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.

If you are already in DC for the ASIL meetings and have some free time today (Wednesday), you might consider coming out to the edges of DC – to Washington College of Law, American University – for a conference sponsored by the ICRC, ASIL’s Lieber Society (the laws of armed conflict interest section), and the Center for Human Rights and Humanitarian Law at WCL.  The conference runs all day long, with a 12:30 keynote by Diane Orentlicher, longtime professor and advocate on human rights and most recently deputy for war crimes issues at the Department of State.  (I’ll be on a panel in the afternoon on cyber war and IHL.)  I should have posted on this ages ago, but if you’re interested go to the website and register; it’s not really far from the ASIL hotel and it is over by 3:30, in time to be back for the Grotius Lecture at the ASIL meetings.

Greg Miller has a fascinating front-page story in the Washington Post yesterday (Sunday; it appears to be behind a free registration wall) profiling “Roger,” the mysterious head of the Counterterrorism Center at the CIA, a key figure in the pursuit of Bin Laden, and a principal architect of the drones program. Here’s the money quote, borrowing from Lawfare:

Roger, which is the first name of his cover identity, may be the most consequential but least visible national security official in Washington — the principal architect of the CIA’s drone campaign and the leader of the hunt for Osama bin Laden. In many ways, he has also been the driving force of the Obama administration’s embrace of targeted killing as a centerpiece of its counterterrorism efforts.

Colleagues describe Roger as a collection of contradictions. A chain-smoker who spends countless hours on a treadmill. Notoriously surly yet able to win over enough support from subordinates and bosses to hold on to his job. He presides over a campaign that has killed thousands of Islamist militants and angered millions of Muslims, but he is himself a convert to Islam.

His defenders don’t even try to make him sound likable. Instead, they emphasize his operational talents, encyclopedic understanding of the enemy and tireless work ethic.

“Irascible is the nicest way I would describe him,” said a former high-ranking CIA official who supervised the counterterrorism chief. “But his range of experience and relationships have made him about as close to indispensable as you could think.”

That’s the title of a new paper in the Stanford Law Review by Columbia Law School’s Matthew Waxman (link is to SSRN).  One highly topical example of national security federalism is raised by the controversy over NYPD surveillance of various Muslim groups.  It is easy to view this issue in familiar terms of substantive balances or tradeoffs of security versus privacy or other Constitutional values – and seen in those terms, the natural solutions seem to lie in tightening and enforcing substantive restrictions and guidelines that govern police intelligence activities and investigations. Waxman’s new article is important for focusing instead on the broader structural and institutional issues – the federalism issues – at stake here, too:  What role should local police agencies play in terrorism prevention, and how should their cooperation be organized horizontally (among local police agencies) and vertically (between the federal and local governments)? How much discretion should state and local governments have in performing counterterrorism intelligence functions, and what are the dangers and opportunities in localized variation and tailoring?  (Below the fold, the abstract from SSRN.) (more…)

My book, Living With the UN: American Responsibilities and International Order, is now in stock and on-sale at the Hoover Institution Press website.  I have a copy in hand and I’m delighted to be holding it.  It’s not quite like holding your new baby – but for an inanimate object, it’s closer than you might have thought.  (Julian – feel free to weigh in here: I’m thinking having one’s new book in hand is kind of like holding one of those Japanese roboticized teddy bears for soothing the elderly with dementia, but maybe that’s just me.)

It will be a couple of weeks – April 17 – before it’s available through Amazon, Barnes & Noble, and other online sellers.  A Kindle edition will be released on April 17 as well.  Over the next couple of months, I will be talking about various themes in the book – UN-US relations, the nature of the UN, the different ways in which the US should engage (or not) with different parts and functions of the UN.  Julian will be doing the same with his and John Yoo’s provocative new book, Taming Globalization, so expect to hear a lot at OJ about themes in our books (we have, btw, covertly set up an algorithm in which the more OJ readers buy our books, the less we will talk about them!).  To start with, however, I wanted to go to a very different topic – this one about publishing, choosing a publisher, and why I chose the Hoover Institution Press.  This follows on some excellent guest posts by senior academic press editors in the past here at OJ – I’m really extending my take on those past discussions. I’m hoping that my thinking here will be useful to some OJ readers thinking about publishing.

This is a policy essay, not a “scholarly” book – it has about twenty footnotes for the whole thing, and a bibliography of secondary sources aimed to be accessible to those without a university research library or knowledge of how the UN online archives work.  My interest in this case is dissemination of the ideas in the book, not staking out academic turf.  So my general choices were three: One, find a commercial trade publisher, which seemed improbable given the subject matter, the way it is written, and my lack of trade press publishing in the past.  Two, find a university or academic press; this seemed like the obvious thing, and in fact there were several options that direction, notwithstanding that this is something like the opposite of the dense academic monograph.  Third, go with a think tank policy press in which case, given the history of the project and my affiliations, it would be Hoover.

The Hoover publishing folks have been marvelous.  They have been fabulous on production values, editing and copy editing, all the professional production elements.  They have been patient to a fault in waiting for the manuscript and letting me make later changes.  And they have excellent marketing staff and have a commitment to getting the book out there in a way that is only sometimes true of academic presses whose primary audiences are academics and university libraries.  But several academic presses are great in all these ways, too, so one has to ask, why consider a think tank press?  After all, isn’t a think tank press – even one associated with a university, like Hoover, and moreover a conservative think tank – taking a hit in academic prestige and respectability? (more…)

Jhesus-Maria, King of England, and you, Duke of Bedford, who call yourself regent of the Kingdom of France, you, Guillaume de la Poule, count of Suffort, Jean, sire of Talbot, and you, Thomas, sire of Scales, who call yourselves lieutenants of the Duke of Bedford, acknowledge the summons of the King of Heaven.  Render to the Maid here sent by God the King of Heaven, the keys of all the good towns which you have taken and violated in France.  She is here come by God’s will to reclaim the blood royal.  She is very ready to make peace, if you will acknowledge her to be right, provided that France you render, and pay for having held it.  And you, archers, companions of war, men-at-arms and others who are before the town of Orleans, go away into your own country, by God.  And if so be not done, expect news of the Maid who will come to see you shortly, to your very great injury.  King of England, if you do not so, I am chief-in-war and in whatever place I attain your people in France, I will make them quit it willy-nilly.  And if they will not obey, I will have them all slain; I am here sent by God, the King of Heaven, body for body, to drive you out of all France … (Written this Tuesday of Holy Week, March 22, 1429.)

Joan of Arc, the Maid of Orleans, sends a formal letter of summons to the English upon the siege of Orleans.  (I post this once a year on this date at all the places I blog.)

Alan Kaufman, a career national security lawyer and retired Navy JAG, has a fine review-essay of Stephen C. Neff’s Justice in Blue and Gray: A Legal History of the Civil War over at Lawfare.  Alan, who is a former student of mine a really long time ago at Harvard Law School as well as an occasional commenter here at OJ, observes in the essay how the law of the Civil War continues to reverberate in the US approach to its conflicts and counterterrorism today.  The book is excellent and likewise the essay reviewing it.

[T]he American Civil War, much like the armed conflicts in which the United States remains involved since the events of 9/11, required that national security strategy and decision making operate “in the dual spheres of criminal law and belligerency.”  Today’s questions of combatant status and the fate of unlawful belligerents, debates over executive powers, controversial habeas litigation, struggles over restraints on civil liberties, executive detentions, trials of civilians before military commissions, questions of whether and when to apply domestic criminal law or the international law of war, and, of course, when does the war end and what are the attendant legal consequences – all these questions figured into the law of the Civil War.

Justice in Blue and Gray, A Legal History of the Civil War, by the eminent historian of public international law and the law of war, Stephen C. Neff, is intended as “primarily a case study of the myriad ways in which law plays an important role in a crisis of giant political and military dimensions.”  This is a work of serious history by a leading legal historian, not a thinly-veiled parable or historical roman-a-clef for the present; it offers no direct connection to our world today, except by the reader’s own inferences.  Still, this legal history offers a not-so distant mirror.  Clear and elegant in its language, understandable to the layman as well as to the lawyer, Justice in Blue and Gray shows how law in war can be used – indeed, was used – to accomplish strategic and operational war fighting objectives in a vast and bloody conflict.  To use a word Neff does not use (and a somewhat controversial word in today’s parlance), this is a study of law in the Civil War as lawfare.  It would be something of an understatement to say that these understandings – both as icon from the past but also source of live legal precedent – are entirely in play in the most recent round of speeches by the Administration’s senior legal officials seeking to explain itself and its justifications in Guantanamo detention, trials, targeted killing, and the targeted killing of Americans.  The recent speeches by Attorney General Eric Holder, DOD General Counsel Jeh Johnson, DOS Legal Adviser Harold Koh, and others can profitably be read with this book to hand.

At the level of grand strategy, all lawfare is a battle for legitimacy.  To be sure, other objectives – operational and tactical — may flow from that source, but legitimacy is always the underlying and fundamental legal objective.  Thus, for the nascent Confederacy, a key initial strategic objective was recognition as a sovereign nation state, and the potentially decisive foreign alliances, particularly with Britain, that could flow from the establishment of that legitimacy.  For the Union, an initial strategic objective was to prevent any such recognition and concomitant legitimacy.  And so the first and richest chapter of Justice in Blue and Gray discusses the legal arguments surrounding the act of secession by the southern states.  Upon the answer to these fundamental legal questions would depend not only whether the secession and a fight either to maintain it by one or to stop it by the other could be held legitimate, but also whether what followed would be law enforcement or war – and thus what measure of violence could legitimately and lawfully be taken by either side to suppress or perfect the secession.

Yesterday was a busy day in International-Foreign-Relations-Law-Land, between the Eric Holder speech on national security and targeted killing at Northwestern University and the quite unexpected announcement that the Alien Tort Statute case of Kiobel will be re-argued in the Supreme Court. Let me add a comment from former DOS Legal Adviser John Bellinger at Lawfare:

The Court’s order may reflect that a majority or plurality of the justices would like to decide the case on the larger issue of whether the Alien Tort Statute even applies to torts committed in other countries, rather than on the narrower issue of corporate liability, and that other justices want to have more briefing on the issue, which was not addressed by the Second Circuit. As I noted in my post about last week’s oral argument, Justices Kennedy, Roberts, and Alito focused almost all of their questions on the diplomatic tensions and problems under international law caused by extraterritorial application of the ATS. This was also the issue that I addressed in my own amicus brief, and that was the focus of the amicus briefs of the Netherlands, Britain, and Germany ….

This development will put the Obama Administration in a difficult position. In its original amicus brief in support of the petitioners, the Administration argued in favor of corporate liability, but made no mention of the numerous diplomatic complaints about the ATS filed by other countries. Assuming that the Administration files a new amicus brief, it will face a dilemma. It will either have to argue against extraterritorial application, contrary to the position of human rights groups and undercutting its prior argument in favor of corporate liability. Or it will have to argue in favor of extraterritorial application of the ATS (at least in some circumstances), which is contrary to the position of many foreign governments and inconsistent with international law principles of jurisdiction. As three members of the International Court of Justice said in the Congo Arrest Warrant case, “[w]hile this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.” Moreover, the Obama Administration would have to reverse the arguments against extraterritorial application of the ATS made by the Bush Administration in its brief to the Supreme Court in 2008 in the Apartheid case (which the Solicitor General may be reluctant to do). This may be one reason why the Administration asked the Supreme Court not to address the issue of extraterritoriality in its original amicus brief.

One might also add that the amicus brief drafted by Jack Goldsmith in support of defendant corporation Shell seems to have had an effect; Goldsmith and his amicus brief were mentioned by name in the oral argument.  The Goldsmith brief was not primarily about extraterritoriality – it was much more about whether this was international law as such, or instead some kind of well-intentioned but nonetheless faux-international law committed to the hands of US courts.  (I have sometimes referred to it here at Opinio Juris as the “law of the hegemon” which US district courts have been persuaded by ATS plaintiffs’ lawyers, mistakenly  in my view, to regard as “international law.”)

This then combines with a general worry on the part of Justice Alito – but not he alone – that particularly the alien-to-alien cases taking place in an alien land simply have no reason to be in US courts, and that what little can be gleaned about the history and purpose of the statute does not support extraterritorial application, at least in the territory of another sovereign.  Piracy on the high seas, yes – and hence presumably the importance of the qualifier in the Court’s briefing instructions to address not extraterritoriality as such, but instead territory of another sovereign. (But see Jordan Paust and Eugene Kontorovich each commenting separately on the piracy issue, below.) (more…)

Below the fold is the written text of AG Eric Holder’s national security speech today at Northwestern University Law School.  It can be divided into two basic parts – detention and terrorist trial issues, and then targeted killing, including of a US citizen.  Bobby Chesney has initial thoughts over at Lawfare, but here is the text (I have not put it in block quotes as it is very lengthy):

(more…)

Bobby Chesney reports:

In late January, Daniel Klaidman reported that the administration was inclined to have Attorney General Holder give a major speech specifying additional details regarding the legal framework governing the use of lethal force against Anwar al-Awlaki. That time has now arrived. DOJ released a statement last week indicating that the AG will give a major address on national security at Northwestern Law (congrats to NW’s new dean–and my former colleague–Dan Rodriguez for landing this rather big fish) at 3:30 central time this Monday (the 5th). Once the text is available, we will certainly have a link to it, and commentary, here [at Lawfare].

I imagine us folks here at OJ will have some commentary on this as well.  Stay tuned.  Update: Also at Lawfare, Rick Pildes argues that government silence undermines terrorism policies – an observation that I agree with, and which I make in similar terms at Lawfare as part of a comment on the possible operational role of the CIA in Afghanistan once US combat forces are formally gone.  As Pildes says:

In an earlier post, I explained why the credibility and sustainability of government policies on terrorism require government to be more forthright about the bases and explanations for its actions in this arena. In that post, I argued that the general dynamic of terrorism policy requires government to accept greater responsibility to explain its actions: “government actors need to recognize that these kinds of coercive and less familiar powers will understandably and predictably trigger concerns in many quarters about whether what is being done is justified; whether the actions rest on sound reasons; and whether the government is using these powers in appropriately restrained ways, including showing appropriate respect for the interests and values that these policies sometimes override (that is, are these values being compromised no more than necessary to accomplish the government’s legitimate aims). If government is going to use these powers, yet maintain credibility, it needs to “give back” to these understandable concerns by being more forthcoming than has typically been the case.

In this post, I want to explain why the political economy of public discourse on terrorism policy provides a further reason government must recognize the need to engage with the public. Government today is in a constant battle for its own credibility. In the context of terrorism policies, numerous non-governmental organizations now exist (unlike many decades ago) whose essential purpose is to reflect distrust of government; to monitor government; and to criticize and challenge government, in part, as these groups would see it, to keep government honest. Precisely because these groups have no direct political power, one of their main roles is to seek to mobilize public opinion, including through a strong media presence.

But few if any countervailing non-governmental organizations are devoted, of course, to the opposite perspective — that is, to defending government action as their raison d’etre. And modern journalistic culture, too, is based on the view that the media needs to turn a constantly skeptical or demanding eye on government policies, particularly coercive and less familiar ones. Partisan political actors, too, have their own incentives to seek to undermine the credibility of their opponents in power, including with arguments alleging lawless action. In this larger context, government simply has to be an active, full, constant participant in order to defend and justify the credibility of its actions, including their legal basis. An occasional government spokesperson offering a few words in explanation is far from sufficient.

I put a related argument this way, referring to an AP story by Kim Dozier reporting government discussions (denied by the Pentagon) that, following the formal exit of US combat forces from Afghanistan, elite units of SEALS, Rangers, JSOC forces, Afghan proxy forces, etc., might be tasked under CIA command, in the way that the attack on Bin Laden was carried out by SEALS but under operational command of the CIA: (more…)

Sudan and newly-independent South Sudan have featured in many news stories over the last several years; a headline in today’s Washington Post, for example, reads “South Sudan: Sudan bombed 2 oil wells in South Sudan, is massing troops near disputed border.” Elections and the formation of a new state, the on-going saga of Sudan’s leaders and the International Criminal Court, and most recently the threat of more conflict have ensured attention from the international community and the US foreign policy and national security teams.

On March 9, Friday, 9-10:30 am, CSIS will host at its Washington DC offices a panel discussion on current events in Sudan and South Sudan by two of the leading academic and NGO experts: Loyola University (Los Angeles) anthropology professor Jok Madut Jok, who is also Undersecretary, Ministry of Culture and Heritage of his homeland, South Sudan; and John Ryle, executive director of the Rift Valley Institute, the leading NGO offering policy and academic expertise on the region, and professor of anthropology and human rights practice at Bard University.  The event  will be moderated by Richard Downie, Deputy Director of the CSIS Africa Program.  RSVP information below the fold. (more…)

… from this morning’s hearing:  Kiobel and Mohamad.  I would be curious as to readers’ prognostications of how the Justices will rule based on the oral arguments today. (Thanks for comments, interested in more.  For example, where did this extraterritoriality question suddenly materialize from and does it portend something different from what was originally thought?  You can also see John Bellinger’s take on the argument at Lawfare.)

Update: Reading the transcripts more carefully, as well as Chimene Keitner’s thoughtful post above, I recall that in some blog post somewhere a few year ago – my old blog, OJ, Volokh, I don’t even remember – I said that the problem of corporate liability and that ATS was that in order to get the international law predicate going, “you needed not just a what but a who.”  I assumed that this would be an issue in the oral argument; like lots of other folks, I didn’t anticipate that extraterritoriality would figure in any significant way.