Permanent SDF Deployment Law and Democracy

(Initially published in the Japan Times, May 21, 2008)

The Japanese government wants permanent legal authority to send military forces overseas. Letting it have it would be a mistake for many reasons, but one seldom raised is the impact the move would have on the nature of Japan’s democracy. A law conferring permanent authority to deploy troops would eliminate important institutional checks and balances on the government’s use of the military, causing a further weakening of the separation of powers in Japan.

It would also run counter to the recent trend in other democracies to increase accountability in the process of deciding to use armed force.

As it stands now, the government (meaning the executive branch, the Cabinet) has to have specific legislation passed by the Diet, such as the Anti-Terrorism Special Measures Law (the ATSML), to obtain the required legal authority to deploy troops outside of Japan. A new law is required each and every time the government wants to dispatch the Self-Defense Forces (SDF), whether for the purpose of U.N. peacekeeping or to provide humanitarian support for collective security operations such as those in Afghanistan.

Such legislation establishes the operating parameters, such as limiting the SDF to noncombat zones and defining the conditions under which it may use force in self-defense, and typically specifies clear time limits for the deployment. New legislation is also required to extend the time limits of such laws before they expire.

The government was embarrassed last year by its inability to get Diet approval for an extension of the ATSML for another year, forcing it to withdraw the SDF from the Indian Ocean.

The government, and many policy pundits, believe that the requirement to obtain legislative approval for each deployment is cumbersome, time-consuming, and when the opposition controls one chamber of the Diet, a real obstacle to the implementation of policy. So it now wants a permanent law that would provide blanket authorization for the deployment of the SDF for participation in what it calls “international cooperation activities.”

The term “international cooperation activities” (which also appears in the Liberal Democratic Party’s proposed amendment to Article 9 of the Constitution) has no meaning under international law. It could be used to describe collective self-defense, or collective security operations authorized by the United Nations Security Council, both of which are understood to be prohibited by Article 9.

It could even include such operations as the invasion of Iraq, which was not authorized by the U.N. and is widely interpreted as having been an act of aggression in violation of international law.

Since the term is deliberately ambiguous, the law authorizing such “international cooperation” would have to provide broad and ambiguous criteria justifying the dispatch of the SDF. There would be no narrow parameters tailored to the specific circumstances for which the SDF were to be deployed, as have characterized the “special measures” laws authorizing each SDF deployment in the past. It would be tantamount to a blank check.

Such a blank check would eliminate the role of the legislature in the process of deciding upon and approving Japan’s involvement in military operations abroad. Nor would the legislature have any power to block or otherwise restrain government after it has decided to deploy Japanese troops. The Cabinet would have authority to make the determination, in its sole discretion, as to whether the operation for which it sought to deploy Japanese troops met the criteria in the permanent law. Moreover, without a specific law setting the limits within which the SDF is required to operate, there would be no restraints on “mission creep” in which operations could develop into actual combat activity and escalate over time.

Advocates of the new law assert that the permanent law would not be for engaging in armed conflict, but only to authorize the dispatch of the SDF for humanitarian support efforts. But these assertions are both hollow and disingenuous. Given the language of “international cooperation,” the SDF could be deployed for almost any purpose the government decides upon.

In the recent past, when there have been special laws both authorizing and limiting SDF operations, the SDF has been found to have violated the limits of those laws (as with the ASDF operations in Iraq), the government has tried to dismiss legal findings to that effect (as in its response to the Nagoya High Court case on ASDF operations in Iraq), and the SDF itself has tried to deceive both Cabinet and the Diet regarding such violations (as in the MSDF misrepresentations regarding the fueling of U.S. naval assets in the Indian Ocean).

Given this recent record, why should anyone think that eliminating such legal restraints and legislative oversight would not lead to even more unrestrained use of the military, in ways that may be utterly inconsistent with the Constitution?

Nor could the courts be relied upon to review such decisions as a check on government action. The courts are considered to be the third branch of government in the traditional separation of powers that is at the foundation of the modern democratic structure. In Japan, however, they have abdicated all responsibility for reviewing the executive’s decisions with respect to the development and deployment of troops. The Supreme Court long ago held that such issues are “too political” to be the subject of judicial review, even where the government action is inconsistent with Article 9 of the Constitution.

The Supreme Court has also narrowed the test for standing, the legal basis upon which constitutional claims may be brought before the courts, to such a degree that using the courts to review government deployment of troops is all but impossible. There are virtually no circumstances in which anyone could demonstrate the “direct legal interest” necessary to advance a claim that would be accepted by the courts.

Lower courts have recently followed precisely these standards in dismissing a number of challenges to the deployment of the SDF to support operations in Afghanistan and Iraq. As the recent Nagoya High Court decision demonstrated, the lower courts will continue to dismiss such claims even when they believe the government’s action is unconstitutional. Notwithstanding the judiciary’s constitutional authority and responsibility, it will thus be no check on executive acts in this regard.

This elimination of checks on the executive power to engage in armed conflict runs counter to recent trends in other democracies around the world. Over the last 30 years there has been a movement toward greater transparency and democratic accountability in the process of deciding to use armed force.

The United States has always had a constitutional provision granting Congress the power to declare war and to confer authority for other actions incidental to armed conflict, though the exact scope of that authority has been hotly debated for over a hundred years. But after presidents began more aggressively ignoring the congressional authority, beginning with the Korean war and culminating in secret operations in Laos and Cambodia during the Vietnam war, Congress passed the War Powers Act to try to reign in the executive power.

While the war powers of the president and Congress continue to be controversial, it is worth noting that the president obtained specific congressional authority for the Gulf War in 1990, for the response to 9/11 that culminated in the invasion of Afghanistan, and for the invasion of Iraq.

In Germany, the Constitutional Court was called upon to consider the issue in the context of Germany’s participation in the North Atlantic Treaty Organization’s operations in the former Yugoslavia in 1994. The court rather creatively interpreted the Basic Law as requiring the government to obtain specific legislative approval each and every time it sought to deploy armed forces in support of international operations. That continues to be the constitutional principle that governs German policy today.

Similarly, Prime Minister Gordon Brown has recently suggested constitutional changes for Britain, introducing the concept of requiring parliamentary approval of decisions to engage in armed conflict. Under the British constitutional system the decision to go to war has traditionally been within the scope of the “Royal Prerogative,” meaning the sole discretion of the executive. That broad discretion of course contributed to such historic policy blunders as the conspiracy with France and Israel for the orchestrated attack on Egypt in the Suez crisis of 1956, which was decided upon without any informed parliamentary debate.

Canada, which has historically also operated under the Royal Prerogative, has more recently begun the practice of submitting decisions to participate in armed conflict to parliament for debate and approval. There was parliamentary debate before the final decision to participate in the first Gulf War in 1991, and there was legislative approval sought again this year for continued Canadian involvement in Afghanistan.

There are other examples that together establish the clear trend in the world’s democracies to broaden legislative participation in the decision to use armed forces. That seems only reasonable, since the decision to engage in armed conflict is one of the most important and potentially significant a nation can make.

It may be cumbersome to obtain legislative approval for deploying military forces overseas, but that is as it should be. It is not a decision that should be made lightly. It should be made after well informed debate, with a clear understanding of objectives and limits.

Japan, more than most countries, ought to have a deep understanding of the horrors that can unfold from granting one branch of government a blank check to make decisions about war and peace, and how international “incidents” can develop into full-blown wars.

The government’s recent high-handed dismissal of the Nagoya High Court judgment on the constitutionality of SDF operations in Iraq is just one more reminder of why it is essential to have meaningful and substantive democratic constraints on the executive power to use armed force in Japan.

Providing the government a blank check for the dispatch of the SDF is going in the wrong direction, and swimming against the tide.