The Asia-Pacific Journal, Vol. 13, Issue. 24, No. 3, June 22, 2015
Champagne in Washington
Japan is facing a constitutional crisis. The ruling coalition seeks to pass legislation that would overturn the nation's longstanding prohibition of "collective self-defense." Expert opinion is nearly unanimous that these proposals violate Article 9, the peace provision of Japan's Constitution. As of June 12, 2015, 225 constitutional scholars signed a public declaration condemning the bills as unconstitutional.(1) The list includes faculty members from every respected university in Japan. But never mind. Prime Minister Shinzo Abe and his friends in Washington claim to know better.
Mr. Abe was the toast of the town in Washington in late April, when he was feted at a state dinner in the East Room of the White House with 200 guests. He also addressed a rare joint session of the Congress. The business end of Abe's visit included discussion of the Trans-Pacific Partnership and final agreement on a new set of guidelines governing joint U.S.-Japan joint defense operations. The new defense guidelines were lauded by American leaders in and out of the government. Defense Secretary Ashton B. Carter described the new guidelines as "a very big change from being locally focused to being globally focused."(2) The pre-existing version was geared exclusively toward the defense of Japan. The big change was the elimination of any geographic restriction, ostensibly committing Japan to join U.S. operations anywhere in the world.(3) In other words, Mr. Abe agreed to commit Japan to "collective self-defense."
To fulfill this commitment, Abe must either revise Article 9 of the Constitution or act in defiance of its longstanding restraints. In his every word and gesture on the topic, he expresses his determination to take the latter course. In view of popular opposition and the unified position of Japan's legal community, this action may cement Mr. Abe's reputation as a dangerous ultranationalist unrestrained by the law.
In the words of Professor Kobayashi Setsu of Keio University, enactment of the proposed legislation "would be the beginning of tyranny, that is a destruction of the rule of law."(4) In this article we will explore the grounds for the opinions of Professor Kobayashi and other scholars and the response of leaders of Japan’s ruling coalition.
A Bitter Brew in Tokyo
Is Japan's national policy decided in Tokyo – or Washington? The Prime Minister made his deal in Washington before submitting legislation to Japan’s national Diet. This seemed a minor detail at the time. The ruling coalition holds thumping majorities in both houses of the Diet, so passage of the national security bills would be a mere formality. Or so he thought.
The coast was clear when the Abe Cabinet submitted its package of bills to the Diet on May 15.5 These proposals would amend the Self-Defense Forces Act and make other changes that would authorize the deployment of Japan's Self-Defense Forces on missions outside of Japan and exercise military force in concert with foreign militaries even in cases where Japan is not under attack.
However, a lightning bolt struck on June 4 when three constitutional scholars appeared as expert witnesses before a Diet "constitution study" committee appointed to examine Abe’s plans to amend the Constitution. This committee was operating separately from the special committee appointed to consider the national security bills. Opposition Diet members naturally asked the experts to comment on the national security bills, the hottest constitutional issue of the day. The three men, professors of Waseda and Keio, generally regarded as Japan's most prestigious private universities, all testified that the proposed legislation violates Article 9.(6)
Three constitutional scholars--from left: Hasebe Yasuo, Kobayashi Setsu and Sasada Eiji--attend a session of the Lower House Commission on the Constitution on June 4. (The Asahi Shimbun)
Abe Administration leaders were blindsided. Prime Minister Abe himself was in Germany at G-7 Summit talks. When his second in command, the usually unflappable Chief Cabinet Secretary Suga Yoshihide was asked to respond to the professors' remarks, he blurted out "there are many other famous constitutional experts who support the government position."(7) As the nation would soon learn, Suga's statement was patently false.
The scholarly community lined up solidly behind their three colleagues. A formal declaration condemning the defense bills was issued at a press conference on June 3, the day before their testimony, with the names of 176 constitutional law professors attached.(8) This number has gradually increased since and numerous bar associations and citizens groups have issued similar declarations.(9)
The opposition of the experts made headlines and has remained a top news story since. Among the major news media, the popular nightly news television program Hodo Station attracted much attention with its independent survey of constitutional scholars. During its June 15 broadcast, Hodo Station announced the results. Among the 151 responses received, 127 scholars stated that the bills are unconstitutional; 19 said there are grounds to believe the bills may be constitutional, and only 3 said there is no constitutional violation.(10)
The Right Hand Knows Not…
Every news report on the June 4 testimony of the three scholars emphasized that one of them had been selected by members of the Prime Minister's own political party. This is Professor Hasebe Yasuo, a prolific scholar who served as a professor of constitutional law at the University of Tokyo from 1993 through 2014. Hasebe is so highly respected that when Todai launched its professional law school in 2004, he was appointed Dean. Hasebe joined Waseda University in 2014. If the LDP Dietmembers were seeking a solid professional opinion on the constitutionality of their proposals, they made a good choice.(1)
Hasebe was joined by Professors Sasada Eiji, also of Waseda, and Kobayashi Setsu, a constitutional law specialist who has taught at Keio University since 1974 and attained emeritus status in 2014. As reported by The Japan Times, in his June 4, 2015 testimony, Hasebe said: "Allowing the use of the right of collective self-defense cannot be explained within the framework of the basic logic of the past government views" of the Constitution, and that the government's reinterpretation of Article 9 "considerably damages legal stability and violates the Constitution." Sasada and Kobayashi made similar statements. Ironically, their appearance had no direct connection to the defense bill debate.
Throughout his career, Prime Minister Abe's highest priority has been his campaign to roll back the 1947 Constitution. He and his closest followers see the Constitution as a national humiliation, imposed on a defenseless Japan by foreign military forces in the immediate aftermath of World War II.(12) Since taking office in December 2012, Abe has repeatedly declared his intention to push this constitutional agenda forward, but the Diet has yet to receive an actual amendment proposal.
In preparation for this historic step, both houses of the Diet have appointed "constitution study" committees charged with discussing revision proposals. The lower house committee held its first meeting since the December 2014 election on May 7 under the chairmanship of veteran Diet member Funada Hajime. (Funada also serves as chair of the LDP headquarters on constitutional revision.) His assignment is to find common ground with opposition parties by putting forth uncontroversial proposals, such as adding constitutional protection for the environment, in order to prime the pump of constitutional change.(13)
Mr. Funada was expected to step softly, avoiding controversial topics -- especially collective self-defense. Public opinion polls show large majorities are opposed. For example, a recent Nippon Television survey showed 62.5% of respondents were opposed to the exercise of collective self-defense and 63.7% were against the enactment of the legislation in the current session of the Diet.(14) Directing the people's attention in this direction was anathema. Apparently, the hapless Mr. Funada did not foresee that committee members from opposition parties might not follow his script. In the aftermath of the June 4 incident, he announced that there will be no further meetings of the committee for the foreseeable future.(15)
The Scholars' Declaration
The Abe administration’s first act in this drama played in July 2014, when a Cabinet resolution declared a new interpretation of constitution Article 9 that would allow collective self-defense.(16) Scholars, bar associations, opposition politicians and others attacked the Cabinet resolution, but the controversy faded into the background until the scholars’ explosive testimony on June 4.
The first paragraph of Article 9 states that Japan "forever renounces war…and the threat or use of force as a means of settling international disputes." The second paragraph states: "In order to accomplish the aim of the preceding paragraph, land sea, and air forces, as well as other war potential, will never be maintained."(17)
Throughout the postwar era, successive Cabinets have consistently interpreted these words to mean that Article 9 strictly limits the use of military force to Japan's own self-defense. For example, in a statement to the Diet in 1973, Prime Minister Tanaka Kakuei said the government may use military force only when three conditions are present: “(1) Japan itself is under ongoing or imminent, unlawful attack emanating from abroad, (2) to terminate the attack, use of force is necessary, and (3) the extent of the use of force is proportionate to the end to be achieved."(18) Until July 1, 2014, all administrations rigorously held the line that Article 9 does not allow collective self-defense.
The scholars' June 3rd declaration attacks both the procedure through which the Abe administration acted and the substance of the bills it has placed before the Diet. Drafters of the declaration sought to present a few basic points in a manner that would attract the largest number of signatories. Accordingly, the declaration is brief and avoids detailed discussion of specific statutory language.
Regarding procedure, the scholars tell us that for more than sixty years successive Japanese governments have held the position that collective self-defense is prohibited by Article 9. They express outrage that a single Cabinet would presume to overturn this longstanding constitutional principle without Diet deliberations or thorough engagement with the Japanese people. They also point to the April 27 U.S.-Japan agreement on defense guidelines. According to the scholars, this purports to establish a "global U.S.-Japan alliance" which exceeds the bounds of the current U.S.-Japan Security Treaty. The Treaty itself contemplates military action only in cases of "armed attack against either Party in the territories under the administration of Japan."(19) Moreover, on April 29, Prime Minister Abe told the joint session of the U.S. Congress that legislation would be passed "by the end of summer." According to the scholars, such tactics "trample" on the principle of popular sovereignty and treat the Diet, identified as the "highest organ of state power" in Constitution Article 41, as if it were nothing more than Abe's servant.
Of course, the true procedure for amending the Constitution is set forth in Article 96. So far Mr. Abe, in recognition of strong popular opposition, has disdained to follow the constitutional procedure.
Regarding the substance of the bills, the declaration homes in on three points:
First, according to the longstanding government position, Article 9 strictly limits the use of force to the defense of Japan. Among other things, the Abe proposals would authorize the exercise of military force under "conditions that threaten Japan's existence" (sonritsukikijitai). The scholars argue the legislation would replace the longstanding limitation with a standard that is vague and abstract, with no clear boundaries. Because the result could be exercise of military force that goes far beyond self-defense, they say the legislation violates Article 9.This declaration has attracted the signatures of more than two hundred constitutional law professors. Needless to say, each and every one has particular thoughts about Article 9 and the proposed legislation. We can expect such thoughts to appear in many forms in the weeks to come. Their declaration is just a listing of points on which they all agreed in rapid fashion.
Second, they condemn the bill’s authorization of logistical or "rear area support" (kōhōshien) for foreign military forces. They say this would enable SDF units to become components of a unified fighting force (ittaika). Any such operations not strictly in the defense of Japan would violate Article 9. They further note that the legislation would authorize such operations even in the absence of a United Nations resolution and that the Self-Defense Forces might take part in military operations that violate international law. Undoubtedly, the authors had the U.S.-led invasion of Iraq and other operations in the Middle East in mind.
Finally, they condemn language that would enable Self-Defense Forces to participate in an "allied army" (dōmeikoku) structure even in times of peace. They say that amendments to the Self-Defense Forces Act would enable the SDF to participate in joint patrolling and military exercises with U.S. and other foreign forces. Such "allied army" operations could lead to increased tensions with other countries and even to accidental confrontations that bring the risk of military escalation. Moreover, entrusting decisionmaking to military commanders on site at such confrontations would constitute the abdication of political responsibility.
For the scholars, the answer is very clear. As it is presently written, Article 9 does not allow Japan's participation in the collective self-defense operations contemplated by the proposed legislation or by the new U.S.-Japan security guidelines. In order to lawfully authorize such action, the text of the Constitution itself must be revised.
The Government Response
In the aftermath of the scholars' attacks, government spokesmen have scrambled to find counter-arguments.
Their first assignment was to find support for Mr. Suga's comment that "many famous scholars" are aligned with the government. After a search proved largely fruitless, Mr. Suga abandoned this position. In an appearance before Mr. Funada's constitution study committee on June 10, he confessed that only ten scholars who support the government position had been found. He disclosed three names: Momochi Akira, a professor at Nihon University, Nagao Kazuhiro, professor emeritus of Chuo University, and Nishi Osamu, professor emeritus at Komazawa University.(20) Like Prime Minister Abe, these three men are all members of the ultranationalist group Nippon Kaigi, which advocates repeal of Article 9 and takes the position that Japan's imperial armies acted to protect China from western imperialists and other positions that glorify Japan's imperial history.(21) [AD note: Nationalism is a pretty good thing we think, but the Japanese variety historically has been a tenacious and as seen in history, can be a fanatical type of nationalism that is unique among nations. Japanese people themselves are peculiar in the sense that each Japanese is an individual microcosm of the macrocosm that is Japan as a country.]
A second response was delivered in the Diet the following day by LDP Vice President Komura Masahiko, a senior LDP politician who has filled important Cabinet roles, including Minister of Foreign Affairs, and is himself a lawyer. Komura made a two-pronged attack: first, the opinions of scholars are irrelevant, and second, the opinions of scholars cannot be trusted.(22)
On the first count, he stressed that binding interpretations of law are issued by judges, not scholars. Therefore, constitutionality of the government proposals must be considered in light of court precedent, not scholarly opinion. Unfortunately, there is only one Supreme Court precedent that addresses national defense, the 1959 Sunakawa decision. Although Komura sought to construct an argument in favor of collective self-defense based on this precedent, all parties are forced to concede that the Sunakawa decision did not address collective self-defense at all. We'll examine the Sunakawa precedent below.
As for the overall legitimacy of scholarly opinion, Mr. Komura reminded his listeners that back when the SDF was formed in the early 1950s and through much of its history, most scholars claimed the existence of the SDF itself violates Article 9. Komura scoffed at such ivory tower thinking. Important issues of national policy must not be entrusted to such dreamers. Today the SDF enjoys solid support among the Japanese people and obviously serves a most critical role in Japan's national defense.
Circumstances have changed
The strongest argument in favor of the government’s national security bills has nothing to do with law; it is a political argument. Prime Minister Abe and his seconds have ceaselessly repeated the refrain that Japan is in danger. Threats may emanate from North Korea, or China, or unidentified global terrorists, or somewhere else, but there is no time to be lost. To protect Japan from these threats, Japan must follow through on the promises made in Washington and pass legislation that confirms a national commitment to collective self-defense.
In order to support its legislative proposals, the Abe administration released a formal opinion (kenkai) on June 9 that argues collective self-defense is justified because attacks on other countries may threaten the security and even the existence of Japan. This opinion recognizes that another formal opinion issued by the Tanaka administration in 1972 reaches precisely the opposition conclusion: Article 9 prohibits collective self-defense. LDP spokespeople even attempt the Houdini trick of reconciling the two opposite conclusions.
The only apparent way to do so is to loudly declare that circumstances have changed and the Constitution must change with them. In the words of the government's June 9 opinion, "the national security environment surrounding Japan has fundamentally changed due to changes in the power balance and the rapid development of technological breakthroughs, the threat of weapons of mass destruction and other factors…"(23)
Of course, this may be true. But the Constitution is the supreme law of the land(24) and the words of Article 9, that the Japanese people "forever renounce war…and the threat or use of force as a means of settling international disputes," remain unchanged. The interpretation that these words prohibit collective self-defense is very deeply entrenched. If the Abe administration's assessment of the threats and the appropriate response are correct, perhaps those words should be revised.(25)
The Sunakawa Judgment – A Red Herring
When LDP Vice-president Komura presented his defense on June 11, 2015 perhaps he was unaware that the head of the Cabinet Legislation Bureau (CLB), generally viewed as the most authoritative voice in the government on constitutional issues, had shot this down the day before. In response to questioning from an opposition party Diet member on June 10, CLB Chief Yokobatake Yusuke had agreed that the Sunakawa judgment "does not touch upon collective self-defense."(26)
The Sunakawa decision itself was born of a constitutional crisis of another day. That case involved the prosecution of protesters who broke through fencing at a U.S. military base on the western outskirts of Tokyo in 1957. One charge against the protesters involved a special statute which applies only to trespass on U.S. military bases. Defense lawyers argued that this charge should be dismissed because the statute itself was unconstitutional. Why? Because the presence of U.S. military forces in Japan constitutes "war potential" prohibited by Article 9 and therefore, both the U.S.-Japan Security Treaty and the special statute are unconstitutional.
Government prosecutors were stunned by a March 1959 Tokyo District Court judgment that agreed with this reasoning and dismissed charges filed under the special statute. With this decision, Chief Judge Date Akio earned a secure place in Japan’s legal history. The court's action will forever be known among Japanese lawyers as the "Date Judgment."
Of course, the decision was appealed. But it was the midst of the Cold War and the Date Judgment struck at the core of Japan’s defense policy and the U.S. military strategy in Asia. The case required special care.
Government lawyers bypassed the ordinary appellate court, filing a special appeal directly with the Supreme Court. Many years later, documents preserved in the U.S. National Archives would reveal that Chief Justice Tanaka Kotaro consulted with U.S. government officials in deciding how to manage the case.(27) Ultimately, Tanaka persuaded his colleagues to go along in a judgment issued just nine months later that overturned the District Court.
The Supreme Court's majority opinion expressed two separate grounds for its decision. First, the Court said that the prohibition on "war potential" in the second paragraph of Article 9 applies only to Japan's own forces; it does not prohibit the presence of foreign military forces in Japan that are not under the "command and supervision" of Japan. Second, the Court created a "political question doctrine." The presence of U.S. military forces in Japan is authorized by the U.S.-Japan Security Treaty. The District Court reached its judgment by declaring the Treaty and therefore criminal prosecutions under the special statute unconstitutional. The Supreme Court held that the Security Treaty "is featured with an extremely high degree of political consideration," and therefore "unless the said Treaty is obviously unconstitutional and void," decisions concerning its constitutionality should be left to the Cabinet and the Diet and "ultimately to the political consideration of the people, with whom rests the sovereign power of the nation."(28) The Court has not employed this political question doctrine since.
The current fight over the government's national security bills has nothing to do with the grounds for the Supreme Court’s 1959 decision. Instead, it concerns the Court's statement that "there is nothing in Article 9 which would deny the right of self-defense inherent in our nation as a sovereign power."29 This is generally accepted as the only occasion on which the Court has expressly declared that Article 9 allows Japan to engage in self-defense.
Although the facts of the case did not concern "collective self-defense" and the Court's published opinion said nothing about it, this is the language seized upon by Mr. Komura and other LDP spokesmen who have laid claim to the Sunakawa decision as the foundation for the national security bills and the U.S.-Japan guidelines.(30)
Washington's Power Over Japan's National Security Policy
The genesis of Article 9 is found in the post-war occupation. Occupation authorities insisted that Japan's new Constitution include an anti-war clause. Final language was approved by Japan's Diet in 1946 and took effect the following year. It has never been changed.
By 1950, the U.S. was at war in Korea and American leaders had second thoughts about this anti-war provision. From that point until the present, the U.S. government has continuously applied pressure on Japan to put aside Article 9 and join U.S. military operations abroad. Most famously, as President George W. Bush launched war in Iraq, Deputy Secretary of State Richard Armitage insisted to his Japanese counterparts that they "put boots on the ground."(31) Then-Prime Minister Koizumi Junichiro complied, ordering a small force to Iraq despite complaints about the constitutionality of such action.
Another unprecedented court decision addressed the constitutionality of Mr. Koizumi's action. This was a 2008 judgment of the Nagoya High Court. Although the Court decided it was obliged to dismiss the case for lack of standing,(32) it nonetheless took the occasion to deliver its opinion on the constitutionality of SDF actions in the Iraq War theater. The Court was concerned not with the heavily-publicized humanitarian activities at Samawah, but instead with Air Self-Defense flights carrying armed forces in and out of Baghdad. In the Court's words, "In modern warfare, supply activities, such as transport, are an important part of combat activities. ASDF airlifts of armed soldiers in the multinational force to the Baghdad combat zone were acts that could be identified as being involved in the use of force by other nations and the ASDF could be said to have conducted use-of-force actions itself."(33) In the Court's opinion, these actions violated Article 9. These are precisely the kinds of "rear support activities" proposed by LDP spokesmen and identified as unconstitutional by the scholars' declaration of June 2015.(34)
The guidelines agreed in Washington on April 27, 2015 comprise the latest chapter in the saga of American interference in Japan's constitutional processes. The invitation to Mr. Abe to make his proclamation in Washington rather than Japan's own capital shows a disturbing callousness and disregard for Japan's sovereignty. It were as if the Washington mandarins were acting out the very script set out in Gavan McCormack's "Client State" and other writings that describe the extreme servility of LDP politicians to American keepers.(35) Regarding security policy and the rule of law, McCormack writes, "The world's most democratic constitution was put in place, but in practice was subordinate to the security treaty with the U.S."(36) In this case, on April 27 Abe and his American friends went even beyond the treaty by making a deal that it does not authorize.
We are witnessing a severe test for constitutional democracy in Japan. Given the clarity and near-unanimity of the experts' opinions, it seems highly unlikely that the Abe administration can make any compelling legal argument to support its position. If Abe goes ahead, the message that his action defies the constitution will be pounded home ceaselessly in lecture halls and articles published in all forms of the media. Abe's legacy as the man who abandoned the rule of law will be fixed.
Lawrence Repeta is a professor of law at Meiji University in Japan, an Asia-Pacific Journal contributing editor, and a director of Information Access Japan Clearinghouse. He is author of "Limiting Fundamental Rights Protection in Japan – the Role of the Supreme Court," in Critical Issues in Contemporary Japan, edited by Jeff Kingston (Routledge, 2014), "Reserved Seats on Japan's Supreme Court," (Washington University Law Review, 2011) and other writings on Japan's constitution and legal system.
Recommended citation: Lawrence Repeta, "Japan's Proposed National Security Legislation — Will This be the end of Article 9?
The Asia-Pacific Journal, Vol. 13, Issue. 24, No. 3, June 22, 2015
• Lawrence Repeta, A New State Secrecy Law for Japan?
• Craig Martin, "The Case Against Revising Interpretations of the Japanese Constitution"
• Miyazaki Hayao, "Constitutional Amendment is Out of the Question"
• Herbert P. Bix, "Abe Shinzo and the U.S.-Japan Relationship in a Global Context"
• C. Douglas Lummis, "It Would Make No Sense for Article 9 to Mean What it Says, Therefore It Doesn't: The Transformation of Japan's Constitution"
Lawrence Repeta, "Japan's Democracy at Risk - The LDP's Ten Most Dangerous Proposals for Constitutional Change"
1 The text of the scholars' declaration and list of signatories is available here.
2 See Julie Hirschfeld Davis and Michael R. Gordon, "Japan and US set new rules for military cooperation", The New York Times, April 27, 2015.
3 The text of the guidelines are available here.
4 Remarks at a press conference, Foreign Correspondents Club of Japan, June 15, 2015.
5 See here.
6 See here and here. Professor Setsu Kobayashi of Keio University scoffed, "There are hundreds of constitutional scholars in Japan. There are about two or three who would say the law is constitutional."
Asahi Shimbun, June 5, 2015, p. 4, Japanese edition. (Translated by Lawrence Repeta)
7 Asahi Shimbun, June 11, p.2.
8 The text of the scholars' declaration and list of signatories is available here. Individual scholars can be expected to blast the government proposals at every opportunity. E.g., (more scholars say bills are unconstitutional). See here.
9 A declaration by the Japan Civil Liberties Union was released on June 12. It is available here.
10 The scholars' declarations have been followed by similar statements from bar associations and citizen groups all over the country. A statement opposing the bills was issued by the national bar association on May 14, the day the bills were approved by the Cabinet. Text (in Japanese) available here.
11 The LDP also selected Professor Hasebe to testify on behalf of the State Secrets Act in 2013. He supported the bill.
12 The most comprehensive statement of the LDP plan for an "autonomous Constitution" free of the taint of foreign influence appears in a document issued by the Party on April 28, 2012, a date selected to commemorate the sixtieth anniversary of the end of the postwar occupation. See Lawrence Repeta, "Japan's Democracy at Risk – The LDP's Ten Most Dangerous Proposals for Constitutional Change," The Asia-Pacific Journal, Vol. 11, Issue 28, No. 3, July 15, 2013.
13 "LDP sets out constitutional amendment strategy; DPJ, Komeito preach caution," May 08, 2015.
14 Linda Sieg, "Abe's support rate lowest since taking office in 2012," Thomson Reuters, June 15, 2015.
15 憲法審、当面開かぬ＝自民・船田氏 June 19, 2015; 論戦安保法制 自民党国対、憲法審査会の“凍結”要請 2015.6.16 19:09
16 Martin and Wakefield, here.
17 An English text of the Japanese Constitution is available here: add URL. And give J text URL too.
18 Prime Minister Kakuei Tanaka’s statement to the Diet on Sept. 23, 1973, English text from Hasebe Yasuo, "A memorandum for the Foreign Correspondents Club," distributed on June 15, 2015.
19 TREATY OF MUTUAL COOPERATION AND SECURITY BETWEEN JAPAN AND THE UNITED STATES OF AMERICA, Article 5, available here.
毎日新聞 2015年06月10日 23時05分（最終更新 06月11日 11時18分）
21 According to a 2014 US Congressional Research Service Report, positions advocated by Nippon Kaigi Kyokai include "Japan should be applauded for liberating much of East Asia from Western colonial powers, that the 1946-1948 Tokyo War Crimes tribunals were illegitimate, and that the killings by Imperial Japanese troops during the 1937 'Nanjing massacre' were exaggerated or fabricated." CRS, "Japan-U.S. Relations: Issues for Congress," Feb. 20, 2014, available here. Quoted in Norihiro Kato, "Tea Party Politics in Japan -- Japan's Rising Nationalism," The New York Times, Sept. 12, 2014. According to the Economist, Nippon Kaigi members "applaud Japan's wartime 'liberation' of East Asia from Western colonialism; rebuild the armed forces; inculcate patriotism among students brainwashed by left-wing teachers; and revere the emperor as he was worshipped in the good old days before the war," "Right side up," The Economist, June 6, 2015, and here.
22 See here.
23 Summary of Opinion (kenkai) of Japan Government, June 9, 2015, Asahi Shimbun, June 10, 2015, p.7.
24 Constitution, Article 98.
25 Procedures for revision are set forth in Constitution Article 96.
26 Asahi Shimbun, June 11, 2015, p.2.
27 See, e.g., "Supreme Court chief justice tipped off U.S. diplomats in 1959," The Asahi Shimbun, April 09, 2013. For additional analysis, see Craig Martin, "U.S. Interference in Japanese Constitutional Case,"
After these disclosures, several of the Sunakawa defendants filed a request for retrial on the ground that U.S. interference had denied them the right to a fair trial. See "Chance for court to right a wrong," Japan Times, June 23, 2014
28 Thus, the Court waived authority to pass on the constitutionality of this particular Treaty but warned that it would exercise such authority in cases it considered "obviously unconstitutional and void." All quotations are from Theodore McNelly (ed.) Sources in Modern East Asian History and Politics (Meredith Corp., 1967), pp. 198-99.
29 Sakata v. Japan, 13 Keishu 3225, Supreme Court Judgment of Dec. 16, 1959, McNelly, ibid., p. 196.
30 On June 13, surviving lawyers who defended the Sunakawa defendants six decades ago held a press conference of their own in which they repeated the message that the Sunakawa court did not address collective self-defense. 砂川事件弁護団 再び声明 合憲主張「国民惑わす強弁」June 13, 2015.
31 Richard Armitage, Remarks at Tokyo Press Roundtable, June 9, 2003. Cited in Michael Penn, Japan and the War on Terror – Military Force and Political Pressure in the U.S.-Japan Alliance, (I.B. Tauris, 2014). Penn's book is a masterful account of the pressure applied by American "alliance managers" demanding that Japan join the war in Iraq, the servile attitude of Japanese officials and the eagerness of Prime Minister Koizumi Junichiro and other nationalist politicians to join the war.
32 In the June 15 press conference at the Foreign Correspondents Club, Professor Kobayashi notified the audience that lawyers were preparing suits to be filed on the day the national security legislation is passed. Due to stringent standing requirements created by Japan's Supreme Court, nearly any such suit will be dismissed. See Martin
33 Quoted in Penn, at p. 270.
34 See Penn, pp. 269-74 for a discussion of the Nagoya High Court decision.
35 Gavan McCormack, Client State – Japan in the American Embrace (Verso 2007).
36 Ibid., p. 191.
This article appeared
Tokyo, London Want Plan to Gang Up Against Beijing?
August 8, 2015
During negotiations in Tokyo on Saturday, foreign ministers of Japan and Great Britain agreed to strengthen their cooperation and withstand China's activities in the disputed waters of the South China Sea.
Both countries agreed to strengthen cooperation on the maintenance of the "rule of law" in Asia with regard to China's "alarming" activities in the region, Yonhap News Agency reported on Saturday.
China’s activities in the disputed waters of the South China raise concerns in Western countries and Japan. Therefore, Japan intends to work closely with the UK to eliminate challenges the international community is facing, Japanese Foreign Minister Fumio Kishida said at a joint press conference with his British counterpart.
An aerial file photo taken though a glass window of a Philippine military plane shows the alleged on-going land reclamation by China on mischief reef in the Spratly Islands in the South China Sea, west of Palawan, Philippines, May 11, 2015
In the upcoming meeting of foreign ministers and defense ministers of the two countries which will be held in the "two plus two" format, Kishida and UK Secretary of State for Foreign Affairs Philip Hammond are planning to discuss ways to promote joint research in the field of missile technology and military equipment.
Despite the fact that Japan does not have any territorial claims in the South China Sea, the country is concerned about the construction of seven Chinese artificial islands in the territorial waters of the Spratly archipelago. These islands will help China strengthen its military presence in the sea, which, according to Kishida, may pose significant danger to the majority of the Japanese merchant ships.
In the economic sphere, both ministers also reaffirmed the willingness of Japan and the EU to step up negotiations towards a free trade agreement by the end of 2015.
This article appeared
at Zero Hedge
Be Afraid: Japan Is About To Do Something That's Never Been Done Before
Submitted by Tyler Durden on 08/08/2015 13:15 -0400
When the words "mothballed", "nuclear", and "never been done before" are seen together with Japan in a sentence, the world should be paying attention...
As TEPCO officials face criminal charges over the lack of preparedness with regard Fukushima, and The IAEA Report assigns considerable blame to the Japanese culture of "over-confidence & complacency," Bloomberg reports,
Japan is about to do something that's never been done before: Restart a fleet of mothballed nuclear reactors.In case you are not worried enough yet...
The first reactor to meet new safety standards could come online as early as next week. Japan is reviving its nuclear industry four years after all its plants were shut for safety checks following the earthquake and tsunami that wrecked the Fukushima Dai-Ichi station north of Tokyo, causing radiation leaks that forced the evacuation of 160,000 people.
Mothballed reactors have been turned back on in other parts of the world, though not on this scale -- 25 of Japan's 43 reactors have applied for restart permits. One lesson learned elsewhere is that the process rarely goes smoothly. Of 14 reactors that resumed operations after four years offline, all had emergency shutdowns and technical failures, according to data from the World Nuclear Association, an industry group.
"If reactors have been offline for a long time, there can be issues with long-dormant equipment and with 'rusty' operators," Allison Macfarlane, a former chairman of the U.S. Nuclear Regulatory Commission, said by e-mail.
As problems can arise with long-dormant reactors, the NRA "should be testing all the equipment as well as the operator beforehand in preparation," Macfarlane of the U.S. said by e-mail. Although the NRA "is a new agency, many of the staff there have long experience in nuclear issues," she said.It's not the first time a nation has tried this..
Kyushu Electric has performed regular checks since the reactor was shut to ensure it restarts and operates safely, said a company spokesman, who asked not to be identified because of company policy.
"If a car isn't used for a while, and you suddenly use it, then there is usually a problem. There is definitely this type of worry with Sendai," said Ken Nakajima, a professor at Kyoto University Research Reactor Institute. "Kyushu Electric is probably thinking about this as well and preparing for it."
In Sweden, E.ON Sverige AB closed the No. 1 unit at its Oskarshamn plant in 1992 and restarted it in 1996.* * *
It had six emergency shutdowns in the following year and a refueling that should have taken 38 days lasted more than four months after cracks were found in equipment.
Good luck Japan
This information appeared
at Spitfire List
FTR #689 Interview with Sterling and Peggy Seagrave
Posted by Dave Emory ⋅ October 13, 2009
Tags Bush Family, CIA, Cover-Up, Disinformation, Drug Trafficking, Dulles, Economic Bailout, FDR, Ford-Gerald, GOP, Harry Truman, Japan, MacArthur, Money Laundering, Nixon, Offshore, Operation Golden Lily, Pearl Harbor, Reagan, Sullivan and Cromwell, The M-Fund, UBS, Wall Street
MP3 Side 1 | Side 2
Introduction: Highlighting their consummately important book Gold Warriors; the program proudly presents Sterling and Peggy Seagrave.
Pursuing the subject of the fabulous amount of wealth stolen by the Japanese during World War II under Golden Lily (the formal name of the Japanese looting program), this broadcast supplements discussion presented in FTR#'s 428, 446, 451, 501, 509. Having secreted over $100-billion (in 1940's dollars) worth of precious metals and gems in the Philippines alone, the Japanese postwar economic largess was founded largely on the plunder garnered from their rape of Asia.
The program and the interview begin with the story of one of the more important postwar US intelligence operatives–former OSS and CIA agent Severino Diaz Garcia Santa Romana-nicknamed "Santy." The discoverer of much of the gold hidden in the Philippines by Prince Chichibu and General Yamashita under "Golden Lily", Santa Romana worked with General Edward Lansdale to secret the gold into foreign bank accounts. There, it was subsequently utilized for a number of purposes, in particular the financing of postwar US intelligence operations. As the Seagraves explain, a pivotal event in the recovery of the Philippines Golden Lily caches was the torture of General Yamashita’s driver, who eventually yielded the whereabouts of the repositories.
Among other uses, the recovered gold was used to finance covert operations and purchase political allegiance during the Cold War. In addition to being used to resurrect the very militarists, fascists and oligarchs that had prosecuted Japan's war of aggression, the monies were combined with treasure recovered from the Nazis to create an enormous slush fund called the Black Eagle trust. This huge repository of clandestine wealth was used to stabilize the postwar financial system, finance covert operations, and purchase influence among America's Cold War allies. Conceived of, and realized, by some of the most powerful American political and financial power brokers, the Black Eagle trust ultimately became a source of enormous corruption, as it became a "Treasure of the Sierra Madre", luring many individuals and institutions into temptation and, sometimes, death.
A frightening reminder of the insecurity surrounding the centers of great wealth can be found in the chilling stories of Norbert Schlei, W.R. "Cotton" Jones', Santy's heirs and Australian broker Peter Johnston who attempted to lawfully negotiate or verify financial instruments influenced by Golden Lily wealth. Terror and death can be the rewards for rectitude. Many of the institutions bailed out by the U.S. Taxpayer in the wake of the financial meltdown in 2008 have vast amounts of stolen gold hidden away from the prying eyes of regulators.
Program Highlights Include: The establishment and operation of the M-Fund—designed to establish and perpetuate the Japanese reactionaries who had engineered Japan's war of aggression; the Yotsuya Fund—designed to finance the coercion, intimidation and murder of the political opposition in Japan; the Keenan Fund—set up to bribe witnesses in order to whitewash Japanese war criminals; Kodama Yoshio—Japanese admiral, gangster and the CIA's main man in postwar Japan; the Showa Trust—set up to enrich Emperor Hirohito; the Marcos regime in the Philippines and its attempts at manipulating both the Japanese and American beneficiaries of the Golden Lily; the Reagan administration's attempts at using Golden Lily loot in the Philippines in order to ease the US back on to the Gold Standard; the careers of Black Eagle trust architects Henry Stimson, John J. McCloy, Robert Lovett and Robert B. Anderson; review of the career and fascist ideology of General Charles Willoughby, MacArthur's intelligence chief; Richard Nixon's decision to turn one of the aggregates of Golden Lily over to Japanese war criminal (and later Prime Minister) Kishi Nobosuke. Nixon agreed to turn the M-Fund over to Kishi in exchange for kickbacks to Nixon's 1960 presidential bid.
1. The program and the interview begin with the story of the more important postwar US intelligence operatives–former OSS and CIA agent Severino Diaz Garcia Santa Romana-nicknamed "Santy." The discoverer of much of the gold hidden in the Philippines by Prince Chichibu and General Yamashita under "Golden Lily", Santa Romana worked with General Edward Lansdale to secret the gold into foreign bank accounts. There, it was subsequently utilized for a number of purposes, in particular the financing of postwar US intelligence operations. As the Seagraves explain, a pivotal event in the recovery of the Philippines Golden Lily caches was the torture of General Yamashita's driver, who eventually yielded the whereabouts of the repositories.
Among other uses, the recovered gold was used to finance covert operations and puchase political allegiance during the Cold War. Among the most important of the vehicles that emerged from the looted wealth was the Black Eagle Trust.
Among the principal coordinating elements assisting Santa Romana and his U.S. associates was the Vatican and the Opus Dei network, in particular.
In addition to its tactical application to covert operations and political influence pending, the Black Eagle Trust established the gilded loot of the Second World War at the foundation of the postwar economic and political order!
2. In this context, the program highlights the use of this wealth to finance covert operations and buy political influence during the Cold War.
"The treasure—gold, platinum, and barrels of loose gems—was combined with Axis loot recovered in Europe to create a worldwide covert political action fund to fight communism. This 'black gold' gave the Truman Administration access to virtually limitless unvouchered funds for covert operations. It also provided an asset base that was used by Washington to reinforce the treasuries of its allies, to bribe political leaders, and to manipulate elections in foreign countries. In the late 1940's, this agenda was seen as entirely justified, because the Soviet Union was aggressively supporting communist and socialist movements all over the world, putting the survival of the capitalist world in peril."(Gold Warriors—America's Secret Recovery of Yamashita's Gold; by Sterling Seagrave and Peggy Seagrave; p. 3.)
3 "Most readers will be as surprised as we were by this information. Some may be deeply troubled by Truman’s strategic decision, which others may heartily endorse. It is not within the scope of this book to examine that decision, or to explore whether it was right or wrong. It might have been a wise decision at the time, which had tragic consequences in the longer term. Ours is only a preliminary report, and in what follows we try to remain politically neutral. The only purpose of this book is to lift the veil of secrecy, and to bring forward and examine the unforeseen consequences, which are many, and troubling."
4. The decision to form this vast action fund of Axis treasure looted during World War II (called the Black Eagle trust) had its genesis with the Bretton Woods conference of 1944 and involved some of the key power brokers in the American power elite.
"It was not Truman’s decision alone. The idea for a global political action fund based on war loot actually originated during the Roosevelt administration, with Secretary of War Henry L. Stimson. During the war, Stimson had a braintrust thinking hard about Axis plunder and how it should be handled when peace came. As the tide turned against the Axis, it was only a matter of time before treasure began to be recovered. Much of this war prize was in the form of gold looted by the Nazis from conquered countries and civilian victims. To eliminate any trace of original ownership, the Nazis had melted it down, and recast it as ingots hallmarked with the swastika and black eagle of the Reichsbank. There were other reasons why the gold was difficult to trace. Many of the original owners had died, and pre-war governments had ceased to exist. Eastern Europe was falling under the control of the Soviet Union, so returning gold looted there was out of the question."(Ibid.; p. 4.)
5. These luminaries included Secretary of War Henry Stimson and his aides John J. McCloy, Robert Lovett and Robert B. Anderson, about whom more will be said later on in the program. The reference to "Santy" is to Mr. Santa Romana.
"Stimson’s special assistants on this topic were his deputies John J. McCloy and Robert Lovett, and consultant Robert B. Anderson, all clever men with outstanding careers in public service and banking. McCloy later became head of the World Bank, Lovett secretary of Defense, Anderson secretary of the Treasury. Their solution was to set up what is informally called the Black Eagle trust. The idea was first discussed with America's allies in secret during July 1944, when forty-four nations met at Bretton Woods, New Hampshire, to plan the postwar world economy. (This was confirmed, in documents we obtained, by a number of high-level sources, including a CIA officer based in Manila, and former CIA Deputy Director Ray Cline, who knew of Santy's recoveries in 1945. As recently as the 1990’s, Cline continued to be involved in attempts to control Japanese war-gold still in the vaults of Citibank.)"(Idem.)
6. Next, the program highlights the machinations of Edward Lansdale, one of the most important US "Black Ops" veterans of the Cold War. Lansdale was at the epicenter of the recovery of the Philippines treasure sites created by the Japanese and opened by Santa Romana. Lansdale briefed the high-ranking government officials (including General Douglas MacArthur) who participated in the cooption of the Philippines treasure sites.
"After briefing President Truman and others in Washington, including McCloy, Lovett, and Stimson, Captain Lansdale returned to Tokyo in November 1945 with Robert B. Anderson. General MacArthur then accompanied Anderson and Lansdale on a covert flight to Manila, where they set out for a tour of the vaults Santy already had opened. In them, we were told, Anderson and MacArthur strolled down 'row after row of gold bars stacked two meters tall'. From what they saw, it was evident that over a period of years Japan had looted many billions of dollars in treasure from all over Asia. What was seen by Anderson and MacArthur was only the gold that had not reached Japan. Far from being bankrupted by the war, Japan had been greatly enriched."(Idem.)
7. Ultimately, the very clandestine nature of the "Black Gold" (including the Black Eagle trust and other off-the-books funds to be discussed later) led to the perversion of the use of these monies (which may have been justified during the early Cold War and the Soviet expansionist period). These clandestine monies became the source of immense and ongoing corruption.
"Because the Black Eagle trust and the political action funds it spawned remained off the books, some of these slush funds fell into the wrong hands, where they remain to this day, bigger than ever. According to reliable sources in Washington and Tokyo, in 1960 Vice President Nixon gave one of the biggest of these funds, the M-Fund, to the leaders of Japan’s Liberal Democratic Party in return for their promise of kickbacks to Nixon’s campaign for the American presidency. This in itself is deeply disturbing. But the M-Fund, then worth $35-billion and now said to be worth upwards of $500-billion, has been controlled ever since by LDP kingmakers who use it to buy elections, to keep Japan a one-party dictatorship, and to block any meaningful reforms. Similar abuses with other secret funds are to be found all over the world. Secrecy is power. Power corrupts. Secret power corrupts secretly."(Ibid.; p. 6.)
8. "As Japan expert Chalmers Johnson nicely put it, 'The Cold War is over. Whatever the United States may have believed was necessary to prosecute the Cold War, the Cold War itself can no longer be used to justify ignorance about its costs and unintended consequences. The issue today is not whether Japan might veer toward socialism or neutralism but why the government that evolved from its long period of dependence on the United States is so corrupt, inept and weak.'"
9a. Returning to the subject of the Santa Romana recoveries in the Philippines at the end of the war, the broadcast fleshes out the operation, involving Santa Romana, MacArthur, Lansdale and Robert B. Anderson.
"What we do know, from two separate high-level sources in the CIA, is that Robert B. Anderson flew back to Tokyo with Lansdale, for discussions with MacArthur. After some days of meetings, MacArthur and Anderson flew secretly to Manila, where they were taken by Lansdale and Santy to some of the sites in the mountains, and to six other sites around Aparri at the northern tip of Luzon. In the intervening weeks, Santy's men, aided by hand-picked teams from the U.S. Army Corps of Engineers, had successfully opened several of these vaults, where MacArthur and Anderson were able to stroll down row after row of gold bars. Other sites were opened in subsequent months. In all, the recoveries took two years to complete, from late 1945 to early 1947."(Ibid.; p. 96.)
9b. "From what was seen in these vaults, and also discovered by U.S. Army investigators in Japan, it became evident that over a period of decades Japan had looted billions of dollars' worth of gold, platinum, diamonds, and other treasure, from all over East and Southeast Asia. Much of this had reached Japan by sea, or overland from China through Korea, but a lot had been hidden in the Philippines."
10. As mentioned above, the Santa Romana recoveries and other Japanese loot was combined with Nazi gold recovered at the end of the war in Europe. These bullion treasuries were combined to form the Black Eagle trust. As discussed above, some of the premier member of the U.S. power elite oversaw the creation of Black Eagle.
"Washington's 'official' (public) figure for recovered Nazi gold still is only 550 metric tons. But Anderson knew better. One of his business associates saw photos in Anderson’s office of an American soldier 'sitting on top of stacks of bullion that Hitler had stolen from Poland, Austria, Belgium and France. It ended up with the Allied high command and no one was allowed to talk about it.' The same source said he was taken to the courtyard of a convent in Europe where 11,200 metric tons of Nazi looted bullion had been collected."(Idem.)
11. "After the Nazi defeat, the OSS and other Allied intelligence organizations searched Germany and Austria for art treasures and looted gold. Soviet troops and special units did the same in the Russian zone. More is known of what happened to the recovered art than to the recovered gold. When one hundred tons of Nazi gold were recovered from a salt mine near Merkers, Germany, the truck convoy carrying it to Frankfurt vanished; it was said to have been hijacked, but the more likely explanation is that this gold was among the bullion stacked in the convent courtyard."
12. "The reason for all this discretion was a top secret project sometimes called Black Eagle, a strategy first suggested to President Roosevelt by Secretary of War Henry L. Stimson and his wartime advisors, John J. McCloy (later head of the World Bank), Robert Lovett (later secretary of Defense), and Robert B. Anderson (later secretary of the Treasury). Stimson proposed using all recovered Axis war loot (Nazi, Fascist, and Japanese) to finance a global political action fund. Because it would be difficult if not impossible to determine who were the rightful owners of all the looted gold, better to keep its recovery quiet and set up a trust to help friendly governments stay in power after the war. This was informally called the Black Eagle trust after the German black eagle, referring to Nazi bullion marked with an eagle and swastika, recovered from underground vaults of the Reichsbank."
(Ibid.; pp. 96–97.)
13. Apparently, some of the premier families in international finance collaborated with the formation and operation of the Black Eagle trust, as well.
"According to some sources, the Black Eagle trust could only have been set up with the cooperation of the most powerful banking families in America and Europe, including the Rockefellers, Harrimans, Rothschilds, Oppenheimers, Warburgs, and others."(Ibid.; p. 97.)
14. Fleshing out information about the architects of the Black Eagle trust, the program sets forth the background of Henry Stimson, and his aides John J. McCloy, Robert Lovett and Robert B. Anderson. The latter three wielded paramount influence in the postwar world of international power politics and business.
"A brilliant Wall Street attorney, Stimson was a man of immense experience who had served in various posts for five presidents—Taft, Coolidge, Hoover, Roosevelt, Truman—but he was nearing the end of his extraordinary career. He knew Manila intimately, having served as governor-general of the Philippines in the 1920's. President Herbert Hoover had then named him secretary of State. (Like Hoover, Stimson thought highly of MacArthur.) By Pearl Harbor, Stimson was already in his seventies. He managed his vast wartime responsibilities by delegating authority to four assistant secretaries of War: Robert Patterson, a lawyer and former federal judge; Harvey Bundy, Boston lawyer and Yale graduate; and two dynamos Stimson called his Heavenly Twins—John McCloy and Robert Lovett. What they all had in common was their close relationship to the Harrimans and Rockefellers. Lovett's father had been the right-hand man of railway magnate E.H. Harriman, who once tried to buy the South Manchurian Railway from the Japanese. Following in his father's footsteps, Robert Lovett worked with Averell Harriman at the Wall Street firm of Brown Brothers Harriman, handling international currency and lending operations. John J. McCloy, by contrast, was a poor boy from Philadelphia who graduated from Harvard Law School, joined the Cravath firm on Wall Street, and gained the admiration of Averell Harriman by helping get $77-million worth of bond issues for the Union Pacific Railroad. (McCloy engineered such deals for everyone from the House of Morgan on down.) Working for Secretary of War Stimson, Lovett and McCloy became midwives at the birth of America's postwar national security establishment, which was closely interwoven with the financial community."To read this important work go to Spitfire to read this complete story.
"Oligarchy is the cancer of human history." - Webster Tarpley
The Social Economic Enslavement Of Japan