Interview in AERA Magazine on Art. 9 and Revisionist History

This interview, titled (roughly) “Speak Out Against the ‘It Can’t Be Helped’ Way of Thinking”, was published in the August 10, 2015 issue of AERA, Japan’s highbrow weekly newsmagazine. It was a special issue devoted to the 70th Anniversary of the end of World War II. It unfortunately attributes some of the comments I made in relation to Article 9 of the Constitution, and how the public should respond to efforts of the current government to reinterpret that provision, to my views on Prime Minister Abe’s tendencies towards revisionist history.

Aera-Interview-web

Media Should Stop Legitimizing Abe’s Article 9 ‘Reinterpretation’

(Published in The Japan Times, Jun. 13, 2015).

3 Con Law Scholars

Three of Japan’s preeminent constitutional law scholars testified on June 4 that the government’s recently tabled national security bills were unconstitutional. The proposed legislation is intended to implement the Cabinet resolution that purports to “reinterpret” the war-renouncing provision of the Constitution. The legal scholars’ testimony was greeted with apparent surprise in the media, as though it had not occurred to anyone until that moment that the draft bills might be unconstitutional.

The media reporting on the so-called reinterpretation has reflected a profound misunderstanding of the constitutional effect of the Cabinet resolution ever since it was issued last summer. The press has typically stated that the meaning of Article 9 had been “changed” or “revised” by the Cabinet resolution. That is simply wrong as a matter of law. It is important that the media understand that the Constitution was not amended or changed in any way by the Cabinet resolution, and that laws must continue to be judged against long established interpretations of Article 9. Otherwise, misleading and mistaken reporting on the issue could contribute to making an illegitimate attempt at reinterpretation a de facto amendment. … Read more…

The Torture Photos and U.S. Double Standards on Freedom of Speech

(Cross-posted from Tubler.com, Jan. 25, 2015).

abughraibhoodJameel Jaffer had an excellent post on Just Security earlier this week, examining the apparent inconsistency in U.S. policy on freedom of speech. On the one hand, the U.S. government argued against self-censorship in response to threatened violence, in the context of Charlie Hebdo, and Sony’s distribution of the “The Interview”. On the other hand, the U.S. government was in Federal Court this week resisting requests that photographic evidence of U.S. detainee abuse and torture be made public.

The argument of the government is that disclosure of the pictures would make them available for use in propaganda, and would likely lead to violent reactions. In essence, the government wants to suppress information to prevent possible violent reprisals. Jameel Jaffer dismisses this argument well:

This is not a good argument for the suppression of the photographs. The same kind of argument could as easily have been made with respect to the Abu Ghraib photos, the Rodney King video, or the Eric Garner video. It could as easily have been made with respect to the Senate’s torture report—and, in fact, it was. And it’s not just that the argument gives those who threaten violence a veto over political debate; it gives the government a veto, too. To accept the argument, at least in the absence of a specific, credible threat directed against specific people, is to give the government far-reaching power to suppress evidence of its own misconduct. And the worse the misconduct, the stronger would be the government’s argument for suppression.

Read more…