Author Archive for
Kenneth Anderson

Sir John Keegan, Ave Atque Vale

by Kenneth Anderson

For various family reasons, I have been mostly off-line during the last few months, but I could not let slip by the sad news of the passing of Sir John Keegan, the renowned military historian and author of many works that certainly shaped my thinking and, I would guess, that of many readers.  The Telegraph, for which he served as defense editor for many years, has an obituary here.  For my part, I exchanged occasional cordial letters and, later, emails with Keegan beginning in the early 1990s.  The discussion over all those years that most engaged us both began with a review Keegan wrote in the Times Literary Supplement in 1995 of a book on the laws of war by another intellectually towering figure in these fields, Sir Adam Roberts (the review is probably in the TLS archives, but I can’t find an open source link).  Keegan’s review was, as with everything he wrote, crisp, lucid, and elegant; although his reputation justly rests on his many books, I myself am drawn in a literary sense to his exquisitely written critical reviews in the TLS and elsewhere.

Keegan’s review of Adam Roberts’ book remained with me, and I quoted it in my own 1998 TLS review of Caroline Moorehead’s powerful history of the Red Cross movement, Dunant’s Dream: War, Switzerland, and the History of the Red Cross.  Keegan got in touch after my essay appeared to tell me that this notion of honor was far from being a throwaway point, but was in fact central to his view on the nature of the military professional and added, I’m pleased to say, that he embraced the passage in which his own comment is embedded.  Fifteen years later, the intellectual conversation around these topics is significantly different, of course – but not entirely:

The dream of an international culture of legality that has all the virtues of a settled and legitimate domestic legal order is the ancient dream of a deus ex machina. Faith in legality as the engine driving such adherence as exists to the laws of war seems to me, however, entirely misplaced; it is a fantasy tailor-made for lawyers, and especially for American lawyers. Lawyers believe the problem is one of enforcement, whereas in fact it is one of allegiance. Codifications of international law are a useful template for organizing the categories of a soldier’s duties. But, in the end, the culture relevant to respect for inter-national humanitarian law is not the culture of legality and the cult of lawyers, but instead it is the culture of the professional honour of soldiers, and what they are willing or not willing to do on the battlefield.

Which is why the profoundest remarks in some years about war and law were those written three years ago in this paper [TLS] by John Keegan. “The experience of land war in two world wars”, Adam Roberts observes in The Laws of War, the book Keegan is reviewing, “‘must necessarily raise a question as to whether formal legal codification is necessarily superior to notions of custom, honour, professional standards, and natural law’ in making for battlefield decencies.” Keegan answers simply, “There is no substitute for honour as a medium for enforcing decency on the battlefield, never has been, and never will be.” (TLS, November 24, 1995.) Despite the ICRC’s affection for international legalism, it surely knows that Keegan is right in a way that other human rights and humanitarian organizations do not, precisely because it has lived so long with the dilemmas that other organizations avoid. Should it ever cease to comprehend this, it will also cease to be an organization with a unique mission, legitimacy and insight – the organization it has always claimed to be – and become instead, in David Rieff’s words, “just another NGO”. The loss would be profound.

The Arms Treaty Negotiations and the Problems of Consensus for a Hegemonic Player

by Kenneth Anderson

OJ’s esteemed commenter Martin Holterman asks in the comments to my earlier post about the Arms Treaty negotiation underway in New York what the point of negotiating a treaty is, if you assert in advance (and indeed attach to the treaty) that there cannot be any circumstances in which you might violate it.  He asks this with reference to a letter sent Monday from Congressional lawmakers (some 130 of them) to the Obama administration.  The short answer is that if those are your objections, then you really ought to stay out of the process, which is certainly my view.  (We should add that this has been a fairly standard procedure for the US in certain kinds of treaty negotiations where it is clear that Constitutional standards are implicated.)  But this raises some general issues regarding the nature of consensus negotiations, which I take up in this post, using the arms treaty negotiations as a backdrop and drawing on Chapter 2 of my new book, Living With the UN.

The Bush administration, as Duncan’s earlier post observed, opposed the treaty negotiation process and instead favored strengthening national export regimes.  I thought it was a better way to deal with the issues of arms trade as such; I always thought it a mistake for the Obama administration in 2009 to agree to engage in the process at all.  One reason the Obama administration decided to join treaty negotiations, however, is owed to the early Obama administration’s overall desire to engage multilaterally, especially through the UN and international organizations. It’s part of this administration’s general patten of multilateral engagement – with the Human Rights Council, most controversially, but lots of other exercises in “values” processes at the UN as well.  I’m not alone in detecting a tension inside the (first two years anyway) Obama administration between its liberal internationalists, who took multilateral engagement seriously as its own value, on the one hand, and what I’ve sometimes called its “New Liberal Realists,” on the other.

The liberal internationalists of the administration’s first two years or so thought the “values” exercises meant something for their own sake and so should be undertaken.  The New Liberal Realists, by contrast, seemed to have taken the view that if the US could gain points by engaging in values processes, fine, because it didn’t finally matter.  Being mere ideological exercises in words, they didn’t actually mean anything in tough realist terms.  Talk is cheap and you can always walk away or come up with some covering interpretation.  In a (yes, provocatively titled) chapter in my book, “Disengage and Obstruct,” however, I argue that these exercises in supposedly cost-free multilateral engagement around values issues are rarely cost-free for a hegemonic player.  Talk might be cheap but it’s not without a price, because it’s an accumulating, even if imperfect and weak, proxy for whether the hegemon means other things it says.

The New Liberal Realist claim amounts to saying that no one takes the “values” talk seriously or as a proxy for “realist” matters of security, hard core economic issues, etc.  I would respond that this misunderstands the peculiar nature of hegemony, and the way in which it transcends realism by using “values” issues to transform raw power into authority and finally hegemonic legitimacy. (Beyond that, I won’t try to define hegemony here.)  Realists, we can say in passing, are often not conceptually equipped to understand legitimacy save as on a narrow, transactional, marginal basis – blinders which makes it hard to understand the persistence of hegemony, which depends upon a particular relationship between interests and values, power and authority, and finally legitimacy.   (more…)

US Lawmakers Send Letter to Obama Administration Warning on Arms Treaty Negotiations

by Kenneth Anderson

The Hill (a DC newspaper covering US Congress and government) reports that some 130 US Congresspeople have sent a letter to the Obama administration objecting to various aspects of the just-started UN Arms Treaty negotiations in New York and warning the administration against what the lawmakers regard as infringements on US citizen gun rights or US sovereignty.  I thought I would add it as a new entry following Duncan’s excellent summary and links of the treaty negotiations; the text of the letter is here.  In this post, I summarize the letter’s objections, and in a second post, I’ll add a broader discussion of the problems of consensus international negotiations for the US, based in part around part of my book on US-UN relations.

The letter’s main concerns are (I’m summarizing a bit loosely here for clarity):

  • No dilution of US Constitutional protections under the 2nd Amendment (or other existing US laws protecting gun rights, whether at the state or federal level);
  • recognition of an individual right of personal self-defense;
  • no dilution of what the signatories regard as US national security and foreign policy interests, particularly transfers to Taiwan and Israel;
  • no treaty recognition of terrorist right to weapons, including through the language of “resistance to foreign occupation”;
  • no creation or recognition of jurisdiction of the ICC over treaty signatories;
  • no damage to US economic interests through such vehicles as new regulatory regimes imposing compliance burdens on businesses or other mechanisms, direct or indirect, or export control regimes different from what the US does or would otherwise do;
  • reservations and understandings, should the US join the treaty, that the US is already in compliance with the treaty and that no changes to US policy or procedure are required, that the treaty cannot alter the Bill of Rights or the allocation of power in the US federal system, and that the treaty cannot shift authority from US agencies to any international body;
  • asserts (but also demands recognition) that the treaty is non-self-executing and requires legislation to implement; and
  • demands that should any of the above legal-policy requirements not go the US’s way in negotiations (which would seem, well, pretty likely), the US should “break consensus and reject the treaty.”

That’s quite a list.  I’m perhaps not the most neutral person to comment here, since I agree with this list in its entirety and would probably add a few more just to make sure a treaty could not turn into leverage for US domestic gun control advocates.  After all, the history of this international effort has always been the marriage (sometimes sotto voce, sometimes not) of arms transfer controls particularly into armed conflicts (which, broadly speaking and with some important exceptions, I’ve favored ever since the argument came up when I headed the Human Rights Watch Arms Division long ago) – and creating international legal devices to press for domestic arms control and especially handgun bans (which to say I don’t favor is something of an understatement).  I’ll leave the commentary on the substance of the positions above to another discussion – though there are interesting issues here, such as the claim of a personal right of self-defense (the letter is not clear whether it means it as a stand-alone international human right or instead as recognition of or deference to such rights as exist in domestic legal systems). But the letter is a pretty useful summary of the general objections that US domestic treaty opponents have to it – expressed as concerns, but let’s speak plainly, objections.

The UN’s Alphabet Soup of Entities

by Kenneth Anderson

(Amended:  Kevin suggests in the comments that this is a cheap shot at the UN, and after sleeping on it, I agree.  I’ve amended it, but in case anyone wants to see what Kevin is objecting to – and I agree he’s right that it’s unnecessary sarcasm – the original is below the fold.  I’ve amended the title as well.)

Economist blogger Emma Bond quotes an email (including the above post title) mentioning a UN entity with the following title:

Open-ended Ad Hoc Working Group of the General Assembly on the Integrated and Coordinated Implementation of and Follow-up to the Major United Nations Conferences and Summits in the Economic and Social Fields

(H/T Hayes Brown and his Water’s Edge blog.)  The email is somewhat sarcastic about the oft-remarked alphabet soup of UN agencies.  But it points to another feature of the UN, often remarked upon by managerial experts at the UN itself, viz., that though there are many mechanisms for creating agencies and entities, it has far fewer mechanisms for eliminating them once created, whether because the original purpose has gone away, the functions performed by one actor duplicate those of another or have been absorbed, or because whether the function is useful or not, it should be eliminated to free up resources for other things.  While this is generally true of national governments, particularly large ones, the highly diffuse nature of the UN and its institutions, along with many vested interests – some national and some internal to the UN itself – makes the problem more intractable.

It is not an irrelevant question at the moment, however, given the increasing pressures on the UN budget (rather budgets, given that peacekeeping, in particular, is larger than the mandated UN budget) with developed world governments in difficult times.  Budget negotiations over the general budget were strained this cycle, as even the Europeans, for obvious reasons, pressed to hold down budgets – but at the same time budgets have been creeping up.  Budget negotiations over the peacekeeping budget were just wrapped up a few days ago, and likewise showed the strain of increased pressure to do more peacekeeping – particularly given that it is widely perceived as a useful and fairly effective activity, despite the problems with procurement corruption scandals, sexual abuses by peacekeeping forces, and other questions of operations management – at a time when developed countries are under fiscal pressures.

One suggestion I make in my book, Living with the UN – one that is also frequently heard among UN efficiency experts inside the organization or hired to consult to it – is that the UN simply ratchet down the number of conferences, international meetings, roadshow events taking place in places other than the UN’s existing centers.  They are expensive and it is unclear what the long run value is as compared to simply undertaking the activity in existing venues, and often using existing processes.  I suggest that the US adopt this as policy and simply announce that it is going for a moratorium on international conferences in favor of undertaking the actual negotiations giving rise to the conference in the venues and processes already existing.  Pretty obviously, this is not a suggestion that is going anywhere, but it points to the difficulties in forcing highly diffuse UN agencies to have to make internal tradeoffs over scarce internal resources.

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Book Discussion “Outsourcing War and Peace”: The Efficient Regulation of Private Security Contractors

by Kenneth Anderson

[This is the third day in our discussion of Professor Dickinson’s book Outsourcing War and Peace: Preserving Public Values in a World of Privatized Foreign Affairs. Links to the related posts can be found below.]

The dean-emeritus of US government law of war lawyers, Hays Parks, spoke in passing a year ago about private security contractors and the law of war at a conference in honor of Michael Walzer.  Parks noted that for better or worse there was no going back to a world in which even the use of force, let alone other matters, was confined to formal government military forces – that bridge had been crossed with such things as State Department security and much else.  But he expressed concern with the way in which it had come about, with insufficient attention to the issues of accountability.  And also regret, from the standpoint of the laws of war, that certain of these functions had ever been allowed to be privatized.

Because, as Parks says, the bridge has been crossed, I’m fundamentally in agreement with the concerns that Laura Dickinson’s splendid book raises about accountability.  Point being that one can be a government laws of war lawyer and share these concerns, as Parks does; and equally share concerns for establishing mechanisms that lie within the realistic possibilities of legal policy for addressing the accountability concerns.  Contractual mechanisms are a very important category of that, and the questions raised below are less about principle than cautions about the limits of contractual mechanisms.  Like Chris and several other OJers, my teaching day-job is in business, finance, contracts, and law and economics, and I also draw here on experience as the board chair and general counsel for several NGOs engaged in much cross border development finance and related contracting – microcredit and all that.  So let me run through a standard set of law and economics issues that might arise in these attempts to regulate via contract:

1. Might contract mechanisms under-deter or over-deter the use of private contractors for particular functions (or under some circumstances, might they do both)?  One of the things I most like about Dickinson’s nuanced approach to the possibilities and limits of contracting mechanisms is the awareness that contract enforcement in our civil court system is not well suited to the kinds of situations that would most concern us in the situation of private contractors, for example, using force in some foreign situation of high insecurity if not straight up conflict.  This is so, I think, for contract claims as well as tort claims.  For example, the possibility of wrongful death of a foreign national in some not-exactly-quiet-not-quite-war-zone by a security contractor is not very well suited to the social setting in which the US civil litigation system of wrongful death has meaning – which is a settled domestic legal system in which the participants all share certain expectations about what is okay and not okay in the circumstances.  Moreover, much of that settled, legitimate, domestic system has to do with situations of risk in which we as a society accept that there are crucial social benefits that lead us to accept risks to life and limb, even ones that implicate wrongfulness.

I am skeptical that those shared social assumptions, which deeply inform and legitimate our domestic civil legal system, can be applied well in all these other situations.  I doubt that the adjudicators think they can do so, either, even if tasked to do so.  The tendency is either to hold contractors to a stricter standard than one might think is efficient to the ends – ends, however, which in quasi-war zones are themselves contested – for which some modicum of force is justified.  In that case, contractors will be over-deterred once they understand the costs they must internalize.  Or else the adjudicatory system, concerned that it is being asked to apply purely domestic standards to highly contingent and fundamentally different conditions of conflict, will excuse too much, whether overtly or indirectly, for fear of penalizing unfairly something where command and control, and ultimately accountability, ought to have rested with the government agency, not the contractor. (more…)

Law and Ethics for Robot Soldiers

by Kenneth Anderson

Lethal autonomous weapons can be approached from two directions.  One is to look from the front-end – starting from where technology stands today, forward across the evolution of the technology, but focused on the incremental changes as and how they occur, and especially how they are occurring now.  The other is to imagine the end-state – the necessarily speculative and sometimes pure sci-fi “robot soldiers” of this post’s title – and look backwards to the present.  Starting with the hypothetical technological end-point – a genuinely “autonomous,” decision-making robot weapon, rather than merely a highly “automated” one – the basic regulatory issue is, what tests of law and ethics would an autonomous weapon have to pass in order to be a lawful system, starting with the fundamental law of war principles, distinction and proportionality?  What would such a weapon be and how would it have to operate to satisfy those tests?

This is an important conceptual exercise as technological innovators imagine and work toward autonomy in many different robotic applications, in which weapons technology is only one line of inquiry.  Imagining the technological end-point as law and ethics means, more or less,  hypothesizing what we might call the “ethical Turing Test” for a robot soldier:  What must it be able to do, and how must it be able to behave, in order to make it indistinguishable for its morally ideal human counterpart?  The idealized conceptualization of the ethically defensible autonomous weapon forces us to ask questions today about fundamental issues – who or what is accountable, for example, or how does one turn proportionality judgments into an algorithm?  Might a system in which lethal decisions are made entirely by machine, with no human in the firing loop, violate some fundamental moral principle?  All these and more are important questions.  The problem in starting with them, however, is that the technology driving toward autonomous weapons is proceeding in little tiny steps (and some important critics, their enthusiasm tempered by earlier promises of artificial intelligence that failed, question whether the tiny little steps can ever get to genuine autonomy) – not gigantic ones that immediately implicate these fundamental questions of full autonomy.

Indeed, the systems being automated first are frequently not the weapons themselves, but instead other parts of the system.  But they might eventually carry the weapons in train.  Thus, for example, as fighter aircraft become increasingly automated in how they are flown – in order to compete with enemy aircraft also becoming more automated – eventually important parts of the flight functions operate faster than humans can.  In that case, however, it looks irresistible to automate, if not make fully autonomous, the weapons systems, because they have to be integrated with the whole aircraft and all its systems.  We didn’t start out intending to automate the weapons – but we wound up there because the weapons are part of a whole aircraft system.

These facts about how technology of automation is evolving are important for questions of regulating and assessing the legality of new weapons systems.  In effect, they shift the focus away from imagining the fully autonomous robot soldier and the legal and ethical tests it would have to meet to be lawful – back to the front end, the margin of evolving technology today.  The bit-by-bit evolution of the technology urges a gradualist approach to regulation; incremental advances in automation of systems that have implications for weapons need to be considered from a regulatory standpoint that is itself gradualist and able to adapt to incremental innovation.  So, Matthew Waxman and I are pleased to announce a new short paper on this topic, Law and Ethics for Robot Soldiers, which takes as its premise the need to think incrementally about the regulation of evolving automation.

The essay’s takeaway on regulation is ultimately a modest one – a quite traditional (at least from the US government’s long-term perspective) approach to weapons regulation.  Grand treaties seem to us unlikely to be suitable to incremental technological change, particularly as they might seek to imagine a technological end-state that might come about as anticipated, but might develop in some quite unexpected way.  Sweeping and categorical pronouncements can re-state fundamental principles of the laws of war, but they are unlikely to be very useful in addressing the highly specific and contingent facts of particular systems undergoing automation.

We urge, instead, a gradually evolving pattern of practices of the states developing such systems and, as part of the process of  legal review of weapons systems, development through reasoned articulation of how and why highly particular, technically detailed weapons systems meet fundamental legal standards.  In effect, this proposes that states develop bodies of evolving state practice – sometimes agreeing with other states and their practices, but likely other times disagreeing.  This seems to us the most suitable means for developing legal standards for the long term to address evolving weapons technology.  Abstract below the fold.

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Tiembla, Che!

by Kenneth Anderson

I don’t actually mean to express an editorial view here – my views on the role of social media, I’ve decided, are too mixed up for me to write a coherent post.  But I did think this was funny.  Thanks to my friend and colleague Juan Mendez and his … FB page!

Links List at Lawfare of US General Counsel Speeches on Targeted Killing, Hypothetical Drone Programs, and Related National Security Law

by Kenneth Anderson

In case anyone finds it useful, over at Lawfare I have posted up links all in one place to the leading speeches by the US government’s senior national security lawyers on targeted killing, hypothetical drone programs, covert action, and related national security law issues – Harold Koh (DOS), Jeh Johnson (DOD), Eric Holder (DOJ), Stephen Preston (CIA) – and one by non-lawyer but senior counterterrorism advisor John Brennan.  Plus a blog post by Harold Koh defending the legality of the US raid against Bin Laden at … OJ!

Sudan-South Sudan War, and the Limits of the Coase Theorem in International Law

by Kenneth Anderson

It’s always fun to find new ways to apply the Coase Theorem, particularly in situations of international relations and law.  So, we’ve seen it raised as a way of talking about bribing Libyan generals not to fight, how to avoid war over conflicting economic claims in the South China Sea, and lots of other situations.  There’s something useful about seeing how Coasean logic might apply, even far afield of conventional law and economics.  But it’s also worth noting that some situations in which the Coase Theorem ought most easily to apply in real life – where, at bottom, it’s just about money – things don’t work as one might have hoped.

Thus, the rapidly heating up war between Sudan and South Sudan.  It is about oil, which is to say, for the two regimes it is about the money – with oil production being the only thing keeping each regime afloat.  In that sense, there’s a strong common interest that should allow party bargaining.  But the Coase Theorem requires as a condition to bargain that the parties have clear legal entitlements and liabilities in order to provide a reference framework for bargaining.  One might have thought that the international settlement that brought about the then-peaceful separation of South Sudan from Sudan would therefore have insisted on clear legal entitlements to the oil fields, production facilities, transport of oil, in the interests of both parties.  Unfortunately it left all this open, along with the final question of the borders.

With no clear legal entitlement – let alone a way to enforce it short of using force – there is no clear basis for bargaining, even when there is a common value of money via oil.  Clear titles would then have provided a basis for prior bargaining over who would get what in the division of payoffs.  Moreover, each party would presumably have seen that the transaction costs involved in war – to deny the other any entitlement to which it might lay claim by destroying the ability to exploit the resource at all – would far exceed the benefits even of winning.  Unfortunately, it is not so far turning out that way; the legal entitlements themselves are the object of the war:

[R]ather than sparking an all-out military confrontation, each side’s aim may now be to target one another’s oil facilities and wait for their opponent to crumble under armed insurgencies, popular unrest and fuel shortages. The two countries have already driven their economies to the brink of implosion since the South split away, cleaving the vital oil industry in two. Squabbling over oil payments and border fighting has withered combined crude output – previously the main source of foreign currency and state revenues for both countries – from around 500,000 barrels a day before partition to just over a tenth of that. Food prices are soaring on both sides of the border and currencies reeling as officials scramble to make up for the sudden loss of revenues in countries already reeling from years of war, mismanagement and U.S. trade sanctions.

But despite their weaknesses, both sides have consistently reckoned they have the upper hand on their foe, partly explaining why fighting has escalated despite the obvious fact that neither side can actually afford to fight a war … ”Khartoum is fighting for its survival,” said Peter Bashir Gbandi, a deputy for the ruling Sudan People’s Liberation Movement (SPLM) in the South’s national assembly, during an emotional Juba panel debate packed with bellicose comments and broadcast live on radio …. many in the South have predicted Sudan’s President Omar Hassan al-Bashir, in power since a 1989 coup, will soon meet the same fate as leaders in neighbouring Egypt and Libya.

If the South can hold out a few months longer, the reasoning goes, Sudan’s people will surely overthrow their government and replace it with a regime more receptive to Juba’s demands. Khartoum, on the other hand, sees a good chance the South – already hit by domestic rebellions, horribly violent cattle raiding and widespread poverty – will soon run out of money and descend into ungovernable chaos.  The result is what Harry Verhoeven, a University of Oxford researcher who has studied Sudan extensively, calls a “war of attrition” in which both sides wait for the other to crumble internally or run out of the funds and fuel needed to wage war.

As background to Sudan and South Sudan, I recommend The Sudan Handbook, put out by scholars of the Rift Valley Institute (of which I am a senior fellow) – reviewed here by Tom Porteous of Human Rights Watch.

Daniel Klaidman Comments on CIA General Counsel Speech

by Kenneth Anderson

Daniel Klaidman, the journalist whose June 2012 book “Kill or Capture: The War on Terror and the Soul of the Obama Presidency” looks to be a must-read, has sent in a guest post to Lawfare discussing how the Stephen Preston speech came about and a bit of the inside maneuvering around the succession of speeches by Eric Holder, Harold Koh, Jeh Johnson, John Brennan, and now Stephen Preston.  (We should not neglect Harold Koh’s second statement, either – a guest post here at OJ.)

What is not widely knows is that Preston, a self-effacing lawyer with something of a patrician air, played a key behind-the-scenes role in pushing for the Obama administration to go public. The CIA was opposed to the more expansive disclosures advocated by Koh.  It did not want any mention of Awlaki or the kill operation, which was carried out under the agency’s covert drone program.  But Preston, along with the Pentagon’s Johnson and Koh, were the primary instigators for approving the more narrowly drawn speech that Holder ultimately gave in April.  Preston, who’d joined the CIA at the outset of the Obama administration, weighed in strongly with his new boss, David Petraeus.  The proposal gained serious momentum at a November, 2011 meeting of President Obama’s top national security advisers, when Petraeus forcefully backed the idea.  But then the initiative languished in the White House for a period of months.  With Preston’s encouragement, Petraeus continued to push for final White House approval of the speech, which came in late January.

(I’ve said that I will finally find a moment to comment on this speech, but it won’t be today, as I’m drafting final exams.)

CIA General Counsel Speech at Harvard Law School

by Kenneth Anderson

I will post analytically about this when I get a moment, but the General Counsel to the CIA, Stephen Preston, delivered an address today at Harvard Law School on the CIA and the Rule of Law.  Lawfare has posted up the full text, but here is a bit of the introduction.  I’ll come back to comment for real later, but I want to commend Mr. Preston for having looking for ways in which the senior lawyer(s) of the Agency can say something publicly about their work and the legal framework in which they approach things that are sometimes genuinely secret, sometimes plausibly, implausibly or, as I mischievously remarked in a panel last week, “preposterously plausible.”

There are reasons for these gradations – particularly, consent for US operations in a country might well be secret and subject to some level of deniability.  But they make it difficult for CIA officials and lawyers even to acknowledge the topics in the abstract.  There will be lots of disagreement, no doubt, about what can or should be made public by executive branch lawyers, whether through DOJ, CIA, DOD, DOS, or other agencies – but I would like to commend Mr. Preston for seeking to find ways to address these issues, to the extent that he and others in the executive believe they can or should do so publicly. (more…)

Inter-American Court of Human Rights Recognizes Discrimination on Basis of Sexual Orientation

by Kenneth Anderson

The Inter-American Court of Human Rights for the first time has recognized unlawful discrimination on the basis of sexual orientation, in a decision released two weeks ago, Atala v. Chile (here is the decision, in Spanish).  Congratulations to Macarena Saez, a Chilean lawyer who teaches at my school (Washington College of Law, American University), for leading a team of public interest lawyers to achieve this decision.  As WCL’s associate dean, Mary Clark, summarizes:

[T]he Atala v. Chile decision marks the first time that the Inter American Court has recognized discrimination on the basis of sexual orientation. This case began in 2004 when the Chilean Supreme Court denied Judge Karen Atala the custody of her three minor children because she was living with her lesbian partner. Macarena and her team of attorneys from Public Liberties (an association of Chilean attorneys) took the case to the Inter American Commission of Human Rights and, last year, the case made it to the Inter American Court of Human Rights. Macarena argued the case before both the Commission and the Court.

It was a long battle, but the case has come to a very successful end, with a decision that declares sexual orientation a condition protected by the American Convention on Human Rights. The decision also declares that all individuals regardless of sexual orientation enjoy the right to family. Finally, it declares that the best interest of the child cannot be used as an excuse to discriminate on the basis of sexual orientation.