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.

The debate over climate change legislation is beginning to heat up. The American Clean Energy and Security Act was passed by the House and is now before the Senate. The debate on this issue typically takes the form of environmental concerns about global warming pitted against economic fears about the cost of reducing greenhouse gases. It is often framed in left-right terms. But as Americans think about whether to support this legislation, they should ponder the national security implications of climate change.

The recognition that global warming will increase the threats to our national security and place ever greater demands on our military is not new. The Bush administration acknowledged the issue in the 2006 National Security Strategy. A national security think tank comprising retired military officers, including Marine General Anthony Zinni, issued a report on the subject in 2007, identifying the various ways in which man-made climate change will directly affect national security.

Areas of the globe will be increasingly ravaged by drought, on the one hand, and flooding from extreme storms and rising sea levels on the other. These will cause mass migrations of refugees, the breakdown of societies and resulting conflict over reduced arable land, living space and other resources. The conflict in Sudan today is in part caused by the prolonged drought in the region. The massive movement of refugees that followed both the recent flooding in Bangladesh and the typhoon that hit Myanmar are other examples of such climate-related disruption. Climate change is seen as a “threat multiplier” that intensifies instability and sows the seeds of conflict.

Such instability and conflict will affect the United States. Armed conflict and massive political upheavals pose the risk of ever-wider hostilities and thus draw the world powers into the fray if only to contain it. Dislocation and instability will also lead to the failure of states, which become incubators for the development of other threats. Consider Somalia in the 1990s and again today. The failed state of Afghanistan in the 1990s provided a base for the planning and launching of the Sept. 11 attacks. The initial failure of Afghanistan was not caused by global warming, but a study conducted for the National Intelligence Council predicts that climate change raises the risk of many more failed states in the future.

The Pentagon and the State Department increasingly factor these expected ramifications of man-made climate change into their strategic planning and policy development. But the impact on national security should also be part of the broader debate on emissions policy. The greater and more rapid the climate change, the more quickly these threats will emerge – and the greater will be the impact on our national security.

Thus, efforts by the United States to reduce carbon emissions and to lead the rest of the world in tackling global warming are partly an effort to reduce the likely threats to our own national security. As the military strategist Sun Tzu wrote more than 2,500 years ago, the very acme of military skill is never having to fight a battle. General Zinni echoed this wisdom recently, saying “we will pay to reduce greenhouse gas emissions today … or we’ll pay the price later in military terms. And that will involve human lives.”

Some still cling to the tired argument that the link between human activity and climate change has not been “proven.” But in military and strategic matters, we do not wait until a risk has actually exploded into reality or wait for potential threats to be proven before developing our defenses. We defend against our best estimate of the future threat. So even if some holdouts continue to doubt the causes of global warming, prudence still dictates that we act now to respond to the risk.

Of course, the scientific community overwhelmingly endorses the position that humans are causing global warming and that we are near the point of no return. Meaning, unless we take action now, climate change will increasingly and radically multiply the threats to our national security, and the future drain on our military resources will dwarf the economic cost of taking action today. And we will pay in blood as well as treasure. That is something we would do well to remember when we consider the climate change bill before the Senate.

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.

The report of the “Panel on the Reconstruction of the National Security Legal Foundation,” commonly known as the Yanai Report, argues that a reinterpretation of Article 9 of the Constitution is necessary to permit Japan to participate in collective self-defense and collective security operations. Both activities are currently understood to be prohibited by Article 9, Section 1. The report reveals, however, a fundamental flaw that entirely undermines the legitimacy of the panel’s analysis.

The panel was created in April 2007 by then-Prime Minister Shinzo Abe to consider the need for a “reinterpretation” of the Constitution. The panel was composed of 13 prominent academics, former diplomats and government bureaucrats who were predominantly experts in international relations, politics and national security. It included only one constitutional scholar. The panel was criticized for being dominated by policy hawks who were on record as favoring constitutional revision. The chair, Yanai Shunji, a former ambassador to the U.S. and now a professor of Chuo University, submitted the panel’s report to the Cabinet in June.

Then Prime Minister Yasuo Fukuda showed little interest in the report or constitutional “reinterpretation.” But Prime Minister Aso reiterated while at the United Nations that Article 9 should be “reinterpreted.” Moreover, there is evidence that the Yanai Report has been well received within the bureaucracy, and is likely to exercise increasing influence within government. It should therefore be the subject of greater public scrutiny.

The report argues that because the international security environment has changed since the end of the Cold War, with increased threats and more diverse threats to Japan and the international society, the established interpretation of the Constitution is no longer appropriate. Rather, Article 9 is preventing the fulfillment of important security objectives.

Thus, it argues, the interpretation of Article 9 must be “revised” so as to permit the development of a more effective defense capability and more robust national security policies. This is necessary in order to implement the strategic imperatives of effectively defending Japan, supporting the U.S.-Japan alliance, which is key to Japanese security, and contributing to the international peace and security to which Japan’s security is tied. Boiled down to its essence, the argument is this: Japan faces more threats; therefore, the meaning of Article 9 must be changed so that we can better meet those threats.

The policy analysis is commendable, but as constitutional analysis, the argument is fallacious. The entire approach of beginning with an identification of the problems posed by current circumstances, moving to a determination of the policy responses necessary to resolve those problems, and then concluding with an interpretation of a constitutional provision so as to facilitate the adoption of such policies, is entirely illegitimate.

Constitutional interpretation, under any accepted constitutional theory, cannot begin with the consequences and policy ramifications of a given provision and then proceed to reverse-engineer the meaning of the provision in a manner designed to enable the realization of the desired policy outcomes. Such result-oriented reasoning is simply invalid. And notwithstanding assertions within the report to the contrary, this is precisely what the panel has done.

A constitution forms the fundamental legal framework of a democratic state. Its provisions commit future generations to operate within the confines of the system thus created, and according to the values and vision that it embodies. The meaning of a constitutional provision has to be determined by reference to the text of the provision itself, and an understanding of the purpose that it was designed to achieve. That process is assisted by reference to other parts of the constitution, and an examination of the history of the drafting and ratification of the constitution, informed by the legal principles that were drawn upon in the process.

The subsequent interpretation of the provision by the courts and other government bodies with the requisite constitutional authority, and its operation over time, are also important guides to interpretation, as consistency, stability and predictability in the operation of fundamental legal principles are crucially important to the rule of law.

There are different theories of constitutional interpretation, some more wedded to the text and the original intent of the framers than others. Some approaches emphasize that the constitution is a living institution that will evolve gradually over time through incremental developments in court interpretations, in accordance with the shifting values and realities of the nation. But none of them contemplate ad hoc and radical government reinterpretation of provisions to fit perceived policy needs.

If there is such significant change to the nation’s circumstances that the continued legitimacy of a constitutional provision is thrown into question, then the appropriate avenue is constitutional amendment. Changing circumstances and even changing values are obviously anticipated, and amending procedures are typically part of the constitutional system. The Constitution of Japan is no exception, and it has an amendment process that is less onerous than those of Germany and the United States.

Ad hoc “reinterpretation,” particularly by the executive, is just an end run around the legitimate amendment procedures of the Constitution.

If the view is that the majority of the nation would not support such an amendment, then that simply highlights the illegitimacy of trying to impose a new meaning on the Constitution that the majority of the people would disagree with. At root, the argument that “the situation has changed, so we must change the Constitution” is perfectly valid; the argument that “the situation has changed, so the meaning of the Constitution must have changed” is not.

If the government can simply “reinterpret” Article 9 due to changing circumstances, why not other provisions? As the number of immigrants in Japan increases in response to the challenges of an aging population, could the government not also “reinterpret” Article 14 as no longer prohibiting discrimination against foreigners? A “reinterpretation” of any one provision puts the entire constitutional framework at risk. Of course, the courts have the ultimate authority to interpret the Constitution and could reject such “reinterpretations,” but the Supreme Court of Japan has historically demonstrated such deference to the government that it cannot be relied upon in this context.

Consider the issue of guns in the U.S. Many Americans, and probably most of the rest of the world, think it misguided to have a constitutional provision guaranteeing an individual right to possess firearms in a country that has the highest homicide and violent crime rates in the industrialized world. The provision itself, the Second Amendment, was ratified more than 200 years ago. It is considered by many to be anachronistic and a significant obstacle in efforts to reduce the modern scourge of gun violence in America.

Yet it is utterly inconceivable that the president or Congress could announce that it was “reinterpreting” the Second Amendment so as to permit the legal prohibition of all firearms. And the Second Amendment is much more ambiguous and has a much more complex history than Article 9. It would be open to argue, as the District of Columbia did recently before the Supreme Court, that based on valid principles of constitutional construction, an alternate interpretation is more legitimate. But governments cannot simply claim that the Second Amendment now means something different because guns kill too many people in America.

The Yanai Report provides an important analysis of the changing international security environment, and provides a concise articulation of Japan’s strategic policy requirements. It asks important questions regarding whether it is possible for Japan to meet its national security objectives within the constraints of Article 9.

It also offers significant arguments that could be legitimately advanced in favor of constitutional amendment. The report even provides fairly detailed and impressive recommendations on the legal limits that should be created to govern the exercise of military force that would be made possible by its recommended changes. The report has considerable value as a policy document.

However, its conclusion that Article 9 must thus have a meaning different from the long-established interpretation is simply invalid. The panel makes errors in some of the details of its interpretive arguments, but these are dwarfed by the illegitimacy of the entire approach.

As such, notwithstanding the potential value of its policy analysis, the report ought not to have any influence whatsoever on the meaning of the Constitution. And government attempts to follow it ought to be challenged.