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.

So what are the real reasons for rejecting torture? The first is that it is abhorrent to both the principles underlying the rule of law, and our understanding of fundamental human rights — both of which are cornerstones in the foundation of our democracy. The common law rejected the practice of torture, and the admission of any evidence procured by torture, as early as the fifteenth century. It did so not only on the grounds that the information so obtained was inherently unreliable, but also because it was felt that the practice of torture would degrade all those who engaged in it, ultimately undermining the authority and effectiveness of the judicial system itself. And indeed, the continued use of torture by the Star Chamber in the sixteenth century became one of the central issues between the Crown and Parliament, with torture being cited as being “totally repugnant to the fundamental principles of English law… and repugnant to reason, justice, and humanity.” That view, of course, informed the drafting of the 8th Amendment of the U.S. Constitution.

With the development of human rights law in the twentieth century the prohibition against torture was embedded in international law conventions. This reflected the recognition that to torture another human being is not only to treat them as being less than human, and to destroy aspects of their physical and mental integrity, but it is also to degrade and undermine the humanity of those who perpetrate the torture. The U.S. was a harsh critic of regimes that engaged in torture in the past. The prohibition against torture has become one of only four or five “peremptory norms” in international law — norms that apply to all states and which cannot be derogated from by any state, for any reason. The U.S. helped to champion these norms and develop the treaty regimes that support them. The other peremptory norms include the prohibitions against genocide, slavery, crimes against humanity, and piracy. Would we really countenance a debate on the possible effectiveness of genocide or slavery?

The purported moral arguments trotted out in support of torture are in fact fallacious. In the context of the famous ticking time bomb hypothetical, it is argued that it is surely moral to torture one person in order to save the lives of thousands — that the right to life trumps the right to physical integrity and security of the person. The problem of course is that this is a false construct. We will virtually never be in a situation in which we know for certain that a person has specific information which, if obtained through torture, we know will definitely save the lives of a specific set of people. At most we will think that we know that the person might have information, which may help us save some undetermined lives. Like the CIA officials who “knew” that Abu Zoubayidah was a high-level al Qaeda operative, certain to have crucial information, which would absolutely save American lives, when they ordered him water-boarded 83 times – only to discover that he was never even a member of al Qaeda, and that he had no such information. As a matter of morality it is not justifiable to torture one person on the mere possibility that it might save the lives of some unknown people, and a hypothetical that will virtually never occur is no basis for a public policy.

In short, we should reject torture because it is contrary to the fundamental principles underlying the rule of law and our understanding of human rights. It is utterly inconsistent with the values that form the foundation of our democracy. It will degrade us as a people. The experience of countries that have in the past century adopted the use of torture for “national security” purposes, illustrate how the policy seeps into other areas of the judicial system, corroding the integrity of criminal justice and undermining the authority of the state. The proponents of torture are no doubt animated by the desire to protect the people and interests of the United States. What they fail to understand is that the strategic objective of terrorism is to gut our value system and destroy the foundation of our democracy. Engaging in torture only helps them achieve their aims. Frankly, even having the debate is harmful to our national interests. We cannot champion the rule of law and espouse the benefits of democracy while we argue at home about whether to torture people.

Since the end of the Cold War, and through the era of the so-called “Global War on Terror,” Japan has struggled to define and develop a meaningful role for itself in the world of international politics. Constitutionally constrained from participating in collective security operations that involve the use of force, it has sought to cast itself as something of a “power for peace.”(1) In its handling of the crisis in Sri Lanka, however, it appears to be losing its way. While providing a great deal of aid to Sri Lanka, Japan is failing to exercise its considerable influence to help reduce the causes of further conflict, and risks not only undermining its own ambitions but also significantly harming the chances for peace and justice in Sri Lanka.

Almost exactly twenty years ago, the run-up to the Gulf War of 1991 created a major crisis within Japan that has had an enduring impact on the country’s politics and policy. The Japanese government came under enormous pressure to contribute to the international effort to resist the aggression of Iraq, in a region from which Japan obtained most of its energy supply. But Japan was constrained by its Constitution from any involvement in the military operations. It ended up providing support in other ways, including giving US $13 billion to the effort, more than any other country. Yet it was scorned (unfairly) for its “cheque book diplomacy,” received little gratitude for its help, and came out of the crisis with a deep sense that it would have to find more meaningful ways to contribute to the international community – particularly given that it continued to nurture ambitions to obtain a permanent seat on the United Nations Security Council.

Japan turned to limited involvement in U.N. peacekeeping, participation in the development of such concepts as “human security” (2), and perhaps most important, the use of foreign aid, particularly in areas of ongoing or potential conflict, to increase its influence and shape its identity as a “power for peace.” With respect to Sri Lanka, in 2003 Japan tried to take a leading role by hosting the Tokyo Conference on Reconstruction and Development in Sri Lanka and it played an important role in the Norway-led peace talks that continued in the period that followed. Japan’s foreign aid to Sri Lanka, in the form of loans, grants, and the provision of technical assistance, has been part of that effort, and Japan has given far more foreign aid in the last ten years than any other country (3). In the 2007-2008 period alone, Japan provided US $ 288 million, more than three times the amount given by each of the U.S. and the E.U. (4), and Sri Lanka was tenth on the list of Japan’s top aid recipients (5). The benefits to Sri Lanka from such aid should not be minimized, and it will no doubt contribute to the economic growth and stability essential to (while of course not sufficient for) the post-war peace process in Sri Lanka.

Nonetheless, precisely because Japan is by far the largest aid donor to Sri Lanka, it is in a position to exercise considerable influence over the policies of the government in respect of ongoing humanitarian and human rights issues. These include the continued need for reintegration of tens of thousands of internally displaced persons (IDPs) into their home areas, ending the indefinite and completely unmonitored continued detention of thousands of suspected members of the Liberation Tigers of Tamil Eelam (LTTE) insurgents, the requirement for an independent investigation into war crimes allegations, taking meaningful steps to restore the rule of law, and generally moving to ensure that Tamil grievances are addressed (6). There is widespread consensus that a failure by the government to take these steps, as a means to resolving some of the underlying root-causes of the conflict will likely result in a resurgence of violence down the road (7).

There is little evidence, however, that Japan has used its unique position to meaningfully influence the government of Sri Lanka to develop policies that would address these issues and thus significantly enhance the chances for lasting peace. Back in 2008 when the ceasefire between the government and the LTTE broke down, Japan went so far as to announce that it was “considering” a review of its aid policy, but since then it has been conspicuously reluctant to criticize Sri Lanka government policy and conduct(8).

In the closing months of the conflict, when the world press was full of dire reports about hundreds of thousands of civilians having been trapped between opposing forces in the North, Japan did little publicly beyond issuing anodyne statements of concern and reaffirming its continued commitments to provide humanitarian assistance. In May 2009 the inaction of the Japanese government prompted the heads of Human Rights Watch, the International Crisis Group, Amnesty International, and the Global Centre for the Responsibility to Protect, to issue a joint letter to then-prime minister Taro Aso, asserting that Japan must shoulder its responsibilities to help prevent a humanitarian disaster in Sri Lanka (9). Japan did little in response. In October, 2009, five international and Japanese human rights groups wrote to the newly elected DPJ government urging it to follow the lead of Western governments in demanding the release of thousands of detainees (10). The government remained largely silent.

What is more, in the post-conflict period, Japan has sent mixed messages. In June 2010, Yasushi Akashi, Japan’s special envoy to Sri Lanka, visited the country and addressed the issue of proposed U.N. investigations into war crimes committed during the final months of the conflict. Upon his arrival in Sri Lanka Akashi stated that the rest of the world ought not to dictate to Sri Lanka how to resolve war crimes issues or develop the post-conflict reconciliation process, and said that it was up to Sri Lanka to define any role to be played by a panel recently established by the U.N. Secretary General. Yet four days later, to a wider international audience, Akashi stated that Japan in fact backed efforts by the U.N. to investigate alleged war crimes, and said that he had actually pressed Colombo to allow the U.N. to participate in the reconciliation process (11).

Japan can and should do much more in pressing the government of Sri Lanka to address the ongoing humanitarian, human rights, and rule of law issues in the post-conflict period. What is more, aside from its significant leverage as Sri Lanka’s largest donor and debt-holder, Japan could draw upon its own experience as a credible source of some historical lessons and moral authority in advising the government of Sri Lanka. For while the analogies are of course very imperfect, with the nature of the conflict being very different, Japan’s experience in the aftermath of World War II could nonetheless offer some insights.

The strength of the U.S.-Japan alliance and the depth and warmth of that bi-lateral relationship speaks to the possibilities for peace between former enemies when the defeated are treated with magnanimity and respect. The manner in which Japan itself, in the wake of the utterly devastating destruction of World War II, managed to evolve from a militarist regime into a pacifist liberal democracy with a hugely successful economy, is powerful evidence of the possibilities for peaceful change in the aftermath of conflict. We should also remember that the prosecution of Japanese war crimes by the International Military Tribunal for the Far East served an important role in restoring the legitimacy of the new post-war Japanese regime, and accelerating the return of Japanese sovereignty. This historical experience is not without its relevance for how Colombo might want to think about how to deal with the war crimes issues (12).

Instead of exercising leadership in some of these ways, however, Japan not only looks ineffective but indeed runs the risk of appearing cynical and unprincipled in its pursuit of strategic and geopolitical interests at the expense of both the “power for peace” image it aspires to develop and the peace process in Sri Lanka itself. This is because Japan’s studied refusal to join in criticism of the Sri Lankan government, while it continues to pour money into infrastructure development, could be construed as not simply more ineffectual cheque-book diplomacy but in fact an investment in the regime — no matter what. The reasons for both looking the other way and actively supporting the Sri Lankan government could range from securing Japan’s sea-lanes to its primary energy sources in the Middle East to precluding China from muscling in on Japan’s perceived sphere of influence. Not only does this undermine Japan’s efforts to define itself as a state with the ability and commitment to work for the high ideals of peace and security in post-conflict regions, but also its continued unconditional and uncritical support for the Sri Lankan government could cause real harm to the peace process in Sri Lanka.

Protestations about “quiet diplomacy” notwithstanding, the failure Sri Lanka’s most significant development assistance partner to support U.N., EU, and other governmental and NGO pressure upon the Sri Lankan government to address the many significant humanitarian and human rights issues, and respond meaningfully to other Tamil grievances, provides the government of Sri Lanka with the necessary space to evade and withstand international pressure. This not only raises the risk of perpetuating the human tragedy that continues to unfold in Sri Lanka notwithstanding the end of warfare but in the longer run it contributes to the possibility of a resumption of the conflict in the future. Quite apart from the moral implications, such a consequence is not in Japan’s interests, from the perspective of either its strategic and geopolitical concerns, or its efforts to become a “power for peace” with U.N. Security Council aspirations.

* * *

1. Takashima Hatsuhisa, Foreign Ministry Spokesman, quoted in the “Japanese Wage Peace with Talks and Money, Pleasing Asians,” The New York Times, Dec. 8, 2002. For more on the effort, see Peng Er-Lam, “Japan’s Peace Building Diplomacy in Sri Lanka,” 21:2 East Asia 3-17 (2004).

2. The most recent iteration of this effort was a symposium on the subject of Human Security sponsored by the Ministry of Foreign Affairs in the summer of 2010. See http://www.mofa.go.jp/policy/human_secu

3. OECD data. It should also be noted that the motives for Japan’s foreign aid are mixed, and there is a body of scholarship that argues that Japanese ODA has during some periods been at least partially motivated by a desire to create markets and provide opportunities for Japanese companies. See, e.g., Bruce M. Koppel and Robert M. Orr Jr., eds., Japan’s Foreign Aid: Power and Policy in a New Era (1993).

4. OECD, World Bank, available on-line at http://www.oecd.org/dataoecd/0/7/1878751.gif

5. OECD, available on-line at http://www.oecd.org/dataoecd/42/5/44285062.gif

6. On the current conditions of IDPs within Sri Lanka, see reports available at Internal Displacement Monitoring Center, available on-line at http://www.internal-displacement.org/countries/srilanka; for more on the status and treatment of detainees, see International Commission of Jurists, Beyond Lawful Constraints: Sri Lanka’s Mass Detention of LTTE Suspects, September 2010, available for download at
http://www.icj.org/default.asp?nodeID=349&sessID=&langage=1&myPage=Legal_Documentation&id=23159 ; on the breakdown of the rule of law since the end of the conflict, see James Yap and Craig Scott, “The Breakdown of the Rule of Law in Sri Lanka: An Overview”, unpublished paper prepared for the Sri Lanka Campaign on Peace and Justice, posted on SSRN athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=1682133

7. See, e.g., “Victory’s Rotten Fruit: The Government’s Unpleasant Triumphalism is Sowing the Seeds of Renewed Conflict,” The Economist, Jun. 11, 2009; and see generally, Paul Collier et al., Breaking the Conflict Trap: Civil War and Development Policy (2003);

8. See BBC News, “Japan ‘reviews’ aid to Sri Lanka,” January 15, 2008, available on line athttp://news.bbc.co.uk/2/hi/south_asia/7189002.stm

9. “Joint Letter to Japanese Prime Minister on Sri Lanka,” Human Rights Watch, May 10, 2009, available on-line athttp://www.hrw.org/en/news/2009/05/10/joint-letter-japanese-prime-minister-sri-lanka

10. “Japan: Break the Silence on Sri Lanka Rights Abuses,” Human Rights Watch, October 22, 2009, available on-line athttp://www.hrw.org/en/news/2009/10/22/japan-break-silence-sri-lanka-rights-abuses

11. See “Japan Urges World Not to Dictate to Post-War Sri Lanka,” Reuters, June 16, 2010, available on-line at:http://www.reuters.com/article/idUSTRE65F23320100616; and “Japan Backs UN War Crimes Probe into Sri Lanka,” AFP, June 20, 2010, available on-line at: http://www.google.com/hostednews/afp/article/ALeqM5jY8mJYN7CrKTNKobNadHD1RvLiGQ

12. There is, of course, continued debate over the legitimacy and fairness of the Tokyo War Crimes Trials, with many conservatives in Japan being strongly critical of the entire process. Perhaps ironically, given the point I am advancing, the Indian Judge, Radhabinod Pal, who was the only Judge to have dissented in holding that all the defendants should be found not guilty of all charges due to the illegitimacy of the tribunal process, continues to be revered by such conservatives today.

The case in question, commonly known as the Sunakawa case, remains a highly important judgment of the Supreme Court, and the discovery that the U.S. government interfered in the process is important, and may have political repercussions in the ongoing constitutional revision debate.

The Telegram

The discovery itself was made by a Japanese historian on U.S. Japanese relations named Niihara Shoji. While doing research at the U.S. National Archives he uncovered a telegram from ambassador Douglas MacArthur II, nephew to the more famous general who was Senior Commander Allied Powers during the occupation of Japan. In the telegram, sent to Washington in April, 1959, ambassador MacArthur recounted his discussions with both foreign minister Fujiyama Aiichiro, and with Supreme Court Chief Justice Tanaka Kotaro, regarding the ruling by the Tokyo District Court in March, 1959, that the U.S.-Japan Security Treaty was unconstitutional, and that the maintenance of U.S. armed forces in Japan was a violation of Article 9 of the Constitution.

The telegram explains that ambassador MacArthur had initially pressed foreign minister Fujiyama to ensure that the government would appeal the decision directly to the Supreme Court, by-passing the more normal procedure of appealing to the Tokyo High Court. According to the telegram, he “stressed importance of GOJ [government of Japan] taking speedy action to rectify ruling by Tokyo District Court”.

It also recounts how he then had private discussions with Chief Justice Tanaka, after the Supreme Court was seized of the case, in which he sought to determine when the Supreme Court would likely hand down its decision. While the telegram is apparently silent on the issue, it is difficult to believe that the ambassador would not have similarly conveyed to the Chief Justice the American view that it was essential to “rectify” the ruling of the court below.

Why the need for speed? How important a case was this? Why should this be viewed as being important now, some 48 years later?

The Context of the Sunakawa Case

First a few words on the case itself. It was a criminal trial involving the prosecution of several people for trespassing on the property of a U.S. forces base, which they had done in the course of demonstrations against the presence of U.S. forces in Japan and the U.S.-Japan Security Treaty itself. They were prosecuted under a special law that carried a higher penalty for trespassing on U.S. forces property than the penalty provided for trespassing under the regular criminal law.

The accused challenged the constitutionality of the law on the grounds that it had been passed pursuant to and in support of the U.S.-Japan Security Treaty, which they argued was in violation of Article 9 of the Constitution. Art. 9 prohibits the use of force and the maintenance in Japan of any land, sea, or air forces, or other war potential. The Tokyo District Court held that the U.S. forces in Japan constituted such armed forces and thus violated Art. 9, and that the treaty that required Japan to permit such maintenance of U.S. forces was similarly in violation of Art. 9.

The government of Kishi Nobusuke was in the midst of re-negotiating the treaty, and it was up for renewal in 1960. There were increasing protests and demonstrations against the treaty and the presence of U.S. forces, of which the accused in the case had been a part. The protests continued to mount in 1959, with strikes, student demonstrations, and even violent confrontations escalating as the year wore on. Meanwhile, in the midst of the Cold War, the U.S. government viewed the continued maintenance of substantial U.S. forces in Japan as crucial, and hence the need for speed in “rectifying” the decision of the lower court in this case.

The Supreme Court Decision

The Supreme Court handed down its decision in the Sunakawa case in December, 1959, on the very eve of the final conclusion of the renewed U.S.-Japan Security Treaty. In comparison to normal timelines for Japanese litigation, to have a Supreme Court decision some 9 months after the decision of first instance represents unprecedented and blinding speed. Ten years is much more typical. This is significant in the context of considering the influence the U.S. government may indeed have had on the process.

The decision itself remains profoundly important in Japanese constitutional law. The Court overturned the decision of the Tokyo District Court, and remanded the case. Far more importantly, however, the Court engaged in an interpretation of Art. 9 for the first and only time in its history (before or since), and made a determination that continues to influence the institution of judicial review more generally.

The majority of the Court held that notwithstanding the apparent meaning of Art. 9 on its face, it did not preclude Japan from exercising individual self-defence, and it was open to Japan to establish agreements with other countries for the purpose of providing for its defence. Moreover, it held that since the U.S. forces were not under the command and control of the Japanese government, they did not constitute the maintenance by Japan of land, sea or air forces, or other war potential in violation of Art. 9.

But far more important, the real basis of the decision was that the question itself was not properly within the jurisdiction of the courts, because the U.S.-Japan Security Treaty had such a degree of “political consideration”, and thus the question of its constitutionality was too “political”, such that the courts could not make the determination and had to defer to the executive and legislative branches of government on the issue.

The Court came to this view notwithstanding that Art. 81 of the Constitution provides that the Supreme Court has the sole authority to interpret the Constitution and to determine the constitutionality of any law, regulation, or other act of government, and that Art. 98 of the Constitution provides that it is the supreme law of the land, and that no law, regulation, or other act of government that is inconsistent with it will have any force and effect.

The narrow question before the Court was whether the provisions of the treaty that required Japan to permit the maintenance of U.S. forces in Japan were inconsistent with Art. 9(2) of the Constitution, such that the legislation passed to support such forces, were therefore invalid, and that was clearly a legal question. Yet the Court ducked it, and held that it was “too political” because it had ramifications that affected Japan’s international treaty obligations and its relationship with the U.S. As Justice Kotani wrote in an impassioned dissent (on the reasoning, not the result), in effect the Court was taking the position that any issue of significant importance was beyond its jurisdiction and should be deferred to the executive and legislative branches.

The Significance of the Decision

While the Supreme Court has never itself explicitly made recourse to this “political question” refuge (and it should be made clear that the reasoning behind it has little resemblance to the ‘political question doctrine’ employed in U.S. jurisprudence), the lower courts have repeatedly used it, often in the course of dismissing claims regarding Art. 9.

Thus, in my view, the Supreme Court judgment in the Sunakawa case not only operated to eviscerate the normative power of Art. 9, and thus helped to undermine the integrity of the Constitution, but it very badly damaged the power of the judiciary and the institution of judicial review itself. As Justice Kotani in dissent argued, the Court could have reached the same result, by simply finding that U.S. forces did not constitute the maintenance of forces by Japan, without going the additional step of depriving itself of jurisdiction to interpret the constitutionality of the treaty, or other politically important issues.

The Implications of the U.S. Interference

Now we discover that the U.S. government most improperly interfered in the process of the case. We still do not know the extent to which pressure was brought to bear on the Supreme Court of course, nor the extent to which it would have been susceptible to overt pressure from Americans in any event. But there is no question that the Court understood the difficulty of the position it was in, given that it was in a real sense being asked to issue a judgment that would require the government to either abrogate or violate its international treaty obligations on the one hand, or stand in violation of the Constitution in a manner that could not be remedied on the other.

The U.S. interference would have made the difficulty of this position all the apparent and poignant. And reflecting yet again the old saw that justice must not only be done, but be seen to be done, the discovery that the U.S. government was interfering with a Supreme Court deliberation on this most important of cases, may reverberate in the ongoing debate over constitutional revision.