The Morality of Opposing Release of GITMO Detainees

(Cross-posted on Tumblr, Jan. 15, 2015)

It was announced this week that a number of Republicans, Senator McCain prominent among them, are seeking to pass legislation to prohibit further releases. The Paris attack last week is being used as a pretext. The specter of detainees “returning to the battlefield” and engaging in new acts of terrorism is the primary argument.

It was announced just today that five more detainees were released from Guantanamo Bay, some 6 years after they were cleared for release by an inter-agency review, and as much as 13 years after they were initially detained. The majority of detainees still at Guantanamo Bay are not terrorists affiliated with al-Qaeda or any other terrorist organization, and of course have not been charged with any crime. But Republicans want to ensure their continued and indefinite detention. … Read more…

Re-Examining the ‘Myths’ About Japan’s Collective Self-Defense Change

(Co-authored with Bryce Wakefield – published in The Asia-Pacific Journal: Japan Focus, Sept. 8, 2014)

In a recent article in the Diplomat, Michael Green and Jeffrey Hornung claimed that critics of the Abe government’s “reinterpretation” of Japan’s constitution, to end the ban on the use of force for the purposes of collective self-defense, were “basing their opposition on myths about the change.” This allegation that resistance to the “reinterpretation” of Article 9 is based on nothing but “myths” is increasingly heard, and so it is worth examining their arguments, and the so-called myths that they purport to dismiss.

Green and Hornung argued that the changes to be made through the “reinterpretation” were actually slight and that the immediate implications were far less problematic than alleged. There is a grain of truth to this as it relates to imminent strategic consequences, but it also misses the essential point. Yes, at least in the short term, changes to the roles and the missions of the nation’s Self Defense Forces resulting from “reinterpretation” will probably be modest; and yes, the changes will not likely lead to militarism, regional adventurism, or various other scenarios that the article examines and dismisses. But this focus on the intended policy shifts misses the far more significant issues raised both by the unconstitutional nature of the move and the possible longer-term and profound systemic ramifications of the “reinterpretation.”

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 The Hyuga – DDH 16 – Hyuga class helicopter destroyer (credit-World Politics News Review)

It is precisely because the immediate strategic implications of the Abe Cabinet’s announcement will probably be relatively modest that the implications for constitutional practice in Japan should be the focus of the debate. Perhaps the changing strategic environment in Asia will require Japan to consider relaxing some of the constraints imposed by Article 9. However, so fundamental a change to the nation’s constitution should only come after broad debate and pursuant to formal amendment procedures as provided for in the constitution. As explained below, the so-called “reinterpretation” process has in fact weakened constitutionalism, the rule of law, and fundamental principles of democracy in Japan, an argument that Green and Hornung, and many other defenders of the “reinterpretation”, never seriously address. In short, the harm is to the Constitution, and so focus on strategy is no answer.

Let us re-examine some of the “myths” that Green and Hornung so quickly dismiss. … Read more…

When Should We Violate International Law in Order to Enforce It?

(Published in The Huffington Post, September 10, 2013)

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The looming military strikes on Syria are being justified as necessary to enforce and maintain a fundamental international law norm, namely the prohibition on the use of chemical weapons. It is quite clear that in the current situation, and in the absence of U.N. Security Council authorization, such strikes will also themselves violate a fundamental norm of international law, namely the prohibition on the use of force against sovereign states (see here for my own discussion of the legality issues).

At first blush the argument that one should violate the law in order to enforce it seems absurd, encouraging a counterproductive form of vigilante justice at best. But it does raise the question — are there times when we should violate international law in order to enforce it? Or more explicitly in the Syrian context: under what conditions and according to what criteria would it be justifiable to violate the fundamental rule prohibiting the use of force against sovereign states, in order to enforce the fundamental rule prohibiting the use of chemical weapons? Are there some practical responses that might provide some guidance for policy makers?

It must be acknowledged that there are some situations in which we accept that it would be justifiable to violate the law, or at the very least in which the circumstances would mitigate against our full condemnation of a violation. Such justification, in the form of exceptions, defenses, and reduced punishment, is indeed built into most domestic legal systems, and is part of most conceptions of justice. … Read more…