There is new fodder for the tortured torture debate in the U.S. New evidence is emerging that the government views secret ex ante determinations, presumably by the government itself, of whether harsh treatment of detainees may be justified by reason of necessity. It is useful to compare this position with the 1995 judgment of the Supreme Court of Israel, in which the Court rejected government arguments that it could find ex ante authority for harsher interrogation techniques in the principle of necessity.
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.
The Nagoya High Court handed down a judgment last week on Japan’s involvement in Iraq. While dismissing the applicants’ claims on the basis that they lacked legal standing, the Court held that the Air Self-Defence Force (ASDF) operations in Iraq violated the limits in the authorizing legislation, and the prohibition on the use of force in Article 9(1) of the Constitution.
The judgment, and how the government is responding to it, raises profoundly important issues. The case was one of dozens that have been commenced by citizen groups in opposition to the deployment of the SDF in support of operations in Afghanistan and Iraq. This is the first decision that has held that the operations are unconstitutional, and it is the most important decision involving Art. 9 to be handed down by a court in over 25 years. Below I provide more of the background and the reasoning of the decision, but first, I address the main issues it raises.
The court dismissed the plaintiffs’ claims both for damages in respect of their right to live in peace, and for the injunction against continued deployment of the ASDF. The plaintiffs were found not to have a direct legal interest that would be harmed by the ASDF operations. While finding that the deployment in Iraq was a violation of the prohibition on the use of force in Art. 9 of the Constitution, it held that the plaintiffs did not have standing to claim a remedy for that violation. It was, therefore, a win for the government in terms of the specific demands of plaintiffs. Yet it was a major set-back for the government in terms of its policy having been judged as being unconstitutional.
Representatives of the government, including the prime minister, have not only made statements to the effect that the judgment will not change any aspect of government policy, but are rejecting the validity of the decision. Chief Cabinet Secretary Machimura stated that “I cannot accept such a court ruling when the Japanese government has determined that [Baghdad airport] is a non-combat zone.” The court found as a matter of both fact and law, on the basis of the evidence before it and its interpretation of the definition of “combat area” in the Iraq Special Measures Law, that Baghdad was a combat zone.
I only recently submbled upon this video of a segment of the debate in the Japanese Diet in January, in which Fujita Yukihisa, a member of the official opposition, interrogated the government on the validity of American claims that Al Qaeda was the perpetrator of the 9/11 attacks on New York and Washington.
To put this in context, there was intense debate in the Japanese Diet in January, 2008, over the renewal of the Anti-Terrorism Special Measures Law (ATSML), which was the authority for the Japanese Self-Defence Forces (SDF) to provide logistical and humanitarian support for ISAF operations in Afghanistan. The Democratic Party of Japan (DPJ) was opposed to a renewal of the law, in part because there was evidence that the SDF had provided support to U.S. forces involved in operations in Iraq. Ozawa Ichiro, leader of the DPJ, has also taken the position that operations in Afghanistan constitute collective self-defence operations not authorized by the U.N., and thus Japanese participation or support of such operations are a violation of Article 9 of the Constitution (Ozawa’s legal interpretation in this regard is flawed on a number of levels. My view on this can be found here).
It was in the context of those debates that Fujita mounted a focused interrogation on the legitimacy of the government’s characterization of 9/11. The English sub-titled video can be accessed below:
There are 8 episodes of this debate, and the other 7 can be found at here. While the questioning begins with some reasonable lines regarding the distinction between treating 9/11 as a criminal act or an act of war, and the sources of the government’s information regarding the Japanese fatalities in the attacks, by the third episode in the recordings here, Fujita begins presenting “evidence” from conspiracy theory sources to suggest that the damage to the Pentagon could not have been caused by a commercial airliner. It develops into a full-blown questioning of whether Al Qaeda was in fact the perpetrators of the attacks.
The DPJ had a range of very legitimate grounds upon which to object to the extension of the ATSML. It is hard to understand such recourse to conspiracy theories, which can only have undermined the credibility of their entire position on the law. The fundamental issue at stake was the constitutionality of Japan’s participation in collective self-defence and collective secuity operations in general, and the operations in Afghanistan in particular. Fringe theories about the causes of 9/11 are entirely beside the point and counter-productive.
Defence Minister Peter MacKay is reported to be refusing to answer questions as to when he learned of the military’s decision to cease turning detainees over to Afghan authorities (Jan. 26 – “PMO Backtracks”), on grounds that to do so could “endanger the lives of Canadian Forces personnel”.
This is utter rubbish, as there is no conceivable scenario in which the disclosure of when he learned of the decision could be of any value to insurgent forces in Afghanistan, far less impact on any actual operations in Afghanistan. But it is far more dangerous that we increasingly allow our government to use assertions of “national security” and “military operations” considerations to shield their own acts, omissions, and policy decisions from the public eye. The detainee issue involves questions of Canada’s compliance with international law, and is thus of public importance.
There are times when national security requires secrecy, but we must be rigorous in demanding that the government justify with precision their attempts to invoke such secrecy. The media, in particular, should demand explanations of public figures as to how, exactly, the disclosure that is being refused would pose a threat to national security.
It is useful to compare this position with the 1995 judgment of the Supreme Court of Israel, in which the Court rejected government arguments that it could find ex ante authority for harsher interrogation techniques in the principle of necessity.
