NSW GIPA Report

The NSW Information Commissioner last month tabled the first Report [PDF] on the operation of the Government Information (Public Access) Act 2009 (NSW), aka GIPA. The report covers the period 2010-2013.

The Commissioner is required under section 37 of the Government Information (Information Commissioner) Act 2009 (NSW) - aka the GIIC Act  - to provide to the NSW Parliament an annual report on the operation of the GIPA.

The first  report is described as providing-

a retrospective baseline report on the early years of the Act across the five decision making sectors the GIPA Act applies to:

• NSW government agencies, 

• state owned corporations, 

• NSW councils, 

• universities and 

• Ministers and their staff.

From this baseline report we can advance our collective responsibility for information access and its contribution to our democratic society by: improving the operations of the Act; enhancing the Act’s objectives; and creating a basis for evaluation for future reports, policy and initiatives. 

The Commissioner indicates that -

The three-year report confirms the Act is achieving its goal of improving the general approach of decision makers in providing timely and proactive access to information, giving the citizens of NSW confidence in Government decision making.

The report indicates that the strategic intent of the Act is largely being met with

• most agencies complying with the Act’s requirements. 

• consistent and credible levels of information release 

• high levels of timeliness 

• increasing number of valid applications 

• the application of public interest considerations 

• greater release of information through agency reviews.

The report offers a  snapshot of data regarding 50,318 applications lodged across the five sectors -

• 82% of applications were lodged with state government agencies, state owned corporations or Ministers 
• 17% of  applications were lodged with NSW councils (local government)
•  61% of the applications  are attributed to three agencies: NSW Police (36%), RMS (15%) and WorkCover (10%) 
•  87% of decisions made by agencies were processed within the statutory time frame 
• a positive trend with 2,245 invalid applications received in 2010-2011 reduced to 1,699 in 2012-2013.

Remediating Academic Integrity

'Assessing the Need for a Research Ethics Remediation Program' by James M DuBois, Emily E Anderson and John Chibnall in (2013) 6(3) Clinical & Translational Science 2009 comments

With supplement funding to the Washington University CTSA, the Restoring Professionalism and Integrity in Research (RePAIR) program was developed at Saint Louis University to meet the remediation needs of institutions nationwide regarding investigators who violate research regulations. With the aim of determining the frequency and kinds of wrongdoing at leading research institutions in the United States, as well as institutional responses and levels of interest in a formal remediation program, an online questionnaire was distributed by email to a research integrity officer (RIO) and institutional review board (IRB) chair at all medical schools and comprehensive doctoral institutions in the United States (N = 194). One hundred sixty-one individuals responded (44%) representing 66% of institutions. For those institutions that had both RIOs and IRB chairs responding, 96% had investigated at least one case over the past 2 years; the modal individual response was 3–5 cases, with a range from 0 to more than 16 cases. The most common forms of wrongdoing were violations of procedure, informed consent, research integrity (fabrication, falsification, plagiarism), privacy, and conflict of interest policies. Most RIOs and IRB chairs expressed interest in the RePAIR program, despite concerns about costs and faculty resistance.

The authors note that

A recently developed taxonomy of wrongdoing in research identifies 14 primary kinds of violations of professional standards for researchers, including research misconduct (which is federally defined as falsification, fabrication, or plagiarism—FFP), informed consent failures, privacy/confidentiality violations, improper care of animals, conflict of interest violations, and others.

Some forms of wrongdoing appear to be quite common. While determining the frequencies of FFP is controversial, it is probably the most studied domain of wrongdoing. A recently published meta-analysis of survey data on this topic estimates that almost 2% of scientists have admitted fabricating, falsifying, or modifying data at least once and, when asked about colleagues’ behavior, over 14% of scientists surveyed reported knowing of data falsification. Applying a conservative rate of 1.5% to the 155,000 researchers supported by the US National Institutes of Health, Titus, Wells, and Rhoades estimated 2,325 cases of FFP per year occur that deserve investigation. FFP is just one of 14 categories of wrongdoing in research. When asked about a much broader set of research ethics violations and questionable practices, 33% of researchers self-reported questionable behavior5 and 84% reported observing questionable behavior among colleagues.

Wrongdoing in research causes significant problems for multiple stakeholders. Research misconduct or FFP impedes research progress, undermines public trust in research, and wastes public dollars by introducing false information into the scientific literature, distorting meta-analyses, and straining the scientific publication system as it forces editors to take special effort to detect misconduct. The infamous Tuskegee syphilis study chillingly demonstrates how improper exposure to risk and consent violations can harm participants and negatively impact trust in clinical research.

Although few data on recidivism (or repeated wrongdoing after getting caught) are available in the domain of research, in other professions once violations of professionalism occur, the risk of recidivism is high. For example, while less than 1% of physicians with no sanctions from 1994 to 1998 received a sanction during 1999–2002, more than 20% of physicians receiving moderate/severe sanctions in the first period recidivated in the subsequent time period. Our ongoing study of high-profile cases of wrongdoing in research indicates that many investigators have offended in more than one environment; oftentimes, earlier offenses are only made public once an investigator is caught at another institutions and these offenses are publicly reported.The confidentiality (or secrecy) of institutional responses to wrongdoing often appears to enable further wrongdoing.

Why would an institution choose to refer an investigator for intensive professional remediation education rather than terminate employment? First, termination has downsides, including: The loss of an investigator in whom the institution, and often funding agencies, have heavily invested; the loss of research funding and oftentimes research staff working in the lab of the terminated investigator; and potential for legal actions. Second, remediation may present a reasonable way of achieving a variety of goals: preventing recidivism; restoring trust; and managing risk by having a reasonable response plan in place.

For physicians who experience lapses in professionalism in medical care, excellent remediation education programs exist. In these programs, participants meet in small groups for several days and engage in exercises that address some of the root causes of unprofessional behavior. Outcomes appear promising: Physicians demonstrate marked improvement in skills and peer evaluations on multiple behavioral measures. Until recently, no such program existed for researchers.

Moreover, a small but growing body of evidence gathered across the past two decades indicates that most current instruction programs in the responsible conduct of research (RCR) are not effective in improving ethical decision making or behavior; in fact, for reasons that are currently poorly understood, RCR training may be associated with worse professional behavior.

We recently received funding from the National Institutes of Health to develop a research ethics remediation program, “Restoring Professionalism and Integrity in Research” (RePAIR). Information on the RePAIR program can be found at http://www.repairprogram.org. The RePAIR program is not an ethics course, but rather an intensive professional development program that is based on best available evidence regarding the nature of wrongdoing in research and the factors that predict poor ethical decision making. While a full description of the curriculum and the evidence-base supporting the curriculum is beyond the scope of this needs assessment paper, data indicate that problems in the conduct of research arise in part due to self-serving biases, faulty mental models for research, stress, and the failure to forecast long-term consequences of actions, including especially consequences to others. The development team includes industrial-organizational, clinical, experimental, and developmental psychologists, as well as lawyers, researchers, research administrators, and research ethics educators. The program consists of assessment, online training when knowledge deficits are identified, and a 3-day onsite education program aimed at reducing levels of self-serving bias in research, fostering ethical decision-making skills, teaching stress management and work management skills, and developing individualized professional development plans that will be tracked across the following year.

As a first step in the development of the RePAIR program, we conducted a survey of all comprehensive doctoral institutions and allopathic medical schools in the US to assess their needs for a research ethics remediation program. This paper presents details on that survey and explores the implications of our findings.

Control Orders

The Child Sex Offenders Registration (Control Orders and Other Measures) Amendment Act 2014 (SA) amends the Child Sex Offenders Registration Act 2006 (SA) to insert new provisions in the offender registration statute such that on application by the South Australian Police, the Magistrates Court may make a Control Order against any adult registrable offender if the court is satisfied, on the balance of probabilities, that the registrable offender poses a risk to the safety and well-being of one or more children, or children generally, and that the making of the order will reduce that risk.

The associated Criminal Law (Sentencing) (Character Evidence) Amendment Act 2014 (SA) amends the Criminal Law (Sentencing) Act 1988 to provide that a sentencing court is not to have regard to the good character or lack of previous convictions of the offender if the offence is a class 1 or class 2 offence - within the meaning of the Child Sex Offenders Registration Act 2006 (SA) and the court is satisfied that the alleged good character or lack of previous convictions assisted the defendant to commit the offence.

Streetphotos

'Street Shootings: Covert Photography and Public Privacy' by Nancy Danforth Zeronda in (2010) 64(4) Vanderbilt Law Review 1131 [PDF] comments that

Street photographers, like snipers, pride themselves on stealth. Camouflaged in nondescript clothing, they wander the streets undetectable, armed, and on the hunt. When they find their mark, they act quickly. As the famous twentieth-century street photographer Henri Cartier-Bresson described: “The creative act lasts but a brief moment, a lightning instant of give-and-take, just long enough for you to level the camera and to trap the fleeting prey in your little box.” While methods of “trapping prey” vary from shooter to shooter, the mission remains the same—staying as covert as possible and catching an unknowing subject in a candid pose. In the formative years of street photography, Cartier-Bresson concealed himself by wrapping a large handkerchief around his camera and pretending to blow his nose while discretely taking a picture. He also covered his camera in black tape to conceal any shiny parts that might give him away to his subjects.

Today’s street photographers are armed with a new generation of weapons that hardly need concealment. The rise of miniaturized and digital technologies has taken street shooting to a whole new level. In a world where companies compete to make the smallest, most inexpensive cameras, surreptitious photography runs rampant. For example, cell-phone cameras and “dime-sized spy cameras” make it possible for photographers to shoot their subjects from virtually any angle without detection. However, as technology advances, so does the potential scope and harm from photographic invasions of a subject’s privacy.

One of the most disturbing products of these developments is the birth of “upskirt photography.” As its name suggests, upskirt photography involves taking pictures of women up their skirts. There are currently over one hundred websites featuring upskirt images, indicating just how in-demand the product is. This form of unauthorized photography can have devastating effects on subjects. An upskirt photograph draws attention to a private aspect of a person’s life that would not have been seen by the naked eye and that the subject likely would not have consented to put on public display. In this regard, upskirt photographs infringe on basic precepts of human dignity. They also often cause outrage, mental suffering, shame, or humiliation for their subjects.

Despite these severe injuries, an individual photographed in public has nearly no recourse under current civil law. Street photography thrives because an individual has no right to privacy in public places. Instead, the law protects the photographer, not the victim.

Civil law must keep pace with technology and break away from its current conception of privacy in public places. Upskirt photography will persist until the law provides a remedy that serves as a sufficient deterrent against the behavior. Deterrence, though, cannot be achieved when courts cling to conventional thinking that invasions of privacy cannot occur in the public sphere. New and problematic forms of street photography necessitate a reexamination of photographic invasions of privacy.

Part II of this Note provides a brief history of the right to privacy, highlights specific characteristics unique to photography that intensify its threat to privacy, and introduces the conventional rationales for denying individuals a right to privacy in public. Part III surveys photographic invasion-of-privacy cases and examines the classic rationales for upholding photographers’ rights to shoot subjects covertly in public. Drawing upon the concepts discussed in Part III, Part IV then proposes that the tort of battery should be expanded to encompass photographic street shootings. The tort of battery protects an individual’s dignity from intentional invasions. Accordingly, the interests at stake in street shootings fit squarely within the interests battery seeks to preserve. Part IV further argues that the “contact” requirement of battery can be satisfied either by actual contact between the photographer and the victim (or the victim’s clothing) or by a nontraditional theory of contact via light particles. Characterizing street shootings as a form of battery eliminates many of the impediments faced by plaintiffs in photographic invasion of privacy claims.

Drones and targeted killing

The 81 page Stimson Center report [PDF] from its Task Force on US Drone Policy

represents a preliminary effort to offer analysis and recommendations that could help shape and guide US UAV policy going forward. It looks at the military and national security benefits of UAV technologies, analyzes our current approaches to UAV development and export, and seeks to contextualize the strategic questions relating to the use of lethal UAVs outside traditional battlefields. Ultimately, it offers eight detailed recommendations for overhauling UAV strategy; improving oversight, accountability and transparency; developing forward-looking international norms relating to the use of lethal force in nontraditional settings; and devising sound UAV export control and research and development policies.

The report states

With their long loiter time, sophisticated sensors and extensive operational reach, unmanned aerial vehicles (UAVs) are an attractive option for a wide range of military and intelligence tasks, including intelligence and reconnaissance, disaster relief and humanitarian assistance, transportation, the provision of close air support to soldiers in combat, and strikes against targets in relatively distant or inaccessible locations. While the overseas use of UAVs for intelligence, reconnaissance, transport and close air support has been largely uncontroversial, the growing use of lethal UAVs for targeted counterterrorism strikes away from so-called “hot battlefields” has generated substantial attention and criticism. US government officials argue that such strikes are both lawful and effective: as President Obama said in his May 2013 speech at the National Defense University,

“Dozens of highly skilled al-Qaida commanders, trainers, bomb makers and operatives have been taken off the battlefield. Plots have been disrupted. … Simply put, these strikes have saved lives. Moreover, America’s actions are legal. … [T]his is a just war — a war waged proportionally, in last resort, and in self-defense."

Nevertheless, many commentators question the strategic value of US UAV strikes for counterterrorism purposes, arguing that the availability of lethal UAVs has fueled a “whack-a-mole” approach to counterterrorism, drawn attention from non-kinetic means of combating terrorist organizations, increased anti-American sentiment, eroded norms of sovereignty in ways ultimately likely to be detrimental to US interests, and created a slippery slope toward continual or widening conflict and instability. Others charge that UAV strikes cause excessive civilian casualties, or worry about the ethical and psychological impact of what they view as “remote-control killing.” Finally, many critics charge that the availability of lethal UAV technologies has tempted the United States to engage in a largely covert campaign of targeted killing, creating, in effect, a “secret war” governed by secret law. In particular, controversy has swirled around what critics view as the relative lack of transparency and accountability in US targeted killings, and the potential implications this has for domestic and international rule of law, especially if other states — including many not known for their human rights records — mimic US precedents. 

 The  Task Force

believes that UAVs should be neither glorified nor demonized. It is important to take a realistic view of UAVs, recognizing both their continuities with more traditional military technologies and the new tactics and policies they enable. Most US military UAVs are not weaponized, and only a tiny fraction of US government UAV missions involve targeted UAV strikes outside of traditional, territorially defined battlefields such as those in Afghanistan, Iraq and Libya. Further, UAVs are not a US “super-weapon:” while their use has led to significant tactical successes, they are not strategic weapons, and they currently have substantial vulnerabilities as well as strengths. The United States does not have a monopoly on UAV technologies or an ability to predict all potential countermeasures; indeed, there is reason to fear the rapid and uncontrolled proliferation of UAV technologies developed in other states, along with the rapid evolution of technologies designed to counter UAVs. While we do not believe that UAV strikes cause disproportionate civilian casualties or turn killing into a “video-game,” we are concerned that the availability of lethal UAV technologies has enabled US policies that likely would not have been adopted in the absence of UAVs. In particular, UAVs have enabled the United States to engage in the cross-border use of lethal force against targeted individuals in an unprecedented and expanding way, raising significant strategic, legal and ethical questions. Strategic Questions We are concerned that the Obama administration’s heavy reliance on targeted killings as a pillar of US counterterrorism strategy rests on questionable assumptions, and risks increasing instability and escalating conflicts. While tactical strikes may have helped keep the homeland free of major terrorist attacks, existing evidence indicates that both Sunni and Shia Islamic extremist groups have grown in scope, lethality and influence in the broader area of operations in the Middle East, Africa and South Asia. Furthermore, US targeted strikes also create new strategic risks. These include possible erosion of sovereignty norms, blowback and risks of a slippery slope into continual conflict.

Erosion of sovereignty norms:

The US government takes the view that it has a legal right to use force in the territories of foreign sovereign states when those states are “unwilling or unable” to take what the United States considers appropriate action to eliminate what it sees as imminent threats. But inevitably, assessments of what constitutes an imminent threat to the United States and what would constitute appropriate action are somewhat subjective in nature; the United States may view the use of force as justified even when US allies and partners do not. The US use of force in sovereign nations whose consent is questionable or nonexistent may encourage other states to follow suit with their own military platforms or commercial entities.

Blowback:

Civilian casualties, even if relatively few, can anger whole communities, increase anti-US sentiment and become a potent recruiting tool for terrorist organizations. Even strikes that kill only terrorist operatives can cause great resentment,  particularly in contexts in which terrorist recruiting efforts rely on tribal loyalties or on an economically desperate population. UAV strikes by the United States have also generated a backlash in states not directly affected by the strikes, in part due to the perception that such strikes cause excessive civilian deaths, and in part due to concerns about sovereignty, transparency, accountability and other human rights and rule of law issues.

Slippery Slope:

The increasing use of lethal UAVs may create a slippery slope leading to continual or wider wars. The seemingly low-risk and low-cost missions enabled by UAV technologies may encourage the United States to fly such missions more often, pursuing targets with UAVs that would be deemed not worth pursuing if manned aircraft or special operation forces had to be put at risk. For similar reasons, however, adversarial states may be quicker to use force against American UAVs than against US manned aircraft or military personnel. UAVs also create an escalation risk insofar as they may lower the bar to enter a conflict, without increasing the likelihood of a satisfactory outcome.

The US use of lethal UAVs for targeted strikes outside of hot battlefields is likely to be imitated by other states. Such potential future increase in the use of lethal UAV strikes by foreign states may cause or increase instability, and further increase the risk of widening conflicts in regions around the globe.

Lack of Strategic Analysis:

In recent years, US targeted strikes involving UAVs have gone from a relative rarity to a relatively common practice in Pakistan and Yemen. As the number of strikes increases, so, too, does the strategic risk. To the best of our knowledge, however, the US executive branch has yet to engage in a serious cost-benefit analysis of targeted UAV strikes as a routine counterterrorism tool.

There are numerous non-kinetic means of combatting terrorism; some of these — e.g., efforts to disrupt terrorist communications and finances — can easily be combined with targeted strikes, while others — e.g., efforts to build friendly relationships with local communities and inspire cooperation — may be less easily combined. A serious counterterrorism strategy needs to consider carefully, and constantly reassess, the balance between kinetic action and other counterterrorism tools, and the potential unintended consequences of increased reliance on lethal UAVs.

Legal and Ethical Issues Transparency:

The administration has disclosed details relating to only a handful of targeted strikes against American citizens: for the most part, the identities of those targeted and the basis for their targeting have not been disclosed. Details relating to incidents that may have involved civilian casualties also have not been disclosed. In formal court filings, the administration continues to state that it will neither confirm nor deny particular strikes, or even the existence of such strikes as a general matter. We recognize that US officials frequently have compelling reasons to refrain from providing some of this information to the public, and we believe that US government decision-makers make targeting decisions in good faith and with genuine care. Nonetheless, we are concerned by the continuing lack of transparency relating to US targeted killings.

Law versus the Rule of Law:

From a US government perspective, the United States is in an armed conflict with al-Qaida and its “associated forces.” As an international law matter, the existence of an armed conflict triggers the applicability of the law of armed conflict, which permits the United States to target al-Qaida operatives as enemy combatants. By extension, members of organizations that fight alongside al-Qaida are also targetable as co-belligerents — and unlike ordinary domestic law or international human rights law, the law of armed conflict does not require the United States to provide “due process” to enemy combatants before targeting them. International law also recognizes that states have the right to use armed force outside their own borders when doing so is necessary to prevent an imminent attack, and US officials have therefore argued that targeted strikes against terror suspects are permitted both under the law of armed conflict and under the international law of self-defense.

These are plausible interpretations of the law, and we disagree with those critics who have declared that US targeted killings are “illegal.” But changing technologies and events have made it increasingly difficult to apply the law of armed conflict and the international law relating to the use of force in a consistent and principled manner, leading to increasing divergence between “the law” and core rule of law principles that traditionally have animated US policy.

The rise of transnational non-state terrorist organizations confounds preexisting legal categories. In a conflict so sporadic and protean, the process of determining where and when the law of armed conflict applies, who should be considered a combatant and what count as “hostilities” is inevitably fraught with difficulty. While our military and intelligence communities have grown increasingly adept both at identifying and confirming the identities of al-Qaida affiliates and at precise and careful targeting, the criteria used to determine who might be considered targetable remain unknown to the public. Similarly, it is difficult to understand how the US government determines the “imminence” of unknown types of future attacks being planned by unknown individuals.

These enormous uncertainties are multiplied further when the United States relies on intelligence and other targeting information provided by a host nation government: how can we be sure we are not being drawn into a civil war or being used to target the domestic political enemies of the host state leadership?

The legal norms governing armed conflicts and the use of force look clear on paper, but the changing nature of modern conflicts and security threats has rendered them almost incoherent in practice. Basic categories such as “battlefield,” “combatant” and “hostilities” no longer have clear or stable meaning. When this happens, the rule of law is threatened. The United States was founded upon rule of law principles, and historically has sought to ensure that its own actions, international law and the actions of foreign states are consistent with these principles. Today, however, despite the undoubted good faith of US decision-makers, it would be difficult to conclude that US targeted strikes are consistent with core rule of law norms. 

International Precedents:

From the perspective of many around the world, the United States currently appears to claim, in effect, the legal right to kill any person it determines is a member of al-Qaida or its associated forces, in any state on Earth, at any time, based on secret criteria and secret evidence, evaluated in a secret process by unknown and largely anonymous individuals — with no public disclosure of which organizations are considered “associated forces” (or how combatant status is determined or how the United States defines “participation in hostilities”), no means for anyone outside that secret process to raise questions about the criteria or validity of the evidence, and no means for anyone outside that process to identify or remedy mistakes or abuses. US practices set a dangerous precedent that may be seized upon by other states — not all of which are likely to behave as scrupulously as US officials.

Democratic Accountability:

Increased US reliance on lethal UAVs in cross-border targeted strikes also poses challenges to democracy and the American system of checks and balances. While we understand the administration’s reasons for considering additional transparency difficult, the effect of the lack of transparency is that the United States has been fighting what amounts to a covert, multi-year killing program. Without additional information, the citizenry cannot evaluate US targeted strikes.

Unmanned aerial vehicle strikes also raise questions about the continued efficacy of traditional congressional oversight mechanisms. The Obama administration continues to rely on the 2001 Authorization for Use of Military Force (AUMF) as the primary domestic legal basis for US targeted strikes outside of “hot” battlefields, but the administration’s interpretation of the AUMF is extraordinarily broad — and even many former executive branch officials question whether Congress intended to authorize such an unbounded conflict when the AUMF was passed in 2001.

The covert or unacknowledged nature of most UAV targeted strikes also makes it difficult for Congress to perform its vital oversight functions. CIA UAV strikes constitute “covert action” under US law, which means that the CIA need not give prior notice of particular covert operations to any members of Congress except the so-called “Gang of Eight.” After a covert action, the executive branch is required to notify the full intelligence committees, but not the full Congress.

By law, the US military is prohibited from engaging in covert action. It is important to emphasize, however, that the military is not prohibited from engaging in secret, unacknowledged activities that are intended to remain unacknowledged, as long as these activities constitute “traditional military activities” under US law.

From the perspective of laypersons, both the CIA and the military can thus engage in covert strikes in the colloquial sense of the term. But while covert action undertaken by the CIA requires a presidential finding and notification — even if after the fact — of the congressional intelligence committees, secret, unacknowledged strikes carried out by the US military need not be reported to the intelligence committees, as the military reports instead to the House and Senate Armed Services committees.

At best, this fragmented oversight system creates confusion and a danger that critical issues may slip through the cracks. This fragmented oversight system is particularly  problematic given that in practice, the military and CIA generally work together quite closely when planning and executing targeted UAV strikes: few strikes are “all military” or “all CIA.” The differing CIA and military reporting requirements create a risk of executive branch “forum shopping,” tempting the executive branch to place a given targeted strike under the direction and control of whichever entity is deemed to have the most accommodating committee members. Even when the appropriate congressional committees are fully briefed, the classified nature of targeted strikes, whether CIA or military, makes oversight a challenge.

Future Technological Developments

UAV technologies will continue to evolve rapidly. Looking into the near future, it seems likely that an increasing number of weapons will be adapted for use on UAV platforms such that any weapon developed for a manned aircraft will soon be launchable from an unmanned aircraft. UAVs will become more interoperable, and system software likely will evolve to integrate multiple UAVs across an entire “combat cloud.” Autonomous UAV capabilities will also likely be developed.

These likely future technological developments have the potential to be used both for good and for ill, and the time to discuss their potential implications is now. Among other things, we will need to reevaluate existing UAV-related Federal Aviation Administration rules and export control rules; at the moment, US export control rules for UAVs do not appear well-suited to advancing US national security objectives.

It offers the following recommendations -

1. Conduct a rigorous strategic review and cost-benefit analysis of the role of lethal UAVs in targeted counterterrorism strikes to evaluate the impact of past UAV strikes on terrorist organizations, affected communities, public opinion, litigation, defense policy and government cooperation with allies and partner nations.

2. Improve transparency in targeted UAV strikes: as a general principle, the United States should acknowledge the use of lethal force in foreign countries both to Congress and to the American public. While secrecy may be required before and during each strike, strikes generally should be acknowledged by the United States after the fact. The president should publicly release information on: the approximate number and general location of targeted UAV strikes; the number of individuals known to have been killed and their organizational affiliations; the number and identities of any civilians known to be killed, and the approximate number of strikes carried out by the military versus the CIA. The president should also order the preparation and public release of a detailed report explaining the legal basis under domestic and international law for the United States conducting targeted killings.

3. Transfer general responsibility for carrying out lethal UAV strikes from the CIA to the military. While rare exceptions may be warranted, as a general principle, the military should be the entity responsible for the use of lethal force outside the United States, while the CIA should focus on intelligence collection and analysis.

4. Develop more robust oversight and accountability mechanisms for targeted strikes outside of traditional battlefields. The president should, by executive order, create a nonpartisan, independent commission to review lethal UAV policy. Members of this independent commission should be selected with a view to ensuring credibility and diversity of background. The commission should not be directly involved in the pre-strike approval process, but should be tasked with reviewing the overall policy and approval process for the use of lethal UAV strikes (both military and CIA); unclassified versions of the commission’s reports to the president and Congress should be released publicly.

5. Foster the development of appropriate international norms for the use of lethal force outside traditional battlefields. These norms should rest upon a joint commitment to ensuring that states have the ability to respond effectively to nontraditional threats from nontraditional actors and a commitment to ensuring that the use of lethal force remains consistent with core rule of law principles and respect for fundamental human rights. Rules and practices relating to the state use of lethal force should be transparent and clear; lethal force should not be used without adequate safeguards to prevent arbitrariness and protect against error and abuse; and impartial accountability mechanisms must be available to investigate credible allegations of error and abuse, and, if appropriate, provide remedies.

6. Assess UAV-related technological developments and likely future trends, and develop an interagency research and development strategy geared toward advancing US national security interests in a manner consistent with our values. This review should also flag any legal, ethical and strategic implications of emerging UAV-related technologies, including the possible future development of autonomous weapons systems, and lead to the development of a holistic interagency research, development and use strategy for UAVs.

7. Review and reform UAV-related export control rules and FAA rules, with a view to minimizing unnecessary regulatory burdens on the development of the US UAV industry, while still safeguarding our national security interests and ensuring responsible UAV development and use.

8. The FAA should accelerate its efforts to meet the requirements of the 2012 FAA Reauthorization Bill to ensure the safe integration of civil unmanned aircraft systems into the national airspace system by Sept. 30, 2015, as required by law, but also consider whether certain commercial UAVs can be operated safely in the national airspace prior to that date, and make exemptions as permitted as a stopgap measure toward the development of a comprehensive regulatory framework for both government and privately operated UAVs.

PC on Trade Assistance and secrecy

Key points from the Productivity Commission's Trade & Assistance Review 2012-2013 report [PDF] -

• Government assistance to industry is provided through an array of measures including tariffs, budgetary outlays, tax concessions, and restrictions on competition. – This benefits the industry receiving it, but comes at a cost to other industries, taxpayers or consumers. A critical issue is whether the benefits accruing to industry outweigh the costs. 
• Estimated tariff assistance to industry was $7.8 billion in 2012-13 in gross terms, accruing overwhelmingly to manufacturing. Budget and tax related support was worth a further $7.8 billion, thus total gross assistance was $15.6 billion. 
• After deducting the cost penalty of tariffs on imported inputs ($7.1 billion, two thirds incurred by services industries) net assistance to industry was $8.5 billion. 
• Budgetary assistance in 2012-13 was about $2.2 billion less than in 2011-12. The largest reductions were from the winding down of transitional assistance afforded by the Energy Security Fund ($1 billion), the Coal Sector Jobs Package ($219 million) and the Steel Transformation Plan ($164 million). 
• Since November 2013, the current Government has announced, amongst other things, that it would: reduce funding to motor vehicle manufacturing between 2015–2017 by $500 million, not provide a debt guarantee or line of credit to Qantas, nor provide assistance requested by processing company SPC Ardmona, but would proceed with support to Cadbury for a tourist facility. 
• Australia recently agreed to bilateral trade agreements with Korea and Japan. Trade agreements can distort comparative advantage between nations and consequently reduce efficient resource allocation. – The rules of origin in Australia’s nine bilateral agreements differ widely, are likely to impede competition and add to the compliance costs of firms engaging in trade. 
• Government outlays on defence capability represent one of the largest discretionary items in the Commonwealth’s budget. – Defence industry assistance includes cost premiums for local purchasing preferences and budgetary support for skilling, research and exporting (with expenditures up to $500 million directly and indirectly benefiting industry). – Significant cost premiums can also be incurred by choosing to modify off-the-shelf equipment or pursuing bespoke designs. 
• To be justified, cost premiums and defence industry assistance need to be commensurate with any additional security and operational benefits. Publishing these additional costs and benefits would assist understanding of apparently huge cost differentials. 
• The efficiency and effectiveness of direct defence industry assistance programs could benefit from independent scrutiny. 
• Three short reviews also comment on topical areas of public interest: R&D; Foreign Investment Rules; and Special Economic Zones.

Consistent with past wariness about the problematical TransPacific Partnership Agreement the Commission comments -

The concept of a TPP agreement developed from an existing trade agreement between Brunei, Chile, New Zealand and Singapore (known as the Trans-Pacific Economic Partnership Agreement) signed in 2005. The original goal was to create a model regional agreement that could be expanded to include additional members from the APEC group of countries. In addition to the four foundation members, eight other countries have since joined the negotiations. In chronological order of their engagement, these countries are the United States, Australia, Peru, Vietnam, Malaysia, Mexico, Canada and Japan. South Korea and Taiwan have also expressed interest in joining. The latest ministerial meeting was held in Singapore on 19 and 20 May 2014. The timeline for completion of negotiations remains unclear.

A defining feature of the original TPP agreement was that it provided, over time, for the provision of preferential tariff rates between members on all goods, including agriculture. The agreement would also be comprehensive in that it would cover trade in goods and services, rules of origin, trade remedies, sanitary and phytosanitary measures, technical barriers to trade, intellectual property, government procurement, competition policy, temporary entry of business persons and dispute settlement procedures.

In addition to these topics, the TPP negotiations have broadened to encompass financial services, investment, electronic commerce, telecommunications, regulatory coherence and competitiveness issues. TPP negotiation groups have also been established to consider labour and environmental issues. A stated aim of the TPP is that the agreement would facilitate a consolidation of the differences (particularly rules of origin) in existing bilateral agreements used by current and prospective TPP members.

The confidential nature of the TPP negotiating text has been contentious particularly in respect of intellectual property and investor-state dispute settlement provisions. It has been argued that it is not common practice (including in Australia) to release negotiating texts of agreements before they are finalised on the grounds that public disclosure could undermine negotiations and, given their evolving nature, do little to better inform public debate (Robb 2014). Once an agreement involving Australia has been signed by the negotiating parties, the text is subjected to scrutiny, but not amendment, in the Australian Parliament before ratification. However, by that stage, the government of the day has staked its credibility on the agreement being ratified. The Commission is unaware of any trade agreement that has been rejected in response to parliamentary scrutiny. An independent, arms-length process that precedes commitment by the government would be preferable.

In "Assessing the potential impacts of proposed agreements" the report goes on to state -

 Trade preferences granted through bilateral and regional trade agreements, if fully utilised, can increase trade and investment flows between partner countries. Reporting of the outcomes of agreement negotiations invariably focuses on the positive impacts of these bilateral flows between signatories to the agreement. What is less commonly reported are the potential negative impacts of trade and investment that is diverted from more efficient sources of supply and the availability of even greater gains through unilateral action by the Australian Government to eliminate tariffs and other impediments to trade. The costs associated with a protracted negotiation process and compliance burden associated with preferential agreements, including complex and confusing rules of origin, are similarly under-reported.

In its 2010 report into bilateral and regional trade agreements, the Commission concluded that any increases in national income accruing from preferential agreements are likely to be modest. The Commission also concluded that current processes for assessing bilateral and regional agreements lacked transparency and tended to oversell the likely benefits. To help ensure that bilateral and regional trade agreements entered into are in Australia’s best interests, it recommended that a full and independent, arms-length assessment of a proposed agreement should be made after negotiations have concluded — covering all of the actual negotiated provisions. It recommended (amongst other things):

The Australian Government should improve the scrutiny of the potential impacts of prospective trade agreements, and opportunities to reduce barriers to trade and investment more generally. … It should commission and publish an independent and transparent assessment of the final text of the agreement, at the conclusion of negotiations, but before an agreement is signed (PC 2010, p. 312).

The expanding involvement of Australia in preferential trading arrangements adds to the imperative of this recommendation to ensure Australia maximizes the benefits from international trade and investment opportunities.

Blood Rights

'Illegitimate Borders: Jus Sanguinis Citizenship and the Legal Construction of Family, Race, and Nation' by Kristin A. Collins in (2014) 123 Yale Law Journal 2134 comments

The citizenship status of children born to American parents outside the United States is governed by a complex set of statutes. When the parents of such children are not married, these statutes encumber the transmission of citizenship between father and child while readily recognizing the child of an American mother as a citizen. Much of the debate concerning the propriety and constitutionality of those laws has centered on the extent to which they reflect gender-traditional understandings of fathers’ and mothers’ respective parental roles, or instead reflect “real differences” between men and women. Based on extensive archival research, this Article demonstrates that an important yet overlooked reason for the development of restrictions on father-child citizenship transmission was officials’ felt need to enforce the racially nativist policies that were a core component of American nationality law for over 150 years. At formative moments in the development the laws governing jus sanguinis citizenship – what is now called derivative citizenship – gender- and marriage-based domestic relations laws were enlisted by administrators, judges, and legislators to deny the citizenship claims of nonwhite children, especially those who were excludable under the race-based immigration and naturalization laws.

For those who study citizenship and immigration law, Illegitimate Borders illustrates the concrete and enduring ways that ideas concerning family, gender, and race have shaped the rules that govern formal membership in the American polity. For legal historians and scholars interested in the development of the administrative state and nation building, this article provides a window onto the central role administrators played in crafting American nationality law. For family law scholars, Illegitimate Borders highlights the ways that laws regulating illegitimacy – long used to create and maintain racial hierarchies within the American polity – were regularly used to shape the racial composition of the polity as well. Finally, for constitutional law scholars, the history charted here undermines the view that gender-asymmetrical jus sanguinis citizenship laws reflect natural and inevitable means of regulating parent-child derivative citizenship – an understanding that has been embraced by a majority of the Supreme Court. Instead, the historical sources reveal that gender-asymmetrical citizenship laws are the product of choices made by officials and shaped by contemporary norms concerning gender, parental roles, and – as illustrated in great detail – the official imperative to enforce race-based nationality laws. To speak of gender-based distinctions drawn in modern citizenship law as inevitable obscures their origins and elides the ways that such laws continue to play an illiberal role in the practice and politics of citizenship.

'Citizens As Customers' by Wolfgang Streeck in (2012) 75 New Left Review comments

Four decades ago, in a landmark Public Interest article titled ‘Public Goods and Private Status’, Joseph Monsen and Anthony Downs took up the question of why American society was, in the phrase coined by John Kenneth Galbraith, ‘privately rich but publicly poor’. The authors were not convinced by what they took to be the received explanation at the time: the ‘clever and nefarious advertising techniques’ used by large corporations to manipulate consumers, so that they would ‘buy private goods and services they do not relatively need or want’. Instead, Monsen and Downs suggested ‘a more fundamental factor’ was at work, accounting for the differential allocation of goods between the public and private sectors: a ‘desire’ on the part of consumers ‘for emulation and differentiation’, driving them ‘to create visible distinctions between large groups and classes, and, within such groups, more subtle distinctions of individuality’. Drawing on Veblen’s notion of conspicuous consumption in The Theory of the Leisure Class, as well as 1960s explanations of status-seeking consumer behaviour in American society, Monsen and Downs described this desire as ‘an intrinsic part of man’s character, evident to at least some degrees in all societies, past and present’—‘so fundamental that it can be considered a “law” of human nature.’

Why should this ‘law of consumer differentiation’, conceived as something close to an anthropological constant, affect the relative allocation of resources between the private and the public spheres of a modern political economy? The central point of Monsen and Downs’s argument is that what they call ‘government goods’—those produced or distributed by public authorities—are ‘designed with an eye to uniformity’. The standardization of army rifles is the most evident case in point:

Such goods are easier to produce and administer by the bureaucracy, and they accord with the ideal of equality which underlies the distribution of government goods. But by that very nature, such goods cannot be used easily for status differentiation which is a major function of most goods in advanced industrial societies.

In what follows, I shall make use of Monsen and Downs’s productive distinction between these two modes of provision, with inherent capacities favouring different kinds of goods: one mode is public and collective, administered by state authorities; the other is private and individual, mediated by commercial markets. But rather than comparing the two modes synchronically, or examining them within the eternal property space of economic anthropology, I will take a longitudinal view on the development of their mutual relationship. Moreover, instead of anchoring product diversification in a timeless human disposition towards status-seeking, I will relate it to a particular mode of utility maximization favoured in the transition from a need-supplying to a want-supplying economy, from sellers’ to buyers’ markets, and from poor to saturated to affluent societies, which was getting underway around the time (1971) that Monsen and Downs’s article appeared. In this sense, I will suggest a return to the ‘institutionalist’ explanation for the starvation of the public sphere, which Monsen and Downs rejected in favour of their human-nature theory.