument attempts to equate government transparency with individual transparency, and Alford inserts the word “total” before transparency in order to manufacture his strawman. This is too obvious, and too cheap, to ignore. Nobody makes such a flagrantly shabby argument unless they really believe it to be valid.
Alford has revealed far more about himself than about Assange in his post. In fact, he’s revealed nothing about Assange at all. But he has brought his own ability to reason into question. When levying a charge of hypocrisy, one should be awfully damn clear that there is merit to the claim and it can be supported. It need not be a perfect argument, or above reproach, but it clearly has to be sound.
It’s rare for a lawprof to go so far out on a limb as to call a person a hypocrite. They usually resort to their customary lingo, such as saying Assange is a less than admirable fellow, which is the lawprof equivalent of saying his the scum of the earth. Perhaps this is saved for responses to their fellow members of the Academy, so they won’t have to cross swords when the meet in the hallways. But Alford has come out swinging, call in Assange a hypocrite in his direct, frontal assault. Having done so, he bears the consequences.
There is nothing in Alford’s post that supports the proposition that personal transparency and governmental transparency are, or should be, the same. There is nothing to suggest that Julian Assange is a hypocrite. There is, however, much to suggest that Alford lacks the intellectual capacity to be allowed to teach students how to think like lawyers, or to be capable of distinguishing between sound arguments are logical fallacies.
Alford’s academic credibility is “breaking like the waves at Malibu.” Is that okay with Pepperdine?
Discover more from Simple Justice
Subscribe to get the latest posts sent to your email.
Scott,
Thanks for you post. I’ve responded to it here: [Edit. Note: Link removed as per rules.]
Roger Alford
Sorry Roger, but house rules are no links in comments. Feel free to respond here all you want. In the meantime, I’ve taken the liberty of copying your response here, so that others can see despite my deletion of your link:
Ironically, your sweeping yet unfounded assumption about my support of Assange is misplaced. I am not an unqualified supporter, as my earlier post about Assange reveal. But I am a huge supporter of sound argument, and an enemy of baseless accusation using strawman arguments to make a spurious point.
You complain that I am focused on the rights of the defendant to the exclusion of the harm caused by Assange’s disclosure to victims. Once again, your resort to hyperbole renders your complaint meritless. In the hierarchy of concerns, the deliberate disclosure of prosecution documents, the only purpose of which is to smear Assange and prejudice him in advance of his defense, trumps those who are named in government documents, and whose disclosure was not intended to cause them any personal harm but an outgrowth of governmental transparency, an entirely different purpose.
If Wikileaks disclosed documents for the purpose of harming individuals as part of a smear campaign, it would be a different story. But that isn’t Assange’s purpose, and that make it a critical distinction.
Scott,
That is your view as a criminal defense attorney. As someone who cares about Assange’s victims, I have little doubt that Assange is a hypocrite. You are debating the hierarchy of harm, I am focused on the insincerity of Assange. He proudly proclaims the merits of total government transparency, until he personally experiences the harm of his own theory.
Roger Alford
There seems to be a logical disconnect. You care about victims and therefore have little doubt that Assange is a hypocrite. You scare me.
You are still having remarkable difficulty distinguishing between governmental transparency and personal transparency. Let me try to explain this another way.
If a guy shoots and kills another guy on the streets of LA, he’s a murderer. If a guy shoots and kills another guy on the streets of Kandahar, he’s given a medal. It’s different when you pull the trigger on behalf of the government.
Have you taken even one international law course? So every soldier in war is a murderer? Nice. You are not worth my time. Sorry I will not respond further.
Roger Alford
How odd that you “read” my comment precisely the opposite of what it says. And they let you teach children?
Your criticism, and Antonin’s, of Alford’s overstatement is apt. His sneering at criminal defense lawyers is illuminating about his character.
But there is a kernel of an issue there. Unless I’ve missed it, Assange and his supporters (and I know it’s inaccurate to call you one) have not exactly taken a nuanced approach to whether the release of confidential information is in “the public interest.” Rather, unless I’ve missed it, they’ve taken a fairly simplistic and self-justifying approach that the fact the government is keeping something secret is a good indication that it ought to be public.
As you, Antonin, and I know, the government routinely leaks information to harm suspects and defendants. They do it to shape the story in the media, they do it to curry favor with the media, and they do it to taint the jury pool. They probably also do it to get money, attention, and laid.
I don’t get any sense that Assange has previously demonstrated a recognition that leaks are sometimes an instrument of government oppression rather than a weapon against them. Perhaps I’ve missed it.
However, some of the celebration of Assange now prevalent in some quarters (not here) does tend to obscure this: the fact that something was once non-public and now has been “leaked” does not establish that the “leak” is calculated to promote openness and oppose tyranny. As you know, police and prosecutors routinely leak information to
I agree completely, and cringe when people take an unduly simplistic approach to anything and everything leaked, as if good government (meaning the wonderful government of fairy tales) could function properly in a completely transparent environment.
Hey, Alford. great, logical argumentation. i’m taking my opinions and going home. What the hell kind of law professor are you? For the prosecution only? Snarkism is not a valid position. You don’t like what Assuange did. Fine. but tell me what laws he has broken. the law of public opinion? This pick and choose approach to law adn its enforcement scares the hell out of me. It’s either freedom of the press and speech or none at all. Btw, how incensed were you when Valarie Plame was outed? I guess I’ll never know, because if someone of Scott’s stature is not worth your time, then I know where I stand. just curious, is that the position you take with students who disagree with you? gee willikers, Captain Whizbang, what a great advertisement you are for Pepperpot U.
Marty, either he’s using his bizarre misapprehension that I suggested soldiers are murderers to justify sticking his head into his butt, or he’s just that flaming stupid and that big an intellectual coward.
Either way, the problem isn’t that he doesn’t like Assange or Wikileaks, but that he’s an academic fraud. How does someone like that get to be a lawprof?
I note with interest Prof Alford’s apparent instinct to attack those who disagree with him. That’s always a sign of class in a person.
I don’t know what Pepperdine is, I don’t live in the USA and I have absolutely no idea who this guy is but, even from here, it’s clear he’s spat the dummy because he knows his argument is easily holed.
On the internet we call people who make meritless provocative statements for the sake of getting a response trolls.
The reaction to my post has gotten overblown, which obviously reflects my failure to properly state my point. The entire point I was trying to express is that improper disclosure of government documents unfairly harms individuals. When I said I thought Assange was a hypocrite, what I meant to convey (which I clearly did not do a good job expressing), was that Assange should be concerned with the disclosure of government documents that harms individuals, just as he is now concerned with the harm that it is causing him. I condemn Assange for the harm he has caused to individuals by disclosing government documents and I condemn the disclosure of the police report that has harmed Assange’s reputation and will make it more difficult for Assange to get a fair trial.
I also apologize to Scott Greenfield for my dismissive reply at 12:06. That was inappropriate.
Roger Alford
Since when is hypocrisy a crime(though it should be). Hell, just about every church and political individual would be a convicted felon. Don’t like what he did, fine, but don’t put revlon on the pig and expect it to be anything other than a very pissed off pig.
Your dismissive reply doesn’t concern me in the least. Your reading comprehension and critical thinking skills, on the other hand, are deeply disturbing.
Stephen, Pepperdine is a university in Malibu, California that is a bastion for intellectually dishonest conservatives.