From banking to healthcare, looking to Canada has become fashionable of late. It is also an example on equality rights. I served as an officer in one of the first Canadian warships to deploy with women among its crew. That was only after a spirited campaign waged by the military against the integration of women in combat roles, in part on the basis that they would undermine the cohesion and fighting effectiveness of combat units. There would be privacy issues, sexual tension, an erosion of the essential masculine warrior ethos, and ultimately a degradation of military effectiveness.

All of this was proved false of course. It was proved false again a few years later, in the early 1990a, when the Canadian military was again forced to adhere to the country’s constitutional values and open its ranks to openly gay and lesbian members. To the extent there was any disruption (and most studies have found there to have been none), it was minor and temporary, as the military sub-culture adjusted very quickly to the new reality – a reality that better conformed to the values of the society the military is sworn to defend.

The experience of Canada, Britain, Israel, Germany, Australia, and many other democratic allies of the United States (the troops of which are fighting alongside Americans in Afghanistan) have demonstrated that there is no significant impact on military effectiveness by the integration of gay and lesbian troops. Quite the contrary. As with the admission of women, and racial minorities before that, it broadened the recruitment base and increased the number of highly skilled personnel available to the military.

Moreover, to the extent that some think there might still be some disruption of cohesion, it is important to note that the cause would necessarily be the underlying prejudice and homophobia within the military sub-culture. To argue against integration is to suggest that such prejudice should be protected and nurtured. That is profoundly inconsistent with the values of a democracy, and utterly untenable. It was rejected decades ago when the discrimination against non-white troops was terminated.

Even putting aside questions of motive or rationale, the policy denying people the opportunity to serve in the military because of their sexual orientation constitutes unjust discrimination that is entirely at odds with the fundamental right to equal protection. The right to be treated as an equal, and not be discriminated against on the basis of shared but personal characteristics that are tied to one’s sense of identity and dignity, is a right that is at the foundation of all liberal democratic systems, and a bedrock of international human rights.

The violation of that right simply cannot be justified in this context. Not only is there no important purpose served by the policy, given the compelling evidence that integration would have no significant impact on military effectiveness, but the disproportionate harm it causes is extreme. As compared to a marginal and temporary impact at the very most (and most studies of such transitions in other countries demonstrate that there is no impact at all), the discriminatory policy not only injures those gay and lesbian members who are denied entry or are drummed out of the military. Rather, the policy perpetuates the societal prejudice against all homosexuals. The policy effectively communicates to the entire society that homosexuals are less worthy of our respect and concern than the rest of Americans. It signals that gays and lesbians cannot be trusted to serve in the defence of the nation.

But the harm does not even end there. It not only causes egregious harm to all gay and lesbian members of our society, but it erodes the normative power of the right to equality itself, and thereby undermines the very values of our democracy. It casts the United States as a backward nation relative to other liberal democracies in the protection of equality rights, and human rights more generally.

We used to quip in the Navy that “we are here to defend democracy, not to practice it.” Nothing could be further from the truth. A military cannot defend a democracy while doing violence to the democratic values that constitute the very foundation of the nation.

President Obama, in accepting his Nobel Prize, spoke in lofty terms about the requirement that all nations, weak and strong, must adhere to the legal standards that govern the use of force. He noted that the U.S. had played a leading role in creating that legal framework. And he went on to underline that the U.S. too must respect international law: “America cannot insist that others follow the rules of the road if we refuse to follow them ourselves. For when we don’t, our action can appear arbitrary, and undercut the legitimacy of future intervention — no matter how justified.”

And yet the absence of any public discussion or analysis of the legal issues raised by America’s efforts against terrorism is striking. Whether it be torture and extraordinary rendition, military commissions, the targeted killing by drone attacks in Pakistan, the planning of CIA assassination squads, the large number of civilian deaths in air strikes in Afghanistan, or even the prospect of military strikes in Iran, all of these raise significant and complex international law issues. But you will not find any meaningful discussion of those issues in the media, or indeed in the talking points, blogs, or analysis produced by most liberal or progressive organizations.

Consider the contrast between the media coverage of such topics and the analysis of the issues surrounding the Israeli operations in Gaza earlier this year. There were countless articles examining the legal significance of the claims that the Israeli use of force was disproportionate, that civilians and civilian structures had been targeted, and that Israeli forces were using illegitimate munitions. The coverage was often sympathetic to the Israeli position, but there was nonetheless an examination of the legal issues involved. In contrast, when in the same month American forces killed Afghani civilians in air strikes, there was no such analysis – the entire discussion revolved around the strategic and political ramifications of killing civilians.

Liberal advocates say in private that they did not want to raise the international law arguments against torture, because such arguments “do not play well” in middle America. So the focus of the debate in this country was on the ineffectiveness of torture, and how counterproductive it could be. That is a dangerous argument to stake one’s entire position on. The fact is that the prohibition of torture is one of the very few peremptory norms in international law (known as jus cogens norms) – meaning it is one of the most bedrock principles of international law that nations may not derogate from under any circumstance. The other such norms include the prohibitions on slavery, genocide, and piracy. Yet in America, the debate was over when and under what circumstances we might derogate from the norm, and liberals were afraid to raise the law, because it does not “play well.”

The danger in all of this is that if liberals and progressives are afraid to make the argument for international law and the rule of law, then the argument will not get made. Progressives, afraid of looking weak, abandon the defense of the rule of law in favor of functional arguments. And so the country lurches ever rightward, in a one-way ratchet effect, with crucial principles being left by the side of the road as political liabilities.
Yet this country is supposed to be a “nation of laws” that preaches to the world the importance of the rule of law. These principles are supposed to be foundational, part of the constitutional DNA of the nation. They are part of the identity that is presented to the rest of the world. It cannot reject international law without doing violence to its own notions of the importance of law and the rule of law.

Moreover, as President Obama said, if the U.S. does not respect and observe the international legal standards, then it will lose its legitimacy and moral authority in the world. And that means that the extent to which American policy conforms to international law, from military commissions to targeted killings in Pakistan, must be part of the national discourse. So progressives have to engage the legal issues more, both to help preserve the country’s identity as a nation of laws, and to help ensure that we at least understand whether policy complies with the law.

The current debate in the United States over the war effort in Afghanistan contains no shortage of opinions on the best strategy for defeating the Taliban, but far too little discussion regarding the actual objectives of the war. The famous Prussian strategist Carl von Clausewitz wrote about war that “the political objective is the goal, war is the means of reaching it, and means can never be considered in isolation of their purpose.” But in the current debate on Afghanistan we risk doing just that — arguing about strategy without a clear understanding of our goals.

So what are the objectives in Afghanistan? What is the purpose for which we are fighting this war? The problem is that they have shifted over time. At the outset, the coalition invasion of Afghanistan was an act of collective self-defense in response to the 9/11 attacks. The objective was to prevent further attack by disrupting and destroying al-Qaida forces operating out of Afghanistan, and overthrowing the Taliban regime that supported them.

These objectives were largely achieved. The coalition has remained in Afghanistan under U.N. authority to establish security in the country, in the face of a simmering insurgency. Now we are debating the best strategy for suppressing an increasingly revitalized insurgency. But before arguing about strategy, the question should be why it is in our national interests, and indeed in the interests of each of the coalition members, to make crushing the insurgency the primary objective.

The two most oft-repeated reasons for the necessity of suppressing the insurgency (aside from vague talk about “winning”), are that doing so would deprive al-Qaida of a base in Afghanistan, and that it would prevent instability and insurgency spreading to Pakistan. Both of these rationales, however, depend on assumptions that are questionable.

First is the assumption that depriving al-Qaida of a base in Afghanistan is essential to our wider efforts against al-Qaida. According to the U.S. national security adviser, Gen. James Jones, al-Qaida is already “very diminished” in Afghanistan. Most reports indicate that al-Qaida’s top leadership in Afghanistan has been decimated, and that the survivors are largely in Pakistan and elsewhere.

This underlines the fact that al-Qaida is a decentralized transnational terrorist movement, not a guerrilla army. Its members can just as easily operate from Yemen, Somalia, Sudan or any number of other bases, often simultaneously. Denying al-Qaida a base for operation may seem a reasonable objective, but large-scale military operations against local forces in every country in which al-Qaida could potentially operate is neither feasible nor would it be effective. It cannot, therefore, be the primary purpose of a counterinsurgency war in Afghanistan.

Part of the problem is that we continue to conflate al-Qaida with the Taliban and other militant forces, both in Afghanistan and in Pakistan. The strategic objectives, methods, and the core ideology of al-Qaida are different from those of the militant forces we are fighting in Afghanistan.

We are fighting a local nationalist insurgency that seeks to gain political power. In general the Taliban and other militant groups, unlike al-Qaida, do not view us as ideological enemies of Islam to be fought on a global stage, but rather they view us as being similar to the British and Soviets of the past, foreign invaders to be driven out. And there is increasing evidence that were the Taliban of today to regain power, it would be wary of again providing the same level of support to al-Qaida.

Turning to the goal of preventing nuclear-armed Pakistan from falling to radical Islamic fundamentalists, the assumption that Pakistan is vulnerable to the spread of radical forces from Afghanistan is similarly questionable. To begin, the Pakistani military is modern, professional, and large (700,000 active duty troops), and is the most disciplined institution in the country. Despite recent high-profile attacks on the military, and the military’s reluctance to use force against its own citizens, the Pakistani Army has shown itself capable of acting effectively against the militants when it has chosen to do so.

We also tend to conflate the Taliban with militant forces within Pakistan, and simplistically view them all as radical Islamists. But they are not the same, and there are tensions and conflicts among them too. There has been no indication that a Pashtun-dominated Taliban could gain control over a country where 1 in 3 people are Punjabi. Ethnic loyalties still dominate Pakistani life and despite isolated attacks in the Punjab, the Taliban has never had a significant presence there. The recent terrorist attacks in Pakistani cities should not be taken as evidence of any desire to overthrow the state, but rather, should be understood as a response to the military operations in the tribal areas. Looking to the historical record, when the Taliban ruled Afghanistan in the 1990s, the situation did not create any instability or cause the spread of radical ideology within Pakistan. And today, according to a recent Gallup Pakistan poll, a full 41 percent of respondents favored military operations against the Taliban.

Beyond denying al-Qaida a base in Afghanistan and preventing the spread of instability to Pakistan, there may be other possible reasons why it is in our interest to maximize the coalition efforts to crush the Taliban insurgency. And it is certainly not in anyone’s interest for NATO forces to withdraw from Afghanistan expeditiously. But if we are going to get the policy right, we must start with the issue of our objectives and the overall purpose for our being in Afghanistan. Only then can we have a meaningful discussion about strategy.

As tensions mount and there is increasing talk of shooting down the “debris” from a pending North Korean rocket launch, there has been little discussion of what would happen if Japan shot down the rocket instead. While there is great public support for action, there should be some pause to consider the constitutional and legal issues of Japan’s military deployment in these circumstances.

North Korea continues to prepare for the launch of a an experimental satellite delivery system, widely suspected of being a Taepodong 2 long-range ballistic missile, scheduled for some time between April 4-8. While North Korea touts the launch as an attempt to put a satellite in orbit, many view it as a missile test in violation of a 2006 U.N. Security Council resolution. North Korea has provided notice of the flight path, which will take the missile over Japan and into the middle of the Pacific.

It was announced on March 28, that Japan’s Minister of Defense had issued orders to the Self-Defense Forces (SDF) to deploy Ballistic Missile Defense (BMD) assets (the land-based Patriot Missile batteries or PAC-3, and the maritime Aegis Cruiser based SM-3 systems) to shoot down “any part of a North Korean rocket that might fall toward Japanese territory” (link). The order, authorized by the prime minister, is said to be based on Article 82 of the SDF Law.

The provision provides the authority to order the SDF to take measures to destroy missiles or other falling objects (other than aircraft), which are suspected to be heading for Japanese territory and which could cause serious harm to persons or property (link). Others have written about the considerable technical difficulty that the SDF might encounter in trying to intercept actual debris from the first stage of the rocket, which is supposed to separate and fall to earth prior to the rocket passing over Japanese territory (link).

An equally difficult problem, however, may be distinguishing between debris and the rocket itself. And indeed, it is not so difficult to imagine a temptation among some in the chain of command to rely on that difficulty, and to take a shot at the rocket itself. Shooting down the missile itself, under cover of confusion, might be seen as sending a powerful message regarding both Japan’s BMD capability, and its political will to use military force to defend Japanese territory.

Therein, of course, lies the legal problem. The missile is expected to be at an altitude of 600 – 1000 kilometers above the Earth by the time it is passing over Japan (link). In other words, it will be in what is generally considered, for legal purposes, “outer space”. While there is no exact definition of the demarcation between a state’s territorial air-space, over which it may exercise complete control, and the lower limits of outer space, the most accepted range is 160 kilometers (or 100 miles). That is the lowest altitude that can sustain free orbit.

Outer space is, under international law, the “province of all mankind”, and all nations have both the right and an interest in the exploration and use of outer space (link). While states may control absolutely and deny access to the airspace over their territory, they have no control over, or right to interdict, the passage of vehicles through the area of outer space that lies above their national territory.

If Japanese forces were to fire on and destroy the North Korean missile in its trajectory over Japan, it would first of all exceed the authority conferred by Article 82 of the SDF Law. It would also be a violation of the international law governing the use of outer space. The fact that the launch might itself be in violation of a U.N. Security Council Resolution would not alter that fact. Moreover, it would constitute the use of armed force against the vessel of another country, and that would have both international law and constitutional ramifications.

Indeed the constitutional issue is the most important in terms of Japan’s internal legal order. For this use of armed force against the vessel of another country in an international common area (that is, outer space), would most certainly constitute a violation of Article 9 of the Constitution. Paragraph 1 of Article 9 provides (in part) that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.”

There can be no doubt that there is an international dispute among North Korea on the one hand, and Japan, the United States, South Korea and indeed the rest of the international community on the other. The dispute centers on North Korea’s continued efforts to develop nuclear weapons and delivery systems. It is a dispute that has been the subject of U.N. Security Council Resolutions, including Resolution 1718 of 2006, which prohibits North Korea from any further ballistic missile testing (link). Shooting down a rocket that is widely suspected to be a disguised ballistic missile test would constitute a use of force as part of efforts to resolve this international dispute, and thus would violate Article 9.

For those who might be tempted to feebly raise the issue of self-defense, in these circumstances there would have to be very clear and compelling evidence that the trajectory of the rocket was such that it was certain to hit Japanese territory before any claim of self-defense could gain credence. The preliminary evidence is that the missile is programmed for a trajectory taking it over Japan and into the Pacific, and that it is indeed carrying a satellite rather than a warhead (link).

The launch by North Korea is a most unwelcome provocation, and there are all kinds of arguments about how the international community should best respond. But a miscalculation by Japanese forces in the frenzy over preventing “debris” from falling on Japanese territory, could not only gravely complicate the international situation, but also create serious legal and constitutional problems for Japan.

Once again the issue of Japanese contributions to international security efforts is the subject of tortured debate. And once again the proposed government policy, and aspects of the debate itself, reveals fundamental misunderstanding of the relationship between Article 9 of the Constitution and the relevant principles of international law.

This time, the issue relates to maritime piracy off the coast of Somalia, and the proposed deployment of Japanese naval vessels to the area. Predictably, the issue has triggered debate over the effect of the war-renouncing provision of the Constitution. A careful analysis, however, would suggest that the Article 9 prohibition on the use of force would not apply to the deployment of naval forces, or their use of weapons, to protect shipping from pirates in international waters.

Yet, it is clear that the government policy is being formulated under the shadow of Article 9. While the ships are initially being deployed under the authority of Article 82 of the Self-Defense Forces Law, the government has drafted and submitted to the Diet a permanent anti-piracy law, and it is around this bill that debate has focused.

Opposition to the bill has centered on questions of whether the Maritime Self-Defense Force (MSDF) vessels would be permitted to assist foreign ships, what degree of relationship with Japan would be necessary to justify MSDF intervention and under what circumstances weapons could be employed against pirates.

This is quite clearly due to the influence of the government interpretation of Article 9 as prohibiting any use of force by Japan except for the purposes of “individual self-defense” — meaning the direct defense of Japan. Similarly, the opposition to the policy is being shaped by Article 9.

The criticism is that any use of force by the MSDF to defend ships of other nations would somehow constitute “collective self-defense,” which is understood to be prohibited by Article 9. Similarly, it is argued that any use of weapons for purposes other than strict self-defense would be prima facie illegitimate.

But these concerns fail to consider the true nature of the prohibition in Article 9. Paragraph 1 of Article 9 states (in part) that “the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as a means of settling international disputes.”

The words “as a means of settling international disputes” qualify and limit the scope of the prohibition. The provision does not purport to prohibit the use of force of any kind whatsoever by the organs of the state. For instance, it clearly does not prohibit the use of force for ensuring internal security, and the Japanese police can legally use force to break up riots or armed insurrections.

The language and the drafting history of the provision clearly suggest that it was aimed at prohibiting participation in armed conflict, principally with other sovereign nations, as a means of furthering the foreign policy of the state and resolving disputes with or between other nation states. In short, the use of force contemplated by the provision is the use of military force employed against the territory and people, and the armed forces or other agents, of another state.

So the question then, is whether the deployment of the MSDF, and the possible use of armed force by the MSDF, to help prevent piracy in the Gulf of Aden, falls within the scope of this constitutional prohibition of the use of force. To answer that question, one has to understand the concept of “piracy” in international law.

Piracy has been an international crime under the Law of Nations for several centuries. The prohibition of piracy under international law is generally understood to have risen to the level of jus cogens (compelling law), meaning that it is one of the few peremptory norms from which no country may derogate.

The International Court of Justice has confirmed that pirates are to be considered the enemy of all mankind, and that any nation may, in the interest of the entire world, capture and punish those engaged in piracy.

Piracy, under most generally accepted definitions, constitutes illegal acts of violence or any other act of depredation, committed for private ends by the crew of a private ship (or aircraft), that is directed against another ship (or aircraft) on the high seas or in a place outside the jurisdiction of any state.

The key elements of this definition are that it is a criminal act, perpetrated by private individuals for personal ends, outside of the jurisdiction of any state (which, incidentally, is quite different from non-state actors engaged in terrorism, a quintessentially political activity, typically conducted within the jurisdiction of a state, and often supported or harbored in another state).

Any use of force against pirates in international waters, either to defend private shipping from their attacks or even to apprehend them and bring them to justice, cannot be construed as a use of military force for the purpose of settling international disputes. Such action does not involve the application of force against the agents of another state, the engagement in armed conflict with the forces of another state, or any other act of war. The laws of war under international law would not be triggered by the use of force against pirates, and it would not apply to such conduct.

In short, such use of force against pirates, in international waters, cannot fall within the scope of the prohibition in Article 9 of the Japanese Constitution. Now, to be sure, the MSDF would have to take care that the target of their activity legitimately fell within the definition of “pirates,” and that they were in international waters. Conducting activities in the territorial waters or on the shores of Somalia, for instance, would raise entirely different issues.

In the past, failure to sufficiently understand the applicable international law, and the relationship between such principles of international law and the proper interpretation of Article 9, has resulted in Japanese participation in international military operations that arguably violated the Constitution.

It may be understandable, therefore, that some in Japan will be apprehensive that the deployment of the military for any reason may open the door to further unconstitutional activity. And, indeed, there is a real and significant risk that such deployments of the military could be used cynically by the government to undermine the powerful norms within Japan against the use of military force.

Those concerned about this risk may be tempted in these circumstances to invoke the Constitution as a bar against the deployment against pirates. But that would be dangerously counterproductive. It would simply contribute to a process in which political forces exploit constitutional arguments for instrumentalist purposes, whether they be cynical or benign, leading to confusion and disagreement over the meaning of the Constitution, and the overall weakening of its authority.

There may be room for debate over the wisdom of deploying naval forces to defend against pirates on the high seas. The Constitution should not be part of that debate. One of the key defenses against government infringement of the actual constitutional principles is to ensure that the scope and meaning of the principles remain clearly understood and widely shared. And the government ought to ensure the integrity of the Constitution by applying its provisions consistently, and in accordance with that understanding, in the shaping of national policy.