The Use of Force and Int’l Law: The Void in American Discourse

by

(Initially published in the Progressive Fix)

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.

Read more

Debate Afghan War Goals, Then Select Strategy

by

(Written with Adnan Zulfiqar, and initially published in The Japan Times, Nov. 7, 2009)

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.

Read more

Climate Insecurity: Global Warming and National Security

by

(Initially published in the Baltimore Sun, September 10, 2009)

The debate over climate change legislation is beginning to heat up. The American Clean Energy and Security Act was passed by the House and is now before the Senate. The debate on this issue typically takes the form of environmental concerns about global warming pitted against economic fears about the cost of reducing greenhouse gases. It is often framed in left-right terms. But as Americans think about whether to support this legislation, they should ponder the national security implications of climate change.

The recognition that global warming will increase the threats to our national security and place ever greater demands on our military is not new. The Bush administration acknowledged the issue in the 2006 National Security Strategy. A national security think tank comprising retired military officers, including Marine General Anthony Zinni, issued a report on the subject in 2007, identifying the various ways in which man-made climate change will directly affect national security.

Read more

A Turning Point in Japan For Equality Rights?

by

(Initially published in the Japan Times, June 10, 2009)

A year ago this week, the Supreme Court of Japan issued a judgment that struck down a clause in the Nationality Act as being a violation of the Constitution. There are good reasons for everyone in Japan to celebrate that decision. While little noted outside of specialized legal journals at the time, the decision may have been the beginning of a more robust judicial protection of the right to equality in Japan.

The Nationality Act judgment was, of course, hailed as an historic decision — in part because it was only the eighth time the Supreme Court has struck down a law as unconstitutional; and in part because it would extend the benefits of nationality to tens of thousands of children born in Japan to Japanese fathers and foreign mothers who were not married. But much less noticed were the reasons of the court, and what that analysis meant for the right to equality itself.

Prior to this case, the courts of Japan employed a simplistic “reasonableness” test to determine if discrimination constituted a violation of the right to equality enshrined in Article 14 of the Constitution.

Read more