Constitutional Law

Debating Canada’s Objectives and Role in Libya

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(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.

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DADT, Unit Cohesion, and American Values

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(Was set to be published on Dec. 17, when the Senate voted for repeal, making it thankfully moot)

In the debate over repeal of the Don’t Ask Don’t Tell policy, Senators such as John McCain cling to the argument that allowing gays and lesbians to serve openly in the military might negatively impact on unit cohesion, and thus on war-fighting capability. The Commander of the Marines, General James Amos, has fueled such claims, suggesting that repealing the policy in a time of war could cause casualties. As the Senate begins its debate on the issue, it is crucial to understand the assumptions and validity of this argument.

The conclusion of the argument is itself tenuous. Over 25 of our democratic allies have changed their policies within the last twenty years to allow homosexuals to serve openly. Comprehensive studies of those militaries, including those of such close allies as Great Britain, Israel, Australia and Canada, have established that the change in policy did not result in any degradation of fighting capability. Moreover, prior to the policy shifts, surveys of military members in many of those countries found that there was strong opposition to the change, and suggested that there would be significant disruption if implemented. In other words, stated attitudes grossly exaggerated the likely impact. Yet the recent Pentagon study of the U.S. military found that 70% of service members already accept the change and think it would have little impact.

But let us assume for the moment, just for the sake of argument, that there might be some disruption to unit cohesion if DADT is repealed. Why would that be? No one suggests that it is because gays and lesbians are inherently less capable of fulfilling their duties or performing combat functions than their straight brothers and sisters in arms. It is not about their conduct at all. It is all about the response of their comrades.

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Revising Japan’s Nonnuclear Principles

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(Initially published in The Japan Times, Aug. 18, 2010).

The prime minister’s advisory panel on national security has recommended a reconsideration of Japan’s adherence to the so-called three nonnuclear principles. The panel specifically urged that the third principle, the prohibition on the introduction of nuclear weapons into Japan (which forbids not only the stationing of weapons in Japan, but even the transit of weapons through Japan), be relaxed in order to permit the U.S. greater freedom in deploying nuclear weapons in Japanese territory.

This is a bad idea for many reasons, but for one it would be inconsistent with the Constitution.

As is well known, Article 9, paragraph 1 of the Constitution renounces war and the threat or use of force as sovereign rights of the nation, while paragraph two prohibits the maintenance of armed forces or other war potential, and denies to Japan the right of belligerency. The long established official understanding of paragraph 1 is that Japan can only use the minimum military force necessary for its individual self-defense. It cannot use or threaten the use of armed force for collective self-defense, or for U.N. collective security operations.

Even this understanding, long embraced by successive governments, the courts, and the Cabinet Legislation Bureau, is a strained interpretation of a clause that clearly prohibits those uses of force that remain sovereign rights under international law — which are limited to individual and collective self-defense, and collective security operations. But the proposed changes to the nonnuclear principles would violate Article 9 under even the official interpretation.

The three nonnuclear principles were articulated by the government of Prime Minister Sato in 1967, and formally adopted in a Diet Resolution. Japan went on to sign the Nuclear Nonproliferation Treaty in 1970 and ratified it in 1976. The nonnuclear principles caught the imagination of the Japanese people and quickly became powerful elements of the broader pacifist identity associated with the constitution. As the only victim of nuclear weapons, this stance also made Japan a powerful symbol for the nonproliferation movement. Sato won the Nobel Peace Prize for his efforts.

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Time to Scrap “Don’t Ask Don’t Tell”

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(Initially published on CBSNews.com, February 12, 2010)

From banking to healthcare, looking to Canada has become fashionable of late. It is also an example on equality rights. I served as an officer in one of the first Canadian warships to deploy with women among its crew. That was only after a spirited campaign waged by the military against the integration of women in combat roles, in part on the basis that they would undermine the cohesion and fighting effectiveness of combat units. There would be privacy issues, sexual tension, an erosion of the essential masculine warrior ethos, and ultimately a degradation of military effectiveness.

All of this was proved false of course. It was proved false again a few years later, in the early 1990a, when the Canadian military was again forced to adhere to the country’s constitutional values and open its ranks to openly gay and lesbian members. To the extent there was any disruption (and most studies have found there to have been none), it was minor and temporary, as the military sub-culture adjusted very quickly to the new reality – a reality that better conformed to the values of the society the military is sworn to defend.

The experience of Canada, Britain, Israel, Germany, Australia, and many other democratic allies of the United States (the troops of which are fighting alongside Americans in Afghanistan) have demonstrated that there is no significant impact on military effectiveness by the integration of gay and lesbian troops. Quite the contrary. As with the admission of women, and racial minorities before that, it broadened the recruitment base and increased the number of highly skilled personnel available to the military.

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