Author: Kenneth Anderson

Washington University Law School Debate Over Drones and Targeted Killing

Today at noon, the Whitney R. Harris World Law Institute at Washington University Law School is holding a debate on targeted killing using drone aircraft.  It features Notre Dame's Mary Ellen O'Connell and yours truly, and moderated by Minnesota Public Radio's Matt Sepic.  Mary Ellen and I each hold strong views on this topic, of course, and I am greatly...

Juan Mendez Appointed UN Special Rapporteur on Torture

Congratulations to my old friend (and currently WCL colleague) Juan Mendez on his appointment as UN special rapporteur on torture.  Professor Mendez has a long and distinguished record of service and achievement in the human rights field, including heading Americas Watch at Human Rights Watch for many years, a term as president of the Interamerican Commission on Human Rights, a...

Drones as Force Protection in AfPak, and the Dream of Drones as Strategic Air Power

Adam Entous, Julan E. Barnes, and Siobhan Gorman have an outstanding piece of national security reporting on the front page of the weekend Wall Street Journal, "CIA Escalates Campaign in Pakistan: Pentagon Diverts Drones to Afghanistan to Bolster Campaign Next Door." This is a fine piece of journalism that integrates reporting from AfPak and Washington to present findings that are new to the public, and more than merely a deliberate leak to a leading reporter from a government official or a magazine story rather than hard news.  My congrats to what is emerging as a leading national security affairs reporting team at the news pages of the Journal.  (Update: Here is Greg Miller's account in the Washington Post, Sunday, front page.) (Note: I've made some lengthy revisions and additions to this post.  Also, I’m not so sure that the contents of this post count as international law, and I’m not sure that our international law readership especially cares about Anderson’s views on strategy, but I decided I should cross-post it from Volokh.  The link, if any, to law is that although we are used to analyzing things like drone attacks from the standpoint of the law of targeted killing and other legal categories, at least once in a while it might help to step back and consider the strategic categories first, and then work our way to the law.) September 2010 saw another sharp uptick in the number of drone attack missions in Pakistan.  The question behind the raw numbers is what strategic purpose they aim at.  One strategic mission of drone missions in Pakistan is counterterrorism aimed at Al Qaeda leadership.  This uptick in September 2010 points to a quite distinct function - rather than counterterrorism as its own mission, the purpose is, as article says in a telling quote, "force protection" for the US counterinsurgency troops in Afghanistan.  The articles details an increasing impatience of the US military and political leadership with Pakistan's government, and an increased willingness both to strike overtly using NATO military assets quite openly across the border, as happened in the last week, as well as to use CIA Predator attacks in the border regions. (Added: Moreover, the "force protection" use of drones described in these articles is distinct from stillanother strategic use of drones, one recounted in earlier articles in the last two weeks, talking about their use to disrupt the planning of attacks against European targets by groups such as the Haqqanis, regional groups thought to be seeking to use people with European or American passports to strike from Pakistan against Western targets; Mumbai shifted further west, so to speak.  As Woodward quotes someone in his new book, "Mumbai changed everything."  It is because of these overlapping but also separate and shifting roles for drones that it seems to me worthwhile to analytically distinguish them, as I do below.) But the CIA attacks are now on safe havens for Taliban who are part of the fight in Afghanistan but taking refuge in Pakistan.  Rather than simply a raiding strategy against terrorist leadership in Pakistan as an exercise in counterterrorism, it is now a raiding strategy against the safe havens as part of the Afghanistan counterinsurgency surge.  Hence the desire of the Pentagon to divert drone aircraft - which are in demand in Afghanistan for a variety of missions - from Afghanistan to attacks in Pakistan on bases that are seen as links for attacks on US forces. This is an important shift, or addition, to the role of drones in Pakistan.  (Added:  And of course it has always been part of the use of drones; I've hardened the analytic categories, so to speak, to make them clearer, but really it is a question not of something new, but of scaling up.)  The article makes note of something else, too - that drone aircraft can't be produced fast enough to meet demand for them in AfPak.  The article has excellent graphics, including a chart on numbers of attacks on a month by month basis, and maps. As it happens, this article is timely for me, as I am completing this weekend the draft of an essay for the Hoover Institution on a roster of strategic uses of drones.  In bullet point form, here is an analytic breakdown of categories, as I see them, of drone use.  (I'm not providing more than the bullet title, even though the result is overly-cryptic; the full essay will be available once finished and edited at Hoover's website or SSRN.  Also, if anyone is interested in my earlier published writing on drone warfare and the law, at SSRN's free downloads, see this book chapter, this lengthy piece in theWeekly Standard, and two pieces of Congressional testimony, here and here.)

Reforming Intelligence Oversight

Amidst the discussion of the ACLU Aulaqi lawsuit - both the procedural moves made in court and the underlying debates over the lawfulness of targeting - as well as new revelations from the Woodward book about the size of the CIA's proxy ground forces in Afghanistan, cross-border "overt" raids made by US military forces into Pakistan, and finally reporting in today's papers of CIA drone strikes intensified in Pakistan for the specific purpose of disrupting a feared terrorist attack presumably in Europe ... well, there's a lot going on.  I will comment on several of those issues at some point, but for now I wanted to add yet another item to the ferment - this being the matter of covert activities oversight by Congress.  (This thanks to Jeff Stein (Spytalk blog) writing in the Washington Post newspages today, September 28, 2010, A4). Stein reports that the Senate has reached agreement on revisions to Congressional oversight and reporting on covert activities by the intelligence community under USC 50; it now goes to the House, but the article seemed to think that something like this version would finally emerge.  The net effect is to widen the group of legislators that has to be notified of covert activities; the compromise involves giving the White House more time in which to do so (including the ability it already has to do so after the fact):

Under a bill approved by the Senate on Monday night,the White House would be required to notify the full membership of both congressional intelligence committees of presidential directives to conduct covert action, known as "findings." At present, the administration is required to notify only the "Gang of Eight": the chairmen and ranking members of each committee and the party leadership in both chambers. But the new language still gives the White House flexibility, including a 180-day period in which to notify all 22 House and 15 Senate intelligence committee members of a finding. The White House can defer full notification even longer, according to the bill, if it provides "a statement of reasons that it is essential to continue to limit access" because of "extraordinary circumstances affecting vital interests of the United States."

The Senate bill also contains a couple of specific provisions of interest in today's environment, including a new cybersecurity element of reporting, and a provision requiring that the "White House provide the legal grounds for certain intelligence operations and estimates of whether "significant" costs or a "significant risk of loss of life" might be involved." My own general view is that Congressional oversight of covert activities needs to be strengthened and reformed - not because I think the CIA is out doing rogue stuff with, say, targeted killing, but instead because I think it is the only way to ensure that the political branches are on the same page on policy, what is acceptable and lawful and what is not.  It is an essential element in protecting intelligence agency personnel from actions by courts or, for that matter, Congress itself claiming that they overstepped their authority.  Likewise it is a crucial element in ensuring that the political branches retain their role - Steel Seizure cases-style - in foreign policy and the conduct of self-defense operations abroad and armed conflict.  

First Contact and the Frontiers of Global Governance

Congratulations to David Bosco and the rest of the folks at American University's School of International Service on the conference over the last couple of days on the future of global governance.  I took part on a panel on how to globally govern for which my advice, readers will not be surprised to learn, was very little if at all. That...

Millennium Development Goals

As President Obama prepares to head up to New York for the UN General Assembly meetings, which this year are focused around the 10 year anniversary of the Millennium Development Goals (MDGs), some stories are starting to appear in the papers about the UN and US relations.  Colum Lynch, for example, the Washington Post's UN beat reporter, has an article asking...

Extra Thoughts on Today’s 2nd Circuit ATS Decision

I've now had a chance to read a little more closely the decision, majority and concurrence, in Kiobel v. Royal Dutch Petroleum (issued today by a 2nd Circuit panel of Judge Cabranes writing for himself and Judge Wood, and a concurrence in the judgment by Judge Leval).  On second reading, it still looks to me like a blockbuster opinion, both because of the ringing tone of the Cabranes decision and the equally strong language of a concurrence that, on the key point of corporate liability, amounts to a dissent.  With circuits having gone different directions on this issue, this perhaps tees up a SCOTUS review that would revisit its last, delphic pronouncement on the Alien Tort Statute in Sosa v. Alvarez-Machain. Here are a few thoughts that add to, but also partly revise and extend, things I said in my earlier post today.

More Moves in Chevron Ecuador Case

At risk of getting flooded with emails from various publicists in the case, disputing this or that, I point readers to a good summary article of the background dispute, the allegations and responses on the issue of plaintiff lawyer behavior, and a set of new materials that have come out since Roger posted on the July video outtakes a couple...

Legal Accountability of International Organizations and Their Agents

Not infrequently, I have lamented what I perceive as the lack of due attention in the scholarly literature to the actual circumstances of international organizations, starting with the UN.  One of those fundamental issues concerns accountability, in the special sense that there is no obvious judicial forum for reviewing actions even of individuals alleged to have engaged in serious misconduct, such as fraud, embezzlement, etc. On the one hand, the treaties put the organizations and their civil servants beyond the reach of national courts - leaving at most in some cases the often highly unlikely possibility of a prosecution or civil action in the person's national jurisdiction, but that too seems put out of reach in many if not all cases.  On the other hand, such accountability as supposedly exists rests in various internal review processes.  These internal review processes vacillate between being tools by which senior managers are able to punish whistleblowers and protect themselves or their underlings or national confreres or what have you, or else being captured by the other side of the process through what amounts (in my jaundiced view, admittedly) to the world's strongest public employee union at the UN. I suppose I am not surprised that legal academics find it hard to get too interested in the hard material facts of UN budgets and fiscal accounting, although as Marx often advised, follow the money.  But it is more surprising to me that so little attention has been paid to the legal issues involved in whether and which courts might have jurisdiction in any of the remarkably varied cases that in an accountable domestic society might have attracted the attention of regulators or prosecutors or someone, by agencies and organizations also remarkably varied, and finally individual actors who also vary quite a lot in their legal situations, perhaps diplomats, perhaps not, and so on. At the height of the Oil-for-Food scandal at the UN, when the General Secretariat was at its politically weakest as the reach of the scandal went all the way up to Kofi Annan (whom the Volcker reports left seriously wounded, with clear implications of some level of culpability, while leaving a barely sufficient shred of cover to not force a fight over pushing Annan to resign), there were calls for someone to prosecute someone for something.  It was not just the Oil-for-Food scandal, as anyone familiar even superficially with the opportunities for fraud, self-dealing, and rent-seeking in a system at once as byzantine and unaccountable as the UN's would recognize.  As more rocks began to be overturned, evidence serious graft, embezzlement, kickbacks, and other serious financial fraud of a kind that would plainly be criminally prosecutable, if only there were someplace to prosecute it, began to emerge in other UN programs.  The procurement program for the politically crucial peacekeeping operations - in my view, one of the (very few) UN activities worthy of serious support by the US - was particularly at risk, for example, as its budget has ramped up in recent years, outstripping the regular organization budget.  Nor am I raising political or policy questions here - just "simple" fraud by well-placed officials. In the midst of this turmoil at the UN in 2005, the then-Manhattan DA, the legendary Robert Morgenthau, announced an investigation into the senior UN official in the Oil-for-Food scandal, Benon Sevan (who departed to his native Cyprus, and, if I recall correctly and I might not, following "internal reviews" at the UN, had his legal fees paid and saw no reduction in his pension benefits).  The legal basis for this was never exactly clear to me.  Because the UN is located in Manhattan?  Because some of the conduct involved might have taken place in Manhattan but outside of the UN territory, or involved non-UN assets such as telephone lines, etc.?  This is, after all, an investigation by a state DA, and not even a federal prosecutor.  Although somewhat weirdly, given the politics at that moment, a local level investigation by a state DA of unimpeachable integrity and also a stalwart of the Democratic establishment - rather than a DOJ investigation by the then-Bush administration, turned out to be far more politically palatable. In any case, the weakened Annan did not do what might otherwise have been an inflexible and categorical response of the UN - quite naturally, to be sure, for any sovereign - to disclaim any jurisdictional basis for a Manhattan DA to get involved at all.  Benon Sevan had diplomatic immunity, but the General Secretariat indicated that it would waive it if requested by a prosecutor - clearly meaning Morgenthau.  Perhaps the senior UN management understand perfectly well that Sevan would depart to his native country which of course would do nothing; perhaps some small number of top UN leaders understood that this lack of accountability was a genuine problem and that Morgenthau was a decent option.  (I skip over some other Manhattan DA investigations, particularly involving corruption in UN peacekeeping procurement.)  (Update: see Jeffrey Meyer's correction in the comments - re indictment of Sevan, not just investigation, and also filling in other prosecutions in the procurement and other situations - thanks.) It is not hard to see, in other words, that international organizations such as the UN have massive agency failure problems.  That is a somewhat anodyne way of putting it; the problems range from rent-seeking to major criminal corruption and fraud.  They arise from a treaty structure deliberately designed to shield the organization and its agents from judicial accountability - for perfectly understandable reasons, to be sure.  And from the predictable "capture" of internal review mechanisms.  The result is to put the UN and international organizations and their agents in fundamental ways outside of the rule of law in the most ordinary sense.  That's not too strong a way of putting it.  But again, this receives remarkably little attention from academics.  The reflexive position of observers tends to be to define today's deviancy down, discounting today against the glorious, but always-receding, always-promised future of international institutions.  Mostly, I think, people just want to focus on the idealistic stuff about tomorrow and plug up their ears about anything that actually happens today. So let me welcome a new paper up on SSRN by Matthew Parish, of the British Institute of International and Comparative Law, writing in the International Organizations Law Review, "An Essay on the Accountability of International Organizations," offering a detailed look at the problems of legal accountability for a wide variety of international organizations and their agents.  It is a fine paper on a neglected topic.  I don't say this from complete agreement; I have reservations about the paper's proposals for accountability for national peacekeeping forces on missions in the field, for example.  Nor does Parish share my fundamental skepticism about the UN and its imagined mission; far from it, he is looking for ways to make it better on its own terms.  But overall I think it has many sensible things to say, and in any case offers a cogent account of the many agency failure problems at issue, from the standpoint of legal jurisdiction.  I've put the abstract from SSRN below the fold.

Samuel Moyn on the History of Human Rights and the Human Rights Movement

Columbia University historian Samuel Moyn has a new book out, The Last Utopia: Human Rights in History (Harvard/Belknap).  I haven't read it - but I have ordered it from Amazon! - and I'm sure I'll have more to say about it once I've read it.  However, it received a positive (and quite interesting in its own right) review from Brendan Simms, a well-known Cambridge international relations professor, in the Wall Street Journal.  And Professor Moyn has written a summary of the book's argument that appears as an article in this week's Nation.  The Nation piece is good reading on its own, and this part drew my attention:

Beginning in the 1990s, when human rights acquired a literally millennial appeal in the public discourse of the West during outbreaks of ethnic cleansing in Southeastern Europe and beyond, it became tempting to treat 1948 as a moment of annunciation, with large political consequences. Carter, and the 1970s, were rarely mentioned. It became common to assume that, ever since their birth in a moment of postgenocidal revulsion and wisdom, human rights had become embedded slowly but steadily in humane consciousness in what amounted to a revolution of moral life. In a euphoric mood, high-profile observers like Michael Ignatieff believed that secure moral guidance, born of incontestable shock about the Holocaust, was on the verge of displacing self-interest and power as the foundation of international relations. In Samantha Power's "A Problem From Hell": America and the Age of Genocide (2002), Raphael Lemkin, who crafted the draft resolution of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide, was dusted off as a human rights sage and hero, with Carter earning attention only for failing to intervene against Pol Pot's atrocities. In fact, when "human rights" entered the English language in the 1940s, it happened unceremoniously, even accidentally. Human rights began as a very minor part of a hopeful alternative vision to set against Adolf Hitler's vicious and tyrannical new order. In the heat of battle and shortly thereafter, a vision of postwar collective life in which personal freedoms would coalesce with more widely circulating promises of some sort of social democracy provided the main reason to fight the war. It's important to enumerate what human rights, in the 1940s, were not. Ignatieff was wrong. They were not a response to the Holocaust, and not focused on the prevention of catastrophic slaughter. Though closely associated with the better life of social democracy, only rarely did they imply a departure from the persistent framework of nation-states that would have to provide it. Above all, human rights were not even an especially prominent idea. Unlike later, they were restricted to international organization, in the form of the new United Nations. They didn't take hold in popular language and they inspired no popular movement. Whether as one way to express the principles of Western postwar societies or even as an aspiration to transcend the nation-state, the concept of human rights never percolated publicly or globally during the 1940s with the fervor it would have in the '70s and the '90s, including during negotiations over the Universal Declaration. What if the 1940s were cut loose from the widespread myth that they were a dry run for the post–cold war world, in which human rights began to afford a glimpse of the rule of law above the nation-state? What if the history of human rights in the 1940s were written with later events given proper credit and a radically different set of causes for the current meaning and centrality of human rights recaptured? The central conclusion could only be that, however tempting, it is misleading to describe World War II and its aftermath as the essential source of human rights as they are now understood. From a global perspective, the brief career of human rights in the 1940s is the story of how the Allied nations elevated language about human rights as they reneged on the earlier wartime promise—made in the 1941 Atlantic Charter—of the self-determination of peoples. Global self-determination would have spelled the end of empire, but by war's end the Allies had come around to Winston Churchill's clarification that this promise applied only to Hitler's empire, not empire in general (and certainly not Churchill's). The Atlantic Charter set the world on fire, but because similar language was dropped from the Universal Declaration, human rights fell on deaf ears. It is not hard to understand why. Human rights turned out to be a substitute for what many around the world wanted: a collective entitlement to self-determination. To the extent they noticed the rhetoric of human rights at all, the subjects of empire were not wrong to view it as a consolation prize.

Without, as I say, yet having read the book, I find this both intriguing.  No, more than that - it accurately captures in my own experience as an NGO person who first volunteered to do work for Human Rights Watch in 1983 when it was still two somewhat separate organizations, Helsinki Watch and Americas Watch.  This was a time when Aryeh Neier was operating out of a tiny dark office in the New York City Bar building, and the organization was not in its current position of glorious NGO hegemony and a $44 million annual budget - meaning, an offer from a Harvard Law student bringing his own funding was not an occasion to giggle at the presumption.  Ken Roth was still working as a Federal prosecutor.