The Law and Congressional Red-Lines on Iranian Nuclear Talks

(Published in the Truman Doctrine blog, July 11, 2012)

The Moscow round in the talks with Iran over its nuclear program, in which the world powers are ultimately trying to prevent Iran from developing nuclear weapons, collapsed last month. The next round of talks are scheduled to begin soon. This has renewed claims that further talk is futile and harsher measures are required, and counter-arguments that diplomacy is failing precisely because the U.S. refuses to make reasonable and necessary concessions in the negotiations.

One of the central issues in this debate is whether the U.S. should “permit” Iran to enrich uranium for non-military purposes. Israel and its supporters in Congress have pressed for a categorical “red-line” in the negotiations, according to which Iran should be prohibited permanently from any enrichment whatsoever. Others have responded with powerful policy and strategic reasonswhy, on the contrary, a “concession” to acknowledge Iran’s right to develop a peaceful nuclear program, is necessary for there to be any meaningful chance of success in the negotiations. Past U.S. policy has, of course, been that Iran has the right to peaceful nuclear energy development, and the proposed red-line would be a departure from past policy.

The claims against Iran are, of course, framed largely in legal terms — and there should, therefore, be a careful consideration of the legal principles that relate to this central issue of Iranian enrichment. And an analysis of the law suggests that a U.S. failure to acknowledge Iran’s right to peaceful enrichment would not only be unprincipled and perhaps unwise, but it would be fundamentally inconsistent with the governing legal regime – the legal regime that is the foundation for our objection to Iran’s program to in the first place. … Read more…

LDP’s Dangerous Proposals for Amending Antiwar Article

(Published in The Japan Times, June 6, 2012, and in Comparative Constitutions blog, June 11, 2012)

The Liberal Democratic Party (LDP) published its new draft constitutional amendment proposal in late April. The draft reflects a number of significant changes above and beyond those advanced in the proposal unveiled by the LDP in 2005. The proposal includes a complete overhaul of Article 9, the war renouncing provision of Japan’s so-called Peace Constitution. These changes to Article 9 are important, and on balance, dangerous. The nature of these proposed revisions, and how they would likely operate, deserve to be examined in some detail.

Before addressing the changes, it is helpful to recall the meaning of the current provision. Article 9 has two paragraphs, which contain three essential elements. Paragraph one provides 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. This represents an incorporation of international law principles on the use of force into the Japanese constitution, to constrain future governments of Japan from ever again dragging the nation into a disastrous war of aggression.

Paragraph two contains two clauses. The first provides that Japan will never maintain land, sea, and air forces, or any other war potential. This is a unique provision, purporting to prohibit the maintenance of any military forces, and was designed to reinforce the prohibition on the use of force by making such use of force impossible. The second clause of paragraph two, which provides that the rights of belligerency will not be recognized, is even more novel. This was the incorporation of principles of international humanitarian law relating to belligerency, to further ensure that as a matter of constitutional law Japanese forces would not enjoy the rights and privileges of combatants in armed conflict. … Read more…

Debating Canada’s Objectives and Role in Libya

(Published in the Huffington Post (Canada), June 14, 2011 – slightly revised)

width="210"Tomorrow, parliament will debate whether to extend the participation of the Canadian Forces in the NATO operations in Libya. First, it should be said that parliamentary approval of the operation is essential. Legislative oversight of the executive’s decisions to go to war is crucial for both democratic accountability and for reducing the likelihood of involvement in unwise or illegitimate adventures.

Canada is one of the few liberal democracies that does not have a constitutional or legislative requirement for such approval, but tomorrow’s debate is part of an increasingly established practice in Canada of parliamentary involvement in decisions to engage in armed conflict.

In order to make the debate meaningful, however, parliament must take seriously the issues before it. Members have a duty to rigorously interrogate the government’s motives, and to question the rationales advanced for continued involvement in the conflict. It is not enough to accept platitudes and vague assertions about Canada’s duties as an ally. Rather, there must be hard questions asked about the continued legitimacy of the operation, what exactly the objectives are, and how precisely our involvement advances the national interest or is consistent with our national values.

It should be recalled that the initial objective of NATO’s operation was to prevent a pending humanitarian disaster, when Libyan armed forces were poised to take Benghazi. The United Nations Security Council authorized, in Resolution 1973, the use of force to impose a no-fly zone, and to take all necessary measures to protect civilians. It was a classic humanitarian intervention, with the explicit objective of, and authority limited to, protecting civilians. … Read more…

The Fallacies of the Torture Debate

(Published in The Huffington Post, May 19, 2011)

The torture debate has once again seeped into the public discourse in America, and it has us focusing once again on all the wrong issues. Suggestions have been made that information that Khalid Sheikh Mohammed provided while being water-boarded helped lead the CIA to bin Laden’s door. This has prompted the likes of John Yoo (author of the notorious torture memos signed by Jay Bybee) and former Attorney General Michael Mukasey, to argue that the case for water-boarding has been vindicated. Others, including Senator John McCain, have refuted the assertions that the trail to Bin Laden can be traced back to so-called “enhanced interrogation techniques.” In short, the debate is once again centering on the question of whether torture is effective.

First, it should be noted that the debate misconstrues the effectiveness argument. Few people would assert that torture can never produce so called “actionable intelligence.” The point, made extensively by FBI interrogators and other specialists in the field, is that torture produces less reliable intelligence than traditional (and lawful) methods of interrogation, since the victim will say anything to avoid the pain, some of it true but much of it not, creating the problem of trying to distinguish between fact and fiction. Moreover, a policy of torture creates longer term strategic costs in the effort to win over hearts and minds, which ultimately makes it counter-productive and ineffective from a broader perspective.

The key point, however, is that effectiveness is entirely beside the point. We should oppose and reject the use of torture even if it could be shown that it is effective. To his credit, John McCain also makes this argument. For those who do oppose torture, it is a profound mistake to be engaging in this debate about effectiveness. First of all, the arguments get reduced to the overly simplistic and binary question of whether it ever works, which is of course vulnerable to attack — just one example of torture producing one piece of accurate intelligence tends to undermine the entire position. Hence the debate today. But more importantly, engaging in this debate tends to suggest that if torture were found to be effective, then perhaps we might have to use it. But we would not, or should not, so why get trapped in this debate? We ought to stick to the real reasons for our objections.

Read more…