New Earmark Rules Have Lobbyists Scrambling
By ERIC LICHTBLAU
New York Times
Published: March 11, 2010
WASHINGTON — Jolted by a sudden tightening of the rules, lobbyists and military contractors who have long relied on lucrative earmarks from Congress were scrambling Thursday to find new ways to keep the federal money flowing.
“The playing field has changed dramatically,” said Michael H. Herson, a lobbyist in Washington whose firm, American Defense International, represents numerous defense industry contractors who have already put in their requests this year for earmark money.
Those clients, who along with hundreds of other businesses got $1.7 billion last year through the controversial practice of awarding earmarks, will now be barred from receiving money under a new policy adopted Wednesday by Democrats on the House Appropriations Committee.
House Republicans, seeking to outdo the Democrats in ethics reform, went even further Thursday by agreeing to swear off all earmarks, for both nonprofit and commercial organizations, for the next year.
“This is the best day we’ve had in a while,” said Representative Jeff Flake, an Arizona Republican who has been a fierce opponent of earmarks — no-bid contracts directed by lawmakers — but had found little support among Republican colleagues before this week. “In terms of us getting this moratorium, the stars were aligned. What the Democrats did certainly motivated the Republicans.”
Senate leaders, however, have not rushed to follow the House, a situation that would set up a clash when the two chambers try to reconcile their spending bills.
No one was willing to predict on Thursday how that confrontation might play out. Meanwhile, defense contractors and the “K Street” lobbyists in Washington who often represent them were planning new ways of packaging their financing requests — and trying to keep the revenue coming in.
Some firms talked of partnering with hospitals, universities and other nonprofit organizations in seeking federal money, an idea that Congressional officials said might not be allowed under the new rules. Others said they planned to become more aggressive about applying directly to the Pentagon and other federal departments and agencies, and not Congress, for grant money. Still others are warning their clients to diversify their financing sources and become less reliant on Washington.
“For firms that have made their living on getting earmarks for their clients, this is a sea change,” said Joseph M. Donovan, managing partner at Nelson Mullins Public Strategies Group, a Boston lobbying firm that represents about 50 private and public clients. “It fundamentally changes their business model.”
Mr. Donovan said his company had anticipated a sharp cutback in earmarks because of the political mood in Washington and began taking steps to help clients navigate the new landscape. That includes hiring an in-house writer to help them apply for federal grants directly from executive branch agencies instead of Congress.
Because that grant money is usually awarded based on competitive bids, he said it would be harder for smaller companies with promising research-and-development ideas. Contractors will have to be “more strategic” in their thinking, he said, “because I don’t want to be in the position of telling them that things are being done through a wink and nod and you’re just going to get a million dollars.”
In the Senate, some lawmakers have defended earmarks as a necessary tool for Congress to exercise the power of the purse and influence federal spending. Supporters say that for every “Bridge to Nowhere,” the Alaska earmark project that became infamous five years ago, there are worthy projects that get less attention.
As one example, supporters pointed to the earmarking of tens of millions of dollars in the 1990s to General Atomics and other military contractors for early development of what became the Predator program, the unmanned drones now used frequently in airstrikes in Afghanistan. Senator Daniel K. Inouye, the Hawaii Democrat who leads the Senate Appropriations Committee, said that if the House ban on commercial earmarks had been in effect then, “we would not have the Predator today.”
Limiting earmarks to nonprofit recipients is not necessarily a cure-all. For example, Representative John P. Murtha, the Pennsylvania Democrat famous for his earmarking largess, set up the Concurrent Technologies Corporation in his district in the 1980s as a nonprofit research center for metalworking, and he helped guide more than $1 billion in defense earmarks to it before he died last month.
Executives at Concurrent contributed frequently to Mr. Murtha’s campaigns. The group has come under scrutiny by F.B.I. investigators looking into pay-to-play allegations against the now-defunct lobbying firm P.M.A., which represented Concurrent and other clients that got earmarks.
Whether earmark money will dry up complete
Showing posts with label Defense. Show all posts
Showing posts with label Defense. Show all posts
Friday, March 12, 2010
Wednesday, October 07, 2009
No War Reparations This Year
News from Congresswoman Madeleine Z. Bordallo
Conference Committee Reaches Compromise on War Claims in FY10 National Defense Authorization Act:
Hearings and a Commitment to Readdress War Claims in NDAA FY 2011 Bill Secured
FOR IMMEDIATE RELEASE – October 7, 2009 – Washington, D.C. –
Congresswoman Madeleine Z. Bordallo today announced that a compromise has been reached on H.R. 44, the Guam World War II Loyalty Recognition Act, as part of the final defense authorization bill that was reported out of Conference Committee. Earlier today, leaders from the House Armed Services Committee and the Senate Armed Services Committee signed off on the Conference Report for the National Defense Authorization Act for Fiscal Year 2010. The conference report has been referred to the House Committee on Rules and is expected to be debated and voted on by the full House of Representatives Thursday afternoon. The bill will then be sent over to the Senate for their consideration and a vote on final passage. If approved by the Senate the bill will be sent to the President for his signature.
Over the past month, leaders of the House and Senate Armed Services Committee have been in negotiations to resolve the differences between the House and Senate defense authorization bills. During these negotiations, Senator Carl Levin, Chairman of the Senate Armed Services Committee, and Senator John McCain, Ranking Republican Member of the Senate Armed Services Committee, raised serious concerns about keeping war claims in the final defense authorization bill. Their objections focused on two areas: 1) The precedent that might be set for future defense authorization bills if war claims remained in this year’s final defense bill, and 2) The payment of claims for personal injury to spouses and children of survivors who have since passed away after World War II.
Chairman Levin and Ranking Member McCain offered to keep war claims in the final defense bill if claims were awarded solely to those killed during the war and to living survivors of the occupation. Congresswoman Bordallo rejected this counter proposal. However, a compromise was reached whereby the House Armed Services Committee and the Senate Armed Services Committee will hold hearings on H.R. 44 and that the issue will be again be addressed in the National Defense Authorization Act for Fiscal Year 2011 if it has not been resolved by other legislative means in the Senate by next year.
“I did not accept the offer from the Senate conferees because it would not recognize all of those who endured Guam’s occupation,” Congresswoman Madeleine Z. Bordallo said today. “While I am disappointed that H.R. 44 was not included in the final defense authorization bill, the compromise that was reached allows another opportunity to build on the progress we have made and to bring closure to this issue within a year. I believe that hearings on H.R. 44 would allow the Senate’s concerns to be aired openly, and to have our concerns heard by the House and Senate Armed Services Committees. I will continue to build on the support that we have received from the House leadership, the Obama Administration and key committees in the Senate. I believe that our local leaders and our community would use this opportunity to help us make Guam’s case for H.R. 44 and for full inclusion of all those affected by the occupation. We are on a path to closure, and we have additional time to make our case. I hope that the commitments made by the House and Senate conferees to hold hearings and to readdress war claims in next year’s bill will give us the best opportunity to resolve this issue and to finally have closure.”
# # #
Contact: Matthew Mateo in Washington, D.C. at 202-225-1188 or Derek Mandell at 671-477-4272/4.
Conference Committee Reaches Compromise on War Claims in FY10 National Defense Authorization Act:
Hearings and a Commitment to Readdress War Claims in NDAA FY 2011 Bill Secured
FOR IMMEDIATE RELEASE – October 7, 2009 – Washington, D.C. –
Congresswoman Madeleine Z. Bordallo today announced that a compromise has been reached on H.R. 44, the Guam World War II Loyalty Recognition Act, as part of the final defense authorization bill that was reported out of Conference Committee. Earlier today, leaders from the House Armed Services Committee and the Senate Armed Services Committee signed off on the Conference Report for the National Defense Authorization Act for Fiscal Year 2010. The conference report has been referred to the House Committee on Rules and is expected to be debated and voted on by the full House of Representatives Thursday afternoon. The bill will then be sent over to the Senate for their consideration and a vote on final passage. If approved by the Senate the bill will be sent to the President for his signature.
Over the past month, leaders of the House and Senate Armed Services Committee have been in negotiations to resolve the differences between the House and Senate defense authorization bills. During these negotiations, Senator Carl Levin, Chairman of the Senate Armed Services Committee, and Senator John McCain, Ranking Republican Member of the Senate Armed Services Committee, raised serious concerns about keeping war claims in the final defense authorization bill. Their objections focused on two areas: 1) The precedent that might be set for future defense authorization bills if war claims remained in this year’s final defense bill, and 2) The payment of claims for personal injury to spouses and children of survivors who have since passed away after World War II.
Chairman Levin and Ranking Member McCain offered to keep war claims in the final defense bill if claims were awarded solely to those killed during the war and to living survivors of the occupation. Congresswoman Bordallo rejected this counter proposal. However, a compromise was reached whereby the House Armed Services Committee and the Senate Armed Services Committee will hold hearings on H.R. 44 and that the issue will be again be addressed in the National Defense Authorization Act for Fiscal Year 2011 if it has not been resolved by other legislative means in the Senate by next year.
“I did not accept the offer from the Senate conferees because it would not recognize all of those who endured Guam’s occupation,” Congresswoman Madeleine Z. Bordallo said today. “While I am disappointed that H.R. 44 was not included in the final defense authorization bill, the compromise that was reached allows another opportunity to build on the progress we have made and to bring closure to this issue within a year. I believe that hearings on H.R. 44 would allow the Senate’s concerns to be aired openly, and to have our concerns heard by the House and Senate Armed Services Committees. I will continue to build on the support that we have received from the House leadership, the Obama Administration and key committees in the Senate. I believe that our local leaders and our community would use this opportunity to help us make Guam’s case for H.R. 44 and for full inclusion of all those affected by the occupation. We are on a path to closure, and we have additional time to make our case. I hope that the commitments made by the House and Senate conferees to hold hearings and to readdress war claims in next year’s bill will give us the best opportunity to resolve this issue and to finally have closure.”
# # #
Contact: Matthew Mateo in Washington, D.C. at 202-225-1188 or Derek Mandell at 671-477-4272/4.
Sunday, July 12, 2009
What's Behind Abercrombie's Ammendment?
What’s behind the Abercrombie amendment?
Sunday, 12 July 2009 23:49 by Jayne Flores
The Marianas Variety
It’s a trade off: the long-awaited payment of war reparations to our dwindling number of survivors of the Japanese occupation, for a Hawaii-based wage rate for the buildup.
That seems to be the most logical reason behind Hawaii Rep. Neil Abercrombie’s two additional amendments to the National Defense Authorization Act for Fiscal Year 2010.
Abercrombie is running for governor, and if he can boost his state’s struggling economy by giving construction workers jobs on Guam that pay just as much as if they were working in Hawaii, it would be a large feather in his political cap. It’s a cap that, according to a candidate watchdog web site, has been paid for with contributions from the likes of Lockheed Martin, BAE Systems, and 21st Century Systems, all military contractor heavyweights.
On the other side, we’re getting to the point that if we don’t settle this war claims issue soon, there won’t be any WWII survivors left to receive the money.
Abercrombie’s first amendment requires that Hawaii construction wage rates, which are approximately double what construction workers on Guam are paid, will apply to all build-up related projects funded with money specifically earmarked for the build-up.
The second amendments says that not more than 30 percent of the total hours worked per month on a buildup construction project may be performed by foreign workers, or workers holding temporary work visas.
So we’ve now got requirements that the Defense Department has to pay everyone who works on a buildup project those high Hawaii wage rates, and on each of the jobs, 70 percent of the work hours have to be worked by U.S. workers.
Obviously, Abercrombie is trying to prevent jobs going to foreign workers while construction workers in his state and other states are out of work. His amendment makes perfect sense if you’re a senator watching unemployment rates skyrocket in your state, or watching your state hand out vouchers for payment because it is broke.
This amendment seems to strike fear in the hearts of contractors on Guam and the overall Guam business community. They’ve been collectively saying that doubling wage rates for these projects might kill the buildup, or cause a domino effect and increase the cost of living on the island. But would it?
The large contractors that will be paying these higher rates already pay similar rates in many states. According to www.payscale.com, journeyman electricians make an average of $25.44 an hour in the states. Carpenters make from $22.33 to $32.43, depending on where they work. So these contractors’ bids will reflect the Hawaii-based wage rates accordingly. It’s the Department of Defense that will have to fork out the big bucks.
Local contractors are not getting these jobs – that’s the word through the grapevine. They may get subcontracts, but they can work the higher wages into their subcontract bids. So the local contractors won’t actually have to pay these rates, because Abercrombie’s amendment is specific to the buildup, not to the prevailing wage rate on Guam.
What will happen, though, is that the buildup will create two classes of H-2 workers and local workers, those who work on federal projects and are paid the higher wages, and those who work on local projects and are paid Guam’s prevailing construction wage rates. This could cause some animosity among workers within a company, especially among foreign workers who might fight over who gets to work the 30 percent hours on federal projects.
The higher wage rate might actually work in Guam’s favor. Although stateside workers will probably send home a significant portion of their paychecks if they don’t move their families out here, rest assured, they’ll frequent local restaurants and other establishments, and spend more of their money here than would foreign workers, who as a general rule send home most of their paychecks.
The defense budget bill, including the war claims and Abercrombie amendments, is now in the U.S. Senate. What senators are going to have to decide is whether they want to increase the cost of the buildup in order to put more Americans back to work, or scratch the whole bill and start over. Or, they could take out Abercrombie’s amendments, or the war claims amendment, or both.
At this point, anything can happen. But having to deal with the higher buildup wages won’t be as devastating as will having the war claims legislation slip through our fingers once again.
If this is the deal – we should take it.
Sunday, 12 July 2009 23:49 by Jayne Flores
The Marianas Variety
It’s a trade off: the long-awaited payment of war reparations to our dwindling number of survivors of the Japanese occupation, for a Hawaii-based wage rate for the buildup.
That seems to be the most logical reason behind Hawaii Rep. Neil Abercrombie’s two additional amendments to the National Defense Authorization Act for Fiscal Year 2010.
Abercrombie is running for governor, and if he can boost his state’s struggling economy by giving construction workers jobs on Guam that pay just as much as if they were working in Hawaii, it would be a large feather in his political cap. It’s a cap that, according to a candidate watchdog web site, has been paid for with contributions from the likes of Lockheed Martin, BAE Systems, and 21st Century Systems, all military contractor heavyweights.
On the other side, we’re getting to the point that if we don’t settle this war claims issue soon, there won’t be any WWII survivors left to receive the money.
Abercrombie’s first amendment requires that Hawaii construction wage rates, which are approximately double what construction workers on Guam are paid, will apply to all build-up related projects funded with money specifically earmarked for the build-up.
The second amendments says that not more than 30 percent of the total hours worked per month on a buildup construction project may be performed by foreign workers, or workers holding temporary work visas.
So we’ve now got requirements that the Defense Department has to pay everyone who works on a buildup project those high Hawaii wage rates, and on each of the jobs, 70 percent of the work hours have to be worked by U.S. workers.
Obviously, Abercrombie is trying to prevent jobs going to foreign workers while construction workers in his state and other states are out of work. His amendment makes perfect sense if you’re a senator watching unemployment rates skyrocket in your state, or watching your state hand out vouchers for payment because it is broke.
This amendment seems to strike fear in the hearts of contractors on Guam and the overall Guam business community. They’ve been collectively saying that doubling wage rates for these projects might kill the buildup, or cause a domino effect and increase the cost of living on the island. But would it?
The large contractors that will be paying these higher rates already pay similar rates in many states. According to www.payscale.com, journeyman electricians make an average of $25.44 an hour in the states. Carpenters make from $22.33 to $32.43, depending on where they work. So these contractors’ bids will reflect the Hawaii-based wage rates accordingly. It’s the Department of Defense that will have to fork out the big bucks.
Local contractors are not getting these jobs – that’s the word through the grapevine. They may get subcontracts, but they can work the higher wages into their subcontract bids. So the local contractors won’t actually have to pay these rates, because Abercrombie’s amendment is specific to the buildup, not to the prevailing wage rate on Guam.
What will happen, though, is that the buildup will create two classes of H-2 workers and local workers, those who work on federal projects and are paid the higher wages, and those who work on local projects and are paid Guam’s prevailing construction wage rates. This could cause some animosity among workers within a company, especially among foreign workers who might fight over who gets to work the 30 percent hours on federal projects.
The higher wage rate might actually work in Guam’s favor. Although stateside workers will probably send home a significant portion of their paychecks if they don’t move their families out here, rest assured, they’ll frequent local restaurants and other establishments, and spend more of their money here than would foreign workers, who as a general rule send home most of their paychecks.
The defense budget bill, including the war claims and Abercrombie amendments, is now in the U.S. Senate. What senators are going to have to decide is whether they want to increase the cost of the buildup in order to put more Americans back to work, or scratch the whole bill and start over. Or, they could take out Abercrombie’s amendments, or the war claims amendment, or both.
At this point, anything can happen. But having to deal with the higher buildup wages won’t be as devastating as will having the war claims legislation slip through our fingers once again.
If this is the deal – we should take it.
Friday, November 09, 2007
Wednesday, May 16, 2007
Defending Japan's Constitution
Who will defend Japan's Constitution?
April 29, 2007
Special to The Japan Times
Prime Minister Shinzo Abe announced at the beginning of April that the government was establishing a "panel of experts" to examine the question of whether to "revise the current interpretation of the Constitution," in order to permit Japan to engage in collective self-defense activities.
This is an outrageous proposition from the perspective of constitutional law, and yet the announcement appears to have been met with little more than a murmur. Regardless of whether one may feel strongly that Japan ought to participate in collective self-defense operations, or that Article 9 should be amended, this latest step in the emasculation of Article 9 seriously endangers the normative power and integrity of the entire Constitution.
First, let us recall that there is already a strong movement toward an extensive revision of the Constitution, in accordance with the amendment process provided for in the Constitution. The government is currently pushing a referendum law through the legislature for the purpose of implementing that process.
While the DPJ opposes the current version of the proposed referendum law in its detail, it is not opposed in principle. While there continue to be voices of dissent in both parties, the leadership of both the LDP and the DPJ seek to amend Article 9 specifically to permit Japan's participation in collective self-defense and other international peace and security operations. If they are able to persuade a sufficient number of both houses of the Diet and the population of Japan, the Constitution will be so amended. If they cannot, then it is the will of the nation that it not be so amended.
Second, it is entirely nonsensical for a government to speak of "revising an interpretation" of a constitution as a matter of formal policy. Constitutions can be revised through amendment, and the interpretations of constitutions may evolve incrementally over time through court decisions, but governments do not "revise" or establish "new" interpretations of a constitution. Interpretation of the Constitution of Japan is the purview of the courts, and the amending process provided for in the Constitution is the sole mechanism for formally changing the Constitution itself.
The amending process of a constitution is set in place both to ensure an orderly mechanism for change, but also to ensure that the pre-commitments to the fundamental principles established in the constitution cannot be too easily changed. The Constitution of Japan provides for a process that requires, in addition to the consent of two thirds of both houses of the Diet, the vote of the people of Japan to endorse any proposed revision. The government cannot short-circuit that process by way of some back-room "re-interpretation."
Which brings us to the third problematic aspect of the prime minister's announcement. Aside from the fact that it does an end run around the amending process, the "revision" study is being conducted by an extra-constitutional body appointed by the executive. Of the three branches of government, the executive is the least empowered to have any say in how the Constitution is to be interpreted. It should be recalled that the Constitution provides that the legislature (the Diet) is the highest organ of state (Art. 41); that the Constitution is the supreme law of the nation, and that no law, ordinance or other act of government that is contrary to the Constitution is valid (Art. 98); and that the courts are vested with the authority to interpret the Constitution and determine the constitutionality of any law, order, regulation or other official act (Art. 81).
It is not the role of the executive to be mandating interpretations of the Constitution, and any action that the government may take on the basis of some new "re-interpretation" may still be held to be unconstitutional and invalid by the courts. The body to which the executive has turned to do the actual work of analyzing the issue of interpretation, is one that is not provided for in the Constitution at all -- the "panel of experts" is an extra-constitutional body that has no authority whatsoever to interpret the Constitution.
Finally, the "revision" that is sought is patently contrary to any reasonable interpretation of Article 9 of the Constitution. Article 9 provides, in part, that "the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes." It also provides that the "right of belligerency of the state will not be recognized."
Using Japanese military forces, including Japan-based antimissile defense systems and Japanese naval vessels operating with allied forces in international waters, to engage the military forces of other countries when Japan is not directly under attack, can only ever be interpreted as the use of force for means of settling international disputes.
Moreover, Japan would most certainly expect to enjoy all the rights, protections and obligations under the laws of war that belligerents are entitled to under international law in such circumstances, a status that Article 9 specifically renounces. The Supreme Court of Japan has held that while Japan retains a right to self-defense under Article 9, it is limited to only such measures that are for the protection of Japan (in the so-called Sunakawa case).
The Cabinet Legislation Bureau has consistently maintained that Article 9 forbids participation in collective self-defense or the deployment of troops abroad for military operations. For the government to now try to argue that notwithstanding what the Constitution plainly states, and what the courts have said it means, and what past governments have accepted as binding, that Japan can now do the opposite, is to do great violence to the Constitution of Japan.
There is an amendment process for a reason, and it can be used to achieve the objectives of having Japan play a more robust role in the area of international collective security. Careful study leading up to such amendments will also ensure that other checks and balances can be built into the revised Constitution to ensure that there is sufficient democratic accountability and civilian control as Japan engages in more extensive international operations. To try to circumvent that process undermines the entire structure of the Constitution.
If Article 9 can be merely interpreted away, why not other provisions? A democracy allows its Constitution to be undermined at its peril, and the erosion of constitutional controls on a country seeking greater military influence will almost certainly alarm its neighbors.
Craig Martin, a Canadian lawyer and a graduate of Osaka University Graduate School of Law, is currently working on a doctorate at the University of Pennsylvania, focusing on the interaction of international and constitutional constraints on the use of armed force.
The Japan Times: Sunday, April 29, 2007
(C) All rights reserved
April 29, 2007
Special to The Japan Times
Prime Minister Shinzo Abe announced at the beginning of April that the government was establishing a "panel of experts" to examine the question of whether to "revise the current interpretation of the Constitution," in order to permit Japan to engage in collective self-defense activities.
This is an outrageous proposition from the perspective of constitutional law, and yet the announcement appears to have been met with little more than a murmur. Regardless of whether one may feel strongly that Japan ought to participate in collective self-defense operations, or that Article 9 should be amended, this latest step in the emasculation of Article 9 seriously endangers the normative power and integrity of the entire Constitution.
First, let us recall that there is already a strong movement toward an extensive revision of the Constitution, in accordance with the amendment process provided for in the Constitution. The government is currently pushing a referendum law through the legislature for the purpose of implementing that process.
While the DPJ opposes the current version of the proposed referendum law in its detail, it is not opposed in principle. While there continue to be voices of dissent in both parties, the leadership of both the LDP and the DPJ seek to amend Article 9 specifically to permit Japan's participation in collective self-defense and other international peace and security operations. If they are able to persuade a sufficient number of both houses of the Diet and the population of Japan, the Constitution will be so amended. If they cannot, then it is the will of the nation that it not be so amended.
Second, it is entirely nonsensical for a government to speak of "revising an interpretation" of a constitution as a matter of formal policy. Constitutions can be revised through amendment, and the interpretations of constitutions may evolve incrementally over time through court decisions, but governments do not "revise" or establish "new" interpretations of a constitution. Interpretation of the Constitution of Japan is the purview of the courts, and the amending process provided for in the Constitution is the sole mechanism for formally changing the Constitution itself.
The amending process of a constitution is set in place both to ensure an orderly mechanism for change, but also to ensure that the pre-commitments to the fundamental principles established in the constitution cannot be too easily changed. The Constitution of Japan provides for a process that requires, in addition to the consent of two thirds of both houses of the Diet, the vote of the people of Japan to endorse any proposed revision. The government cannot short-circuit that process by way of some back-room "re-interpretation."
Which brings us to the third problematic aspect of the prime minister's announcement. Aside from the fact that it does an end run around the amending process, the "revision" study is being conducted by an extra-constitutional body appointed by the executive. Of the three branches of government, the executive is the least empowered to have any say in how the Constitution is to be interpreted. It should be recalled that the Constitution provides that the legislature (the Diet) is the highest organ of state (Art. 41); that the Constitution is the supreme law of the nation, and that no law, ordinance or other act of government that is contrary to the Constitution is valid (Art. 98); and that the courts are vested with the authority to interpret the Constitution and determine the constitutionality of any law, order, regulation or other official act (Art. 81).
It is not the role of the executive to be mandating interpretations of the Constitution, and any action that the government may take on the basis of some new "re-interpretation" may still be held to be unconstitutional and invalid by the courts. The body to which the executive has turned to do the actual work of analyzing the issue of interpretation, is one that is not provided for in the Constitution at all -- the "panel of experts" is an extra-constitutional body that has no authority whatsoever to interpret the Constitution.
Finally, the "revision" that is sought is patently contrary to any reasonable interpretation of Article 9 of the Constitution. Article 9 provides, in part, that "the Japanese people forever renounce war as a sovereign right of the nation and the threat or use of force as means of settling international disputes." It also provides that the "right of belligerency of the state will not be recognized."
Using Japanese military forces, including Japan-based antimissile defense systems and Japanese naval vessels operating with allied forces in international waters, to engage the military forces of other countries when Japan is not directly under attack, can only ever be interpreted as the use of force for means of settling international disputes.
Moreover, Japan would most certainly expect to enjoy all the rights, protections and obligations under the laws of war that belligerents are entitled to under international law in such circumstances, a status that Article 9 specifically renounces. The Supreme Court of Japan has held that while Japan retains a right to self-defense under Article 9, it is limited to only such measures that are for the protection of Japan (in the so-called Sunakawa case).
The Cabinet Legislation Bureau has consistently maintained that Article 9 forbids participation in collective self-defense or the deployment of troops abroad for military operations. For the government to now try to argue that notwithstanding what the Constitution plainly states, and what the courts have said it means, and what past governments have accepted as binding, that Japan can now do the opposite, is to do great violence to the Constitution of Japan.
There is an amendment process for a reason, and it can be used to achieve the objectives of having Japan play a more robust role in the area of international collective security. Careful study leading up to such amendments will also ensure that other checks and balances can be built into the revised Constitution to ensure that there is sufficient democratic accountability and civilian control as Japan engages in more extensive international operations. To try to circumvent that process undermines the entire structure of the Constitution.
If Article 9 can be merely interpreted away, why not other provisions? A democracy allows its Constitution to be undermined at its peril, and the erosion of constitutional controls on a country seeking greater military influence will almost certainly alarm its neighbors.
Craig Martin, a Canadian lawyer and a graduate of Osaka University Graduate School of Law, is currently working on a doctorate at the University of Pennsylvania, focusing on the interaction of international and constitutional constraints on the use of armed force.
The Japan Times: Sunday, April 29, 2007
(C) All rights reserved
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