An article in The New York Times on Sunday described how recent letters to Congress from the Department of Justice (DoJ) explain that the government reserves the right to decide on a case-by-case basis what interrogation methods would violate international law standards against mistreatment of detainees. Specifically, the letters from the DoJ state that where harsher interrogation measures are “undertaken to prevent a threatened terrorist attack, rather than for the purpose of humiliation or abuse” then such measures could be determined to be not “outrageous” or otherwise in violation of international standards.

In these letters the the government has focused on the language of Common Article 3 of the Geneva Conventions, which among other things prohibits “outrages upon the personal dignity” of detainees. President Bush issued an executive order Executive Order in July, 2007, which provided that the CIA would comply with specified domestic and international standards against harsh treatment of detainees, with particular reference to Common Article 3. Why the letters do not refer to the standards of the International Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, as they have been implemented in U.S. law and incorporated in that form into the Executive Order, is somewhat mystifying.

In any event, the letters explain that for treatment “to rise to the level of an outrage” so as to be in violation of international standards, it “must be so deplorable that the reasonable observer would recognize it as something that should be universally condemned”. Prof. Sandy Levinson has already written a nice piece illustrating the tautological paradox inherent in that statement. An ex ante determination by the government that the conduct is permissible would strongly militate against observations that the conduct is, or even ought to be, “universally” condemned.

But the Supreme Court of Israel has already dealt with this issue of ex ante authority for harsher interrogation techniques (and the techniques, as described in the judgment, are far far less harsh than those the CIA is suspected of using today). The Court recognized the security needs of the state, and even examined the old ticking time bomb hypothetical, but it concluded that the government could find no ex ante authority for harsher interrogation practices in the principle of necessity (its full judgment is here). It left open the possibility of the legislature passing laws providing specific authority for such measures, though it noted that democracies have to fight with one hand tied behind their backs in order not to violate their own fundamental values. It also left open the ex post facto raising of necessity as a defence in the event of criminal prosecution. But it could not rely on its own determinations of neccessity to justify, and provide immunity for, harsher interrogation techniques.

That Israel, a country with much greater existential threats, and very real and persistent terrorist attacks upon its territory, can respond so forcefully to government claims that “necessity” requires ex ante authority for harsher interrogation techniques, should be instructive for the purposes of the debate in the U.S.

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.