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 the debate continues in Japan’s Diet this month over a new Antiterrorism Special Measures Law (ASM Law) authorizing Japanese naval force activities in the Indian Ocean, serious attention must be paid to the issues of exactly how such activity is to be limited, and how the Diet can meaningfully monitor compliance with such limitations.

These are not simply political or operational issues, but constitutional issues.

The current draft of the ASM Law purports to authorize the Maritime Self-Defense Force (MSDF) to supply fuel to coalition forces engaged in maritime interdiction operations related to Afghanistan. The law would restrict, among other things, the MSDF’s area of operations, its involvement in any use of force, and the purpose for which the fuel it provides may be used. These limitations have been explained as being necessary to ensure that Article 9 of the Constitution is not violated.

Yet the U.S. government has recently made clear that it will not agree to respect any limitations that Japanese law may seek to impose on the use of fuel provided by the MSDF.

From the U.S. perspective, Operation Enduring Freedom, the U.N.-authorized ISAF (International Security Assistance Force) operations in Afghanistan, the U.S. operations in Iraq, and, for that matter, potential activities in other areas in the region, are all part of a broader campaign, and U.S. naval assets are not dedicated exclusively to any one operation. Operational flexibility is paramount.

The Japanese government has been desperate since November to renew its contribution to U.S. efforts, and may feel the pressure now to agree to ill-defined or legally ambiguous naval operations. Canada went through a similar process in 2003.

In February 2003, Canada assumed command of a multinational naval task force — TF 151 — operating near the Persian Gulf in support of operations in Afghanistan. The Canadian Department of National Defense (DND) had agreed to take command on the assumption that Canada would likely participate in the looming invasion of Iraq.

The Canadian government decided in March 2003, however, not to support the U.S. invasion of Iraq, but it was clear by then that TF 151 would be involved in support of operations relating to both Afghanistan and Iraq.

This created an enormous dilemma for Canada. The DND was of the view that it could not continue in command of TF 151 under such circumstances. It had internal legal opinions that concluded that any Canadian participation in maritime interdiction operations related to the war in Iraq would make Canada a belligerent in that war under international law, regardless of what position the government adopted publicly.

The Ministry of Foreign Affairs was opposed to Canada relinquishing command of TF 151, fearing that doing so would further antagonize Canada’s most important ally. The prime minister went along with Foreign Affairs, and publicly stated that Canada’s naval forces would continue to operate in TF 151, but only with respect to the operations in Afghanistan.

This was possible for some countries in the task force, as their ships were assigned to sectors far removed from Iraq. But in practical terms, this was impossible for Canada, as it was exercising command of the task force, and the task force as a whole could not be so limited. In practice, Canada continued with a “double-hatted” operation (serving two mandates simultaneously), but one mandate was in respect of a war that Canada had publicly refused to join and whose legality Canada had publicly questioned.

Canada continued in command of TF 151 until June 2003. It is still not known to what extent Canadian forces were involved in operations relating to Iraq. It was only due to extreme good fortune that Canada was saved from potential legal and public relations nightmares arising from direct engagement with Iraqi assets or the detention of high-profile Iraqi officials during that period.

Canada was actually engaged in interdiction operations — not merely logistical support — but then again Canada has no constitutional constraints on its involvement in the use of force either.

Notwithstanding these differences, Japan can take some lessons from the Canadian experience. For one, it should be recognized that many naval operations in the region are “double-hatted.” More importantly, Canada got into a legally untenable situation primarily due to a perceived need to satisfy its American ally, which made no distinctions between operations in support of Afghanistan and those in support of war in Iraq.

In practical and legal terms, Canada’s conduct was inconsistent with its public political posture. It was lucky to have avoided any serious embarrassment, but then the integrity of its constitution was not at stake either. Finally, political monitoring for compliance with the public position was difficult.

In Japan there have already been incidents of the MSDF providing false information to politicians regarding its fueling operations in the Indian Ocean, leading to members of Cabinet making false statements to the public about the nature of Japan’s military involvement in so-called antiterrorism operations.

Yet the current ASM Law has less Diet oversight and control over the MSDF than the previous one. Without specific legal requirements, oversight and control of operations will be difficult. But consider the effect if it were later disclosed that the MSDF had supplied U.S. ships that were shortly thereafter involved in strikes on “terrorist sites” in northern Pakistan, or engagements with Iranian vessels.

To the extent that the Japanese government and people believe that support for military activity other than maritime interdiction operations related to Afghanistan could violate Article 9 of the Constitution, then the new ASM Law ought to contain clear limitations to that effect, and provide clear and effective mechanisms for the Diet to monitor MSDF operations to ensure compliance.

Moreover, the new ASM Law ought to specify that the MSDF may only supply fuel to those coalition countries that formally agree to limit their use of such supply for those purposes.

Several coalition nations have limited their naval forces to support for operations relating to Afghanistan. Japan’s efforts are in support of NATO as a whole, and if the United States finds such limitations overly restrictive for its own operational effectiveness, it will nonetheless benefit from Japanese supply to other NATO forces.

On the other hand, if such limitations are determined to be truly unworkable from an operational perspective, then Japan needs to rethink whether it can provide the logistical support requested. But Japan cannot allow itself to slide into a legally ambiguous situation that could result in a violation of a core principle in its Constitution, merely to accommodate the operational flexibility requirements of the U.S. Navy.