JPRI Working Paper No. 99 (March 2004)
Politics, Security Policy, and Japan’s Cabinet Legislation Bureau: Who Elected These Guys, Anyway?*
by Richard J. Samuels

Japanese leaders alternately have closed and opened the nation to the rest of the world four times since 1600. Each time they did so, they overcompensated for the excessively concentrated prerogatives—and pathologies—of the previous regime. As a result, for nearly half a millennium, the balance between civilian and military power in Japan has swung widely. In the first closing, the Tokugawa shogunate, overcompensating for centuries of civil war, imposed martial law and shut out the rest of the world. Two and a half centuries later, after a peaceful, but underdeveloped “Pax Tokugawa,” Meiji revolutionaries opened Japan to the significantly more advanced West and rushed headlong toward industrial development. But they overcompensated for Japan’s backwardness by privileging the military and justifying its political prerogatives as a matter of national security. The new military, intoxicated with its own prestige (gun no ishin), became convinced that only it stood between Japan’s imperial destiny and capitalist decadence. The imperial military snuffed out democracy stillborn and enjoyed a political autonomy that “(ran) like a fatal thread”[1] through the history of the 1920s-1930s.

In 1945 Japan was reopened by a foreign occupying army after the defeat of the Pacific War. The failed imperial military gave way to a highly circumscribed one that has had to struggle for legitimacy. Despite the trappings of a democratic constitution, Japan’s second “opening” never fully institutionalized democratic oversight of the military. Instead, more than half a century after the debacle, Japan continues to wring its hands about a possible “relapse” into military insubordination and seems to overcompensate by giving bureaucrats considerable autonomy vis-à-vis the military and politicians. As a result, the ideal of democratic control over Japan’s now very considerable military power continues to be elusive.

Japan is one of a small number of states with constitutions that formally renounce the use of force as a means of settling international disputes. The first was revolutionary France in 1791, but that did not last. After the war-renouncing Kellogg-Briand Pact of 1928, France, Brazil, Italy, and Germany all wrote constitutions that renounced war as an instrument of the state. Japan, however, was different. First, unlike these other states, Japan did not write its own postwar constitution. Second, the one “imposed” upon it by the United States goes beyond outlawing wars of aggression to formally repudiating the maintenance of military forces for that purpose. Indeed, as I shall explore below, it took a major political battle to render even “self defense” constitutional in postwar Japan. Thus, it seems particularly important to understand how fully—and to what political effect—the postwar Japanese military has been subject to constitutional control.

This paper focuses in particular on one institution: the Japanese Cabinet Legislation Bureau (CLB) (Naikaku Hôsei Kyoku). It examines the extent to which a military can remain subordinated to bureaucratic masters without nominally more powerful politicians or jurists openly asserting control. Even though there is remarkably little scholarship—in either English or Japanese—on its political role, the CLB is no minor institution. Its fingerprints are found everywhere in Japanese governance, not least of all regarding defense policy. Its officials—all career bureaucrats—have had a disproportionate, if not always decisive, voice in interpreting Article IX of the Japanese Constitution, the so-called “peace clause” that repudiates the use of force as a means of settling international disputes. In the 1950s the CLB ruled on the constitutionality of the Self-Defense Forces (SDF), determined that the SDF can possess nuclear weapons, and established that it can preempt an imminent foreign threat. For more than four decades the CLB has been deeply involved in the interpretation of collective security, whether visits by Cabinet ministers to the Yasukuni shrine (where fallen soldiers—and war criminals—are enshrined) violate the constitutional separation of church and state, whether Japanese troops could be sent abroad, and where “rear areas” are located, inter alia. There is, in fact, no major defense issue on which the CLB has not ruled.

Analysts refer to the CLB as the Prime Minister’s “in-house lawyer,” and as a “check” on Diet legislation. But is it possible, as some have claimed, that this “lawyer” has usurped the political responsibilities of the Cabinet and the constitutional responsibilities of both the national Diet and the Supreme Court? Is it true that if the CLB says “no” a draft bill will not become law? Satô Tatsuo, a former CLB Director General, acknowledges that the views of the CLB are not legally binding but that they are accepted as authoritative and politicians cannot easily overturn them.[2] Has its legislative “check point” actually been a “veto?” Put differently, is the Diet really Japan’s “sole law-making body” and the “highest organ of state power” per Article XLI of the Constitution, or has Japanese governance once again overcompensated and replaced an unfortunate history of military insubordination with bureaucratic rather than democratic control? In short, is Nishihara Masashi, the President of Japan’s National Defense Academy, correct that “postwar political leaders, both in and out of power, strongly concerned about the lack of civilian control over prewar and wartime military decisions, have made extra efforts to bind defense and security issues through rigorous legalistic approaches.”[3]

The Cabinet Legislation Bureau in the Government

No administrative agency of the Japanese state enjoys higher prestige or greater independence than the CLB. Although the CLB is formally an advisory organ within the Prime Minister’s secretariat and its Director General does not vote in Cabinet meetings, he is always included on the list (and in the group photograph) when a new Cabinet is formed. Indeed, the CLB Director General is the highest paid bureaucrat in the Japanese government. The CLB operates behind a shroud of secrecy—in what has been labeled a “sanctuary.”[4] This sanctuary status has been enabled by the fact that ever since the end of the Pacific War, unlike all other Cabinet appointments, the CLB Director General has been a career official rather than a sitting Diet member. Not being a political appointment, the Director General’s portfolio has been transferred far less frequently than others.[5] The CLB maintains no press club and the Director General does not give press conferences. As we shall see, the CLB is often the object of controversy, but rarely the object of careful study.[6]

Although the term “Legislation Bureau” (Hôsei Kyoku) was first used in 1875, the path toward today’s Cabinet Legislation Bureau has wound around and through multiple administrative reorganizations. What is recognized as the forerunner of today’s CLB was formally established in 1885, when the Cabinet system was first created. Modeled on the French Conseil d’Etat, this unit (then known as the Legislation Bureau—LB) was the key advisory organ to the government, where all legislation was formally vetted and which also housed the highest administrative court. In 1890, under the Meiji Constitution, the LB was assigned a direct link to the Imperial institution, and throughout the prewar and wartime periods, the Director General of the LB was, with the Chief Cabinet Secretary, one of the two top officials in the Cabinet hierarchy. The LB was responsible for approving every act of every ministry, including review of all regulations, personnel matters, organizational changes, staffing of the courts, as well as examining everything done by the Emperor’s Privy Council. One former Director General called this latter responsibility “as terrifying as any dream, even now.”[7] Indeed, the (possibly apocryphal) story is told of CLB’s rejection of a reorganization plan by the Ministry of the Army during the war. When irate Army officials reminded the CLB Director General that the plan already had been approved by the Emperor, the CLB Director General remained unmoved, responding: “Tell the Minister of the Army that whoever advised the Emperor as badly as this should commit hara-kiri.”

It was the considerable authority of the wartime Legislation Bureau that rendered it the number two target for “democratization” by the Supreme Commander of the Allied Powers (SCAP)—just after the extraordinarily powerful Home Ministry. As early as September 1945, just one month after the end of the war, the LB had prepared a list of issues for a new democratic constitution; and by February 1946, the LB’s Satô Tatsuo began drafting a new constitution, which SCAP official Colonel Charles Kades flatly rejected.[8] In September 1947 SCAP abolished the LB, and five months later it purged eleven top LB officials. But, in what has been described as an “ex-cathedra declaration” (tsuru no ichi koe), Prime Minister Yoshida Shigeru reestablished the LB immediately after Japanese sovereignty was restored in 1952.[9] Now, however, since there was no Privy Council to be “subordinate” to and since there was a Legislation Bureau in each house of Diet, the restored LB was less than it once had been.[10] Still, like the Budget Bureau of the Ministry of Finance, it became one of those rare units within the administrative state with formal supervisory responsibilities over other ministries and agencies. It is, as Nishikawa has described it, “a government agency within a government agency.”[11]

Perhaps its most distinguishing characteristic is that there is no such thing as a career (puropaa) CLB official. Unlike every other administrative unit in the Japanese government, the CLB has no entrance exam and no “incoming class” of college graduates. Instead, each of its more than two dozen senior officials arrives on the job as a tested legal specialist with some fifteen to twenty years of experience in the line ministry or agency from which he is seconded. All ministries are eager to be represented within the CLB, as they expect their former colleagues to better appreciate—and protect—their bureaucratic interests. But some of these sending ministries are better represented than others, while some are not represented at all. Only the Ministry of Finance and the Ministry of Justice have each been guaranteed three slots in the CLB. Others—the Foreign Ministry, Health and Welfare, Agriculture, Trade and Industry, and Local Affairs—have routinely received two each. The CLB Director General—nine times in the postwar a graduate of the Law Faculty of Tokyo University and three times a graduate of its counterpart at Kyoto University—has always come from the Ministries of Finance, Justice, International Trade and Industry, or Local Affairs.

Significantly, no official from the Japan Defense Agency (JDA) has ever been assigned to the CLB. Since the term of secondment is a minimum of five years, few of these elite officials return to their original ministry. They often serve two or more terms, and then cycle out into lucrative and/or powerful second careers. In this way, the CLB acts as a sort of amakudari (“descent from heaven”) way station for elite bureaucrats. Several retired Directors General have become presidents of public corporations. Others have chaired large non-profit organizations, and—to underscore the status of the CLB—three others have been named to the Supreme Court bench.

The CLB has two formal tasks: 1) to provide opinions to the Prime Minister and the Cabinet on legal issues; and 2) to examine drafts of all bills, regulations, Cabinet orders, and treaties for consistency with the constitution and legal precedents. Although the CLB is limited formally by its enabling legislation (Naisei Kyoku Setchi Hô) to the provision of legal advice, it derives enormous power from its formal monopoly on the use of the government’s “formal seal of approval” (osumitsuki). By exhaustively and authoritatively reviewing all proposed policies and by issuing “unified government interpretations” (tôitsu kenkai), the CLB effectively “collateralizes” the authority of bureaucrats, lawmakers, and jurists alike (keni o urazukeru mono). Thus, the CLB’s approval is solicited by officials on all matters—from regulations to legislation to speeches.

Production of a “unified government interpretation” and approvals often require extensive interagency coordination. Government officials confess that they are many times more anxious visiting the CLB to present and defend draft legislation than they are visiting the Ministry of Finance to present and defend budget requests. But it is also worth noting that having a CLB interpretation to “collateralize” an agency’s position comes in handy when officials are confronted with demands for policy change: it enables them to dismiss policy ideas as “unacceptable to the CLB.”

Separation of Powers, or Not

This collateralizing deference to the CLB’s “unified government interpretation” is also an important part of Diet and judicial deliberations. In the case of the former, the CLB Director General supports cabinet ministers in Diet debates. Until 1999, it was to him, rather than to his own ministry official, that a Cabinet Minister deflected difficult questions of law, and it is still true today, despite the June 1999 legislation discussed below. One former CLB Director General, Hayashi Shûzô, reports that participation in Diet interpellations was the most tricky part of his job because his main concern was to make sure that no minister ever challenged or contradicted extant interpretations crafted by his predecessors.[12] Some suggest that this is due to the powerful constraints of social norms—whereby no “junior” (kôhai) can contradict or correct his “senior” (sempai). Alternatively this is presented as the result of a legal system based on natural law that has no effective mechanism for change. Either way, CLB officials place a premium on consistency with past interpretations. In the absence of prodding from the Prime Minister (and sometimes despite such prodding), they do not stake out new positions that, in their view, might dilute the CLB’s institutional integrity. Omori Masasuke, a former CLB Director General, has defended CLB conservatism: “The government’s interpretation of the Constitution is the result of logical and thorough investigation. It is therefore basically impossible to change a unified interpretation just because circumstances changed . . .”[13] Since prior interpretations are enshrined as—and legitimated by—precedent, they effectively are Japanese law and thus become a powerful brake on major policy change.

But do these brakes always hold? As we shall see, the political brakes began to slip after the first Gulf War. For example, Omori was fired in mid-1999, after Ozawa Ichirô joined the Obuchi government. The legal brakes have held more firmly. Although postwar courts have always held the nominal power to overturn laws and regulations and although Article LXXXI of the Constitution stipulates that “the Supreme Court is the court of last resort with power to determine the constitutionality of any law, order, regulation or official act,” Japanese courts rarely question a CLB judgment. Japanese courts are assigned responsibility for ex-post constitutional judgments, but a century of practice and its enabling legislation gives the CLB authority to make such judgments binding ex ante.[14] Consequently, in practice, the CLB has been a far more influential arbiter of the law than the Supreme Court. Between 1947 and 2001, only five acts of government have been declared unconstitutional, and of these four were not first reviewed by the CLB because they had been submitted as individual Diet members’ bills (giin rippô), rather than by ministries as government bills.

The Supreme Court has often declined to rule on legislation and other government action it deems “highly political . . . (and thus) beyond the authority of the judiciary to investigate.” One former Director General defended the idea that the CLB should stand before—and perhaps even above—the courts: “We often have heard such criticisms as: ‘Wouldn’t it be desirable to leave constitutional issues to the Supreme Court?’ . . . But we have to make certain there is no violation of the Constitution each time the Cabinet implements policy or exercises authority . . . If everything were left for the Supreme Court to adjudicate after the fact, there would be a great deal of confusion. It is absolutely necessary to eliminate as many problems as possible in advance.”[15] Another put it even more bluntly: “Should we prevent chaos beforehand or should we settle problems in courts after the chaos arises? The former is lower in social costs.”[16]

Of course, no portion of the Constitution has been more hotly contested than Article IX and no issue has been more “political” than the constitutionality of the Self-Defense Forces. Thus, although lower courts have grappled with repeated legal challenges to the SDF (and to the National Police Reserve that preceded it in 1952)—and although they have on rare occasions supported the plaintiffs—the Supreme Court has always avoided issuing any direct ruling on the matter. Rather than ruling on politically charged cases, the Supreme Court has turned them back to the Cabinet for “the political review of the sovereign people.” In so doing, the Supreme Court has sided consistently with the government which, in response to a challenge to the constitutionality of Article IX in 1973, insisted that “whether or not the SDF corresponds to the so-called ‘war potential’ prohibited by Article IX of the Constitution is not a matter to be examined by the judicial branch . . . (The judiciary) does not bear political responsibility to the people . . . (and) these are not matters into which the Court should inquire.”[17]

Because of this remarkable jurisprudential void, where independent lower court judges have been threatened by officials with reprisals for ruling against the state, the CLB has emerged as a quasi-constitutional court with a de facto monopoly on interpreting the constitution. The scope of judicial authority in constitutional matters has been narrowed nearly out of existence. Effectively final constitutional judgments are not made by courts in response to suits by plaintiffs, but by bureaucrats in the normal course of governance. This is no small problem for legislators. Kan Naoto, leader of Japan’s largest opposition party, has stated unequivocally that “the fact that the CLB serves as the highest interpretive authority on the Constitution is itself a violation of the Constitution.”[18] But if neither the Diet nor the courts act as a brake on the CLB when it comes to security policy, then the only branch of government left is the executive—home to both the elected government and its nominal servants in the CLB. It is here where real balance of civil-military power has been struck.

The CLB and the Politicians: The Postwar Baseline

Debate about the appropriate exercise of CLB power has brewed for decades. Although the CLB fancies itself “the most secluded office” (oku no in) in government, and although it insists that it interprets the constitution with dutiful consistency regardless of Cabinet changes, several of its former Directors General have acknowledged the role of politics in their deliberations. Given that Japanese law is drafted by bureaucrats and thoroughly vetted by the CLB long before it arrives in the Diet, room for compromise on the “back end” of the legislative process is limited. The question is how best to understand the interactions between politicians and CLB bureaucrats on the front end.

Ironically, CLB bureaucrats seemed less powerful vis-à-vis politicians during the prewar and wartime periods because the Director General of the Legislation Bureau was himself often a sitting member of the Diet. Their influence also was limited by reliance on distinguished legal scholars from outside the formal government apparatus.

The idea of fashioning the CLB into an independent and neutral bureaucratic arbiter of legislative possibilities only came later. It first emerged during the Occupation, when CLB bureaucrats helped resist some of the SCAP’s more ambitious reforms, particularly the strengthening of the Prime Minister’s powers at the expense of the civil bureaucracy. In 1956, Prime Minister Kishi authorized the CLB to act as the secretariat for the first Commission on the Constitution, a process in which nearly one thousand people testified and more than five hundred meetings were held. Since then the CLB’s bureaucratic “foxes” have continued to guard the constitutional “henhouse” across a range of issues, including administrative reform, emergency powers legislation, and the use of force. Even after the government’s weak and uncoordinated response to the 1995 Kobe earthquake generated editorial and popular appeals for emergency powers legislation, the CLB stood firm to protect its prerogatives, its Director General proclaiming in Diet that “it is problematic to amend the law to enable the prime Minister to control and supervise the ministries and agencies—even during an emergency.”[19] It is a second irony that Kishi Nobusuke, the godfather of the anti-mainstream conservatives in the LDP, who are today the most outspoken critics of the CLB, may have contributed the most to empowering it.[20]

Being useful to politicians is, of course, not the same as controlling the policy process. While the CLB has developed a de facto monopoly on interpreting the Constitution and has an incentive to protect its institutional prerogatives, there is mounting evidence that it has been selectively ignored (or manipulated) by skilled politicians. Former Prime Minister Nakasone is credited with being the first to openly overrule the CLB’s advice. In 1983 Japan was under considerable pressure from the United States to provide access to its advanced research, including dual-use military technology. Nakasone was determined to bolster the alliance by exempting the United States from Japan’s ban on the export of weapons, and he negotiated a Memorandum of Understanding with the United States to allow its transfer. CLB Director General Kakuta Reijirô was adamantly opposed, but Nakasone was unmoved and found a way around the CLB’s intransigence. He allowed Kakuta to save face by ordering two reports and then selected the one consistent with his policy preferences. But his Chief Cabinet Secretary, Gotoda Masaru, was less gentle. When Kakuta warned him that the government would face vigorous opposition in Diet interpellations, Gotoda responded: “I will not have you acting on my behalf in Diet interpellations. I will handle that chore. This is a policy change and transcends the authority of the CLB. Policy review does not fall under your jurisdiction.”[21]

The case of the controversial Yasukuni Shrine is another example of politicians’ resistance to the CLB. Citing Article XX of the Constitution, which prohibits religious activity by the state, the CLB issued guidelines in 1978 prohibiting cabinet ministers from participating in Shinto rites. The guidelines were very clear: Ministers “may not bow or clap hands twice or bow once more. Nor may they make offerings using public funds.” But in 1985 the CLB was obliged to change these guidelines by Prime Minister Nakasone, who was determined to be the first postwar prime minister to visit Yasukuni in his official capacity. CLB Director General Mogushi Takashi pushed back, insisting that official worship would be unconstitutional. But Nakasone—with the support of future Prime Minister Koizumi Junichirô, then Minister of Health and Welfare—reprised his strategy from two years earlier. He organized a study group that included former CLB Director General Hayashi Shûzô as vice chair, thus neutralizing many in the CLB who could not oppose their former boss. The commission concluded that an official visit would not violate the constitution, and when the CLB Director General balked, Nakasone told him to deliver both views. Once again, he simply selected the one consistent with his preference.

Of course, not all Japanese prime ministers have been as powerful or as determined as Nakasone. When Socialist Murayama Tomiichi became Prime Minister in 1994 with LDP support, he needed to clarify his government’s positions across a range of issues. None was more difficult than defense, which had divided the oddly coupled coalition partners throughout the postwar period. Murayama listed what he claimed were at the core of the Socialist program over the years: civilian control of the military, “defensive” defense (senshu bôei), and bans on conscription, overseas deployment, arms exports, and weapons of mass destruction. He also included the three non-nuclear principles, and insisted that only the minimum use of force could be used to defend against invasion. This list perplexed many, especially left wing socialists in his own party, for Murayama had simply recited the government’s positions, rather than those associated historically with the Japan Socialist Party (JSP). But why? According to one analyst, CLB Director General Ôde Takao had drafted his statement, anticipating big problems if the Prime Minister were to stick to the JSP line that the Self-Defense Forces were illegal. According to Ôde himself, he was merely defending the prerogatives of the CLB: “Cabinets may change, but there is not much room for new interpretations of the Constitution . . . If the interpretation of the Constitution changed every time the Cabinet changed, the CLB would lose trust as an organization.”[22]

On the other hand, one of Ôde’s most influential predecessors, Takatsuji Masaki, acknowledges in his memoirs that when he wrote the most influential interpretation of Article IX, the CLB could not resist “strong pressure” (tsuyoku shuchô shita koto de aru) from Prime Minister Yoshida and concludes that “it is undeniable that the interpretation of Article IX developed alongside political shifts.”[23]

Even if the principals are unclear about the extent to which the CLB enjoys a free hand in policy-making and can bend politicians to its corporate will, there have been changes in national security policy and civil-military relations since 1945, and the CLB has always been right in the thick of things. The baseline for these changes was the CLB’s 1952 interpretation of “war potential” in Article IX and its 1954 determination that the Self-Defense Forces were constitutionally permitted. It was particularly difficult in 1954 for the CLB to lay out systematically the constitutional justification for a Japanese military because, until the Korean War, Prime Minister Yoshida had insisted that Japan did not even have the right of self-defense under the Constitution. Even afterwards, Yoshida’s government denied that the 75,000 man National Police Reserves (NPR) was a military force. The CLB had gone along with Yoshida and his influential Justice Minister, Kimura Tokutarô, by insisting that the NPR, equipped with tanks and heavy artillery and led by officers of the former Imperial army, lacked “the scale of equipment and preparation that could participate in a modern war.”[24] But as the Cold War progressed and U.S. demands on its Japanese partner intensified, Yoshida realized that Japan would need more than the NPR. It was becoming impossible to continue denying the obvious: Japan would reestablish a military. The challenge for the political leadership and the CLB was to justify this policy change, given what seemed the unambiguous renunciation of the use of force in Article IX and given prior denials at the highest level that a military could legally exist in postwar Japan. The politicians and the CLB were up to the task.


By 1954, when the Self Defense Forces Establishment Law was introduced in the Diet, Yoshida and the CLB had developed a new line, one that has formed the baseline for each subsequent security policy debate to the present day: Japan is a sovereign nation, and all sovereign nations have the right to self-defense. It is legal, moreover, for sovereign nations to provide an infrastructure for homeland security. Since the purpose of a Japanese Self-Defense Force is homeland security, it could not contradict the “war potential” explicitly banned by Article IX. This interpretation also specified the conditions under which Japan could exercise self-defense: Japan could respond with “minimum necessary force” (jiei no tame no hitsuyô no jitsuryoku) when invaded. But it could not send forces abroad (kaigai hahei), nor could Japan participate in any collective defense arrangements (shudanteki bôei).

The CLB’s interpretation—drafted at Yoshida’s request and under his careful supervision—enabled the creation of the SDF without having to amend the Constitution. Now the use of force banned in Paragraph Two of Article IX was related only to the purposes of Paragraph One, which did not proscribe self-defense. In its first formal interpretation of Article IX, the CLB declared that “[War potential (senryoku)] refers to a force with the equipment and organization capable of conducting modern warfare . . . Determining what constitutes war potential requires a concrete judgment taking into account the temporal and spatial environment of the country in question . . . It is neither unconstitutional to maintain capabilities that fall short of war potential nor to utilize these capabilities to defend the nation from direct invasion.”[25]

Justice Minister Kimura, exasperated with persistent questioning by the opposition about what constitutes “war potential,” finally admitted that there were “no clear quantitative measures” and appealed to “the people’s common sense.” War potential, he and the CLB maintained, was definable only in relation to other states’ capabilities and international conditions. It was, in effect, measurable only on a sliding scale. This enabled the formation of the SDF but created new problems. This new CLB interpretation imposed two major constraints on subsequent Japanese security policy: first, it limited force levels to those sufficient to provide self defense narrowly defined, and second, it limited the use of force to self defense. The proscription of aggressive war meant that Japan could not maintain even the capability to conduct “modern warfare.” Nor could it assist allied nations under attack. [26]

This “unified government interpretation,” which specified that the proscribed “war potential” referred only to arms needed for aggression, was just the beginning. Now, “war potential” and “minimum necessary force” would become the baseline for all subsequent constitutional interpretation. The CLB-authored bans on “overseas dispatch” and “collective defense” over time and often under intense pressure, would also be gradually relaxed.

Indeed, the battle was joined immediately. In December 1954, Yoshida—with whom the CLB had found common cause—was replaced by his rival, Hatoyama Ichirô, an anti-mainstream conservative who was determined to revise the Constitution. Concerned that Hatoyama would force the issue and undo its handiwork, the CLB now took the offensive. Senior CLB officials, particularly Director General Hayashi and Deputy Director General Takatsuji, prepared a new interpretation of what was meant by “modern warfare” and how it was connected to the concept of minimum necessary force. If they could establish that the capabilities of the SDF could increase in tandem with the improvements in the technology of modern warfare, they believed they could simultaneously appease Hatoyama and avoid constitutional revision.

It worked. Hayashi recalls in his memoirs that Prime Minister Hatoyama at first resisted using the CLB-prepared materials during interpellations in Diet. But his own cabinet was divided, and with the opposition gaining traction by capitalizing on inconsistencies in his ministers’ explanations, Hatoyama came to rely on the CLB texts. Hayashi concludes that “Prime Minister Hatoyama was an amateur when it came to constitutional arguments and legal theory.”[27] So the CLB, which had been subordinate to Yoshida Shigeru, became more influential under Hatoyama Ichirô, the politician who had vowed to undo the CLB-constructed status quo. After Kishi became Prime Minister in 1957, even he, the most outspoken advocate of constitutional revision, routinely cited the CLB language during Diet interpellations. Yet, as he did so, he also succeeded in having the CLB issue a formal interpretation establishing possession of defensive nuclear weapons as constitutional. In February 1957 during interpellations at the Lower House Budget Committee, Kishi had announced that “we have absolutely no intention of having nuclear weapons.” Soon thereafter, the CLB formally took up the issue of the constitutionality of nuclear weapons and ruled that “so long as they have a defensive character” they are within the limitations of “necessary minimum force” and therefore do not violate Article IX. [28]

Since the concept of “minimum necessary force” had been established on a sliding scale, the battle for control of its definition persists to this day. Political disputes over “necessary limits” (hitsuyô na gendo) gave way to arguments over the “necessary proper sphere” (hitsuyô sôtô na hani) and then “necessary minimum limit” (hitsuyô saisho gendo). And what is “minimum” or “necessary” in a combat situation? Hairs have been split over whether “armed force” (buryoku) is different from “war potential” (senryoku), which is clearly banned by Article IX. Each term carries with it the weight of endlessly parsed legal interpretations. In 1968 the CLB reiterated the sphere within which the SDF can act as “when there is a sudden unprovoked attack on Japan and there are no other means available to protect the lives and safety of the people.”[29]

The debate continued for decades and, indeed, is still far from over, in part because those means—and how they are to be arrived at—were never formally determined. Although the government interpretation allows an SDF officer to take the action he deems necessary to protect Japanese lives and property, it also requires him to have the approval (shônin) of the Prime Minister. To make matters more complicated, the CLB insists that the actions of the Japanese Prime Minister require approval by the Cabinet. And, because the Cabinet operates on a consensus basis, all ministers must agree. Since the Cabinet meets only twice a week, it is hard to imagine a timely authorization for a Japanese soldier under fire. Former Prime Minister Nakasone is only one of many prominent politicians who have criticized the impracticality of the CLB interpretation. After the terrorist attacks on the United States in September 2001, he expressed his dissatisfaction with “the extreme vagueness of the term ‘necessary minimum’ (which) has led to very fragile constitutional interpretations and to groundless practical applications . . .”[30]

Nakasone also expressed concern about the CLB’s 1954 proscription on collective defense, which he insists is designed to avoid force deployment. Nakasone’s frustration with the inability of the SDF to assist another country under attack is long-standing and widely shared among conservative politicians and pundits. In 1951, before the CLB pronouncement, the Vice Minister of Foreign Affairs had told SCAP that Japan could support U.S. troops if they were attacked on Okinawa, which was then not even Japanese territory. After the 1954 interpretation and until the 1980s, however, the CLB interpreted the ban so narrowly that the SDF would not have been allowed to assist a U.S. warship that came under attack while defending Japan. In 1972, a senior CLB official explained to an Upper House committee that Japan could not defend an allied country unless Japan itself were attacked.

This formally changed in May 1981, when the CLB issued its famously tortured interpretation of collective security, giving Japan a right that it is illegal for it to exercise:

“It is recognized under international law that a state has the right of collective self-defense, which is the right to use actual force to stop an armed attack on a foreign country with which it has close relations, even when the state itself is not under direct attack. It is therefore self-evident that since it is a sovereign state, Japan has the right of collective self-defense under international law. The Japanese government nevertheless takes the view that the exercise of the right of self-defense as authorized under Article IX of the Constitution is confined to the minimum necessary level for the defense of the country. The government believes that the exercise of the right of collective self-defense exceeds that limit and is not, therefore, permissible under the Constitution.”[31] Still, when SDF troops were dispatched to Iraq in early 2004, Prime Minister Koizumi and JDA Director General Ishiba took pains to inform other members of America’s “coalition of the willing” that Japanese troops would not come to their defense if they were attacked.

The CLB and the Politicians: Post-Cold War Shifts

Although there has been no formal reinterpretation of the unified government opinion, since the mid-1990s the CLB position has served de facto to legitimate collective defense, partly resolving this contradiction and tilting control of policy toward the politicians. A June 16, 2003, editorial in the Mainichi Shimbun provided a clear perspective on the progressive dilution of CLB-defended constraints on Japanese use of force: “The government opened the way for overseas dispatch of the SDF by enacting the PKO [Peace Keeping Operation] Cooperation Law. It then made it possible to dispatch the SDF to a war zone by enacting the Special Anti-Terrorism Law. The scope of SDF activities overseas will be widened further with the enactment of the Iraq Reconstruction Bill . . .”

The CLB would not have been sidelined quite so effectively by Japan’s political leadership in 2003 had it not openly blocked the dispatch of Japanese Self Defense Forces to the Persian Gulf in 1990-1991. That battle over overseas dispatch and the legitimate use of force was both the high point of CLB power and the beginning of its demise. Japan’s most conservative political leaders have never forgotten the constraints imposed by CLB interpretations, nor have they ever forgiven the CLB for playing upon divisions in the conservative camp and inserting itself so directly into the political debate.

At first, it had all seemed straightforward. Some in the ruling LDP, led by its Secretary-General, Ozawa Ichirô, wanted to dispatch Self Defense Forces as part of the multilateral, UN-sanctioned Peacekeeping Force being assembled by the United States. Ozawa and his allies in the party and the Ministry of Foreign Affairs understood the extant ban on overseas dispatch, but insisted that this deployment would be consistent with the preamble of the Japanese constitution in which Japan’s responsibilities to the international community were acknowledged. They therefore contrived their own interpretation of the Constitution: “collective security” (shudanteki anzen hoshô) could cover participation with other states and would not challenge the extant ban on “collective self-defense” (shudanteki jieiken). But, by the time the Diet opened on October 12, 1990, to debate the dispatch of the SDF to the Gulf, Prime Minister Kaifu Toshiki had been briefed by the CLB and had grown very cautious about the reinterpretation Ozawa and the others were seeking. On that very day Ozawa personally led a delegation of top LDP officials to meet Prime Minister Kaifu at the Prime Minister’s residence (kantei) to propose that the SDF be permitted to use arms under UN command. The Prime Minister reportedly responded by claiming that his hands were tied: “the CLB Director General has told me that this is ‘constitutionally impossible.’” Not surprisingly, this did not go down well with Ozawa or the other senior party officials. Policy Affairs Research Council head Katô Mutsuki reportedly responded heatedly “that sort of CLB Director General should be replaced.”[32] And thus began Ozawa’s subsequent vendetta against bureaucrats in general and against the CLB in particular.

For a time, even though much of the LDP leadership was furious, the CLB enjoyed the upper hand-- no doubt because others in the party found the CLB to be effective cover for their opposition to troop dispatch. Director General Kudô Atsuo declared in the Diet that because the UN’s Kuwait-based peace-keeping force (PKF) plans for the possibility of violence, its members carry arms and therefore are to be understood differently under the Japanese constitution than units sent to supervise a cease-fire: “Within the limits of the minimum force needed to defend themselves and in the event that it withdraws when a peacekeeping force has to act after a cease-fire agreement falls apart, so long as its roles and missions are clear and it is not acting as part of a joint PKF military operation, then it is not in violation of Article IX.”[33]

Although Kudô did allow a difference between the “use of force” (buryoku kôshi) and the “use of arms” (buki shiyô), a difference that later would constitutionally justify Japanese participation in a peace-keeping operation (PKO), it was too late for Japanese participation in this war. In January 1991 the coalition forces acted without Japanese troops and the CLB even rebuffed Japanese Defense Agency proposals to send transport planes to rescue refugees on the grounds that the JDA was authorized to fly overseas only for training purposes.

There was no agreement on just what Japanese troops would be allowed to do. It was clear they could not use force, but could they use weapons to defend themselves? And when could they show up to begin with? Taking an awkward metaphorical turn, one CLB official explained that “it depends on how much time has passed since the snowplow has come through . . . If Japanese troops go out on the road too soon after it was plowed [i.e., fighting has been suppressed], they would be more likely to act jointly with other nations’ forces (ittaika). But if they wait a bit until others have come out onto the road to do their shopping, it will be fine.”[34]

That may be fine, but how imminent would a threat have to be before the SDF could use force? Could they act as a unit or only as threatened individuals? And what if the truce that had enabled their participation collapses and they find themselves in a war zone? Could the Japanese contingent withdraw even if the UN did not? Once again, the CLB had to resort to tortured linguistic tricks to maintain consistency with its previous positions. At one point, the CLB Director General explained with some difficulty that SDF troops would not be using force if the peace-keeping force’s use of force was not uniform, even if the peace-keeping force was established with the mission to use force. This and many other equally “gray zones” resulted in what one analyst has called “cartoon-like” (mangateki) interpellations in Diet.[35]

Since many of these questions remained even after the PKO Law was finally passed in June 1992, it also resulted in determination by politicians—most notably Ozawa, who would float in and out (and in again) of the opposition—to take control back from the bureaucrats. By defining “collective self-defense” as the use of force (and activities indistinguishable from the use of force) in defense of an ally, the CLB’s gray zone stretched to cover cooperation in areas such as refueling, transport, intelligence sharing, and provision of ammunition near the battlefield. And it has been precisely in this expanded gray zone where political debate has persisted.

Whether or not the CLB was ever as powerful as many assert, it seems clear that its fortunes began to wane at this point. For one thing, the CLB was no longer flying under the political radar. CLB Director General Kudô Atsuo had been tying the Diet into knots by parsing interpretations of the Constitution into what seemed like endlessly complicated explanations for Japanese inaction. After LDP elder Watanabe Michio accused Kudô of acting like “the Almighty,” it was open season on the CLB. One unidentified senior LDP leader declared that although the CLB officials were nodding in the direction of dispatching the SDF: “if all they do is nod, they should all be fired (kubi o kashigeru gurai naraba, kubi o kitte shimaeba ii) . . . It is the CLB’s job to check the logic of the Cabinet decisions, not to show the Cabinet where to step. If they are unhappy with that, they should resign.”[36]

Still, the peace-keeping force bill died, and politicians—particularly those on the anti-mainstream right such as Ozawa Ichirô—accelerated their campaign and began to insist that the CLB’s power had exceeded its nominal status. He and other conservative politicians were clearly very frustrated that the U.S.-led coalition in the Persian Gulf had been mobilized with Japanese cash, but without its physical presence. The CLB was no longer a mere advisory organ to the Cabinet and now faced the greatest challenge to its existence “since its creation.”[37]

The second test of collective defense was pressed by the United States in response to the end of the Cold War and the rising security challenges on the Korean Peninsula and the Taiwan Strait. Recognizing that the U.S.-Japan alliance had lost most of its raison d’etre after the end of the Cold War and concerned that the Japanese would opt out, the Clinton Administration sought to reaffirm Japan’s commitment to the Mutual Security Treaty. The CLB was very careful about stipulating what was and what was not possible vis-à-vis collective security. Japanese forces would have to act in a manner consistent with the “minimum necessary force” ideal. They could provide only “rear area support” (kôhô shien)—viz., supplies of fuel and other non-lethal goods to U.S. forces. But the SDF could not combine forces (ittaika) for joint military action. Although the CLB preferred to limit the SDF to actions in Japanese airspace and territorial waters (and then only when it was judged to be free of hostilities), the final agreement stipulated vaguely (and somewhat disingenuously) that “the areas surrounding Japan is not geographic but situational.”[38] Even though CLB officials insisted they could not respond to government demands for new interpretations every time the government wants to do something new, even though they refused to “trample on existing procedure (by) reversing its interpretation by 180 degrees,” the CLB was not going to get everything it wanted.[39]

In fact, this may have been the CLB’s last hurrah. In 1996, Aso Tarô, a senior LDP politician, and Ishiba Shigeru, then a member of Ozawa Ichirô’s New Frontier Party, had fired a joint broadside at the CLB. Aso, who would later be selected by Prime Minister Koizumi as Chairman of the Policy Affairs Research Council (the top policy post in the LDP), declared that “talking as if the CLB Director General was almighty is the best example of how acquiescent everyone is to the rule of bureaucrats.” Ishiba, who would return to the LDP and become Director General of the JDA in the Koizumi Cabinet, addressed the then-extant interpretation of collective defense, arguing that “the CLB has no authority to make such an interpretation. Interpreting the constitution belongs primarily to the judiciary.”[40]

But it was the influential publisher of the Yomiuri Shimbun, Watanabe Tsuneo, who rattled the CLB cage with greatest force. In an unsigned editorial in May 1997, Watanabe argued that the CLB should be abolished. Crediting the CLB with flexibility when it accepted the constitutionality of the Self Defense Forces in 1954, Watanabe argued that the CLB had become “rule bound” (genri shugiteki hôrei koteiha) and inattentive to the fate of the Japanese people. To make his case, Watanabe used the issue of emergency mobilization which, he argued, was impeded by CLB “pettifoggery” (sanbyakudaigen). His solution was the elimination of the CLB and the return of authority in each functional area to the relevant Minister and for legal judgments to the courts.

In June, 1997, after the new U.S.-Japan defense guidelines had been announced, Ozawa queried Prime Minister Hashimoto in the Diet about whether the government’s interpretation on “rear area support” had been relaxed. Before the Prime Minister could respond, however, the CLB Director General intervened to insist that there had been no change. Ozawa recalls that Hashimoto thereupon “retreated into a cloud of circumlocutions. All I wanted was to hear the criteria for the interpretation directly from the Prime Minister (and) I told the CLB Director General that I thought it was presumptuous (senetsu) for a bureaucrat to state the Administration’s or the Cabinet’s position on a question that the Prime Minister should answer himself.”[41] The proud, elite bureaucrats of the CLB were now under sustained, withering attack from the politicians.

In June 1998, Ozawa, now the CLB’s mortal enemy, formed the Liberal Party, with a platform calling for consolidation of the CLB under Diet control. Azuma Shûzô, a senior Liberal Party member, complained that the CLB, “with no specialist on national security, with no specialist on foreign affairs, and with no expert on military affairs” had no business “looking down upon the Diet” in making foreign and security policy.[42] It could not have been welcome news to the CLB when the Liberals joined the LDP government in January 1999 and the coalition members agreed to downgrade the formal status of the CLB Director General to Special Assistant to the Government (seifu tokubetsuhosajin). Adding insult to injury, political appointees would now be required to defend legislative initiatives in Diet debate. While it is some measure of the persistence of CLB power that the Director General was exempted from the ban on bureaucrats’ answering questions on behalf of ministers during Diet deliberations, Ozawa’s successful purge of Director General Omori Masasuke did not go unnoticed in Kasumigaseki and Nagata-chô.

Ozawa’s political offensive aimed at the prerogatives of the CLB was far from isolated. In December 2001, former Prime Minister Nakasone Yasuhiro asked rhetorically: “How long should the Prime Minister (be) treated like a subordinate to the (Cabinet Legislation) Bureau? The relationship should be changed as a matter of independence and self-respect.”[43]

In June 2002, Nakasone denounced the CLB as “legal riffraff” (hôhi). In September 2002, when Noda Yoshihiko ran for the presidency of the Democratic Party, he announced his support for collective defense and promised to appoint his own CLB Director General if he were to become Prime Minister. In May 2003, Tasso Takuya, a young Liberal Party legislator who formerly had been an official in the Ministry of Foreign Affairs, introduced a bill to Diet that would eliminate the CLB altogether. By then Ozawa’s Liberals were again in the opposition, so their legislation had no prospect of passing and died in committee. Still, another marker had been laid down. His party colleague, Liberal Hirano Tatsuo, brought the fight against the CLB directly to the Prime Minister that same month. During interpellations at a plenary session of the House of Councilors, Hirano confronted Prime Minister Koizumi Junichirô: “When interpretations of a bureaucratic agency of the government dominate the legislative process on such an issue as national security, it is a violation of the separation of powers among the three branches of government . . .”[44] For the moment, Koizumi did not side with Ozawa but aligned with the CLB while insisting that it “takes no authority away from either the legislative or judicial branches of government . . . (It merely assists the Cabinet) and I intend to continue to employ its expertise and skill.” But it is Koizumi’s own anti-mainstream conservatism that has led the fight against CLB powers, and it is not clear how sincere Koizumi’s defense of the bureaucracy has been.

After becoming Prime Minister in April 2001, Koizumi learned to mask his policy changes so as not agitate the CLB. In so doing, he succeeded to a striking (though still not complete) degree in keeping the CLB quiescent while fashioning Japan’s support for the U.S. war in Afghanistan after the terrorist attacks of September 11, 2001. Indeed, Koizumi got out in front of his Cabinet, his party, the Diet, and the CLB by declaring unqualified solidarity with the United States and promising military support. When he was “lectured” by the CLB about what was and was not permissible in his “Anti-Terror Legislation,” he openly confronted the Director General, who never “lectured” him again.[45]

Prime Minister Koizumi was very clever. In his first press conference he called for a study of the government interpretation of collective security and assigned this task to the CLB itself. Soon thereafter he announced that there would be no change in the interpretation of Article IX during his administration, but added that “there is room for cautious and mature deliberation.” Koizumi was putting the CLB and opposition parties on notice that his government was prepared to go forward with policy changes without allowing itself to get entangled in CLB hermeneutics. Two days after the attacks on Washington and New York, Chief Cabinet Secretary Fukuda Yasuo assembled a group of five senior bureaucrats to develop plans for deployment of SDF units in support of U.S. operations. The “Anti-Terror Special Measures Law” they drafted never mentions collective security, but does enable the SDF to engage in “cooperative and supportive activities.” The CLB, with the support of recalcitrant LDP politicians, successfully delayed dispatch of Aegis-equipped destroyers to the Indian Ocean, but they could not prevent deployment of Japanese forces far from the “areas surrounding Japan.” Although CLB Director General Tsuno Osamu insisted that any reinterpretation would lead to the collapse of Article IX “like falling dominoes,” he also seemed ready to acquiesce to Prime Minister Koizumi’s will, declaring: “there is wide room for interpretation of collective security.”

In the event, the CLB was unable to withstand “a hard wind blowing its way.” When the “Anti-Terror Bill” was first introduced to Diet, Tsuno indicated that Tomahawk Missiles launched from the ships passing near the U.S. fleet preparing for attacks on Afghanistan would not necessarily be an act of combat (sentô kôi). But, under political pressure, he quickly retracted that position saying “The early interpellations on this issue were embarrassing. It would have been better to recognize frankly these were combat activities.”[46] Diet deliberation of the “Anti-Terror Bill” was far swifter than other related legislation, such as the 1990-1992 PKF/PKO imbroglio and the 1997 Defense Guidelines. Whereas evaluations by the CLB normally took up to three months, this one took but two weeks. Anti-mainstream conservative politicians—particularly the scions of the old Kishi faction, Koizumi Junichirô, Abe Shinzô, and Fukuda Yasuo—were back in the saddle, and the CLB bureaucrats were back on their heels.

Collective defense effectively was a new “fact on the ground.” Japanese naval vessels sailed far out into international waters for the first time since 1945 to assist U.S. and U.K. forces in the spirit—if not the legal letter—of collective defense. Still, questions remained: Was this was a one-off policy possible only because of “the extraordinary circumstances in the aftermath of Sept. 11.”[47] Or had the politicians regained control of the CLB? The answer came soon thereafter when Prime Minister Koizumi decided to assist the United States in its war in Iraq. From the beginning, there were signs that the CLB was being out-muscled by the Prime Minister. In January 2003, CLB Director General Akiyama Osamu told a House of Councilors Budget Committee that Japan would not be violating the ban on collective security if a fighter plane based on a U.S. aircraft carrier fueled by MSDF tankers subsequently flew combat missions in Iraq. Japanese ships were, he declared, restricted to areas outside the field of battle. Departing again from what most observers expected would be the CLB position, Akiyama even declared that “providing support to other countries that have used force against a band of thieves in a tough neighborhood would not pose a constitutional problem.”[48] In mid-April 2003, when the Japanese government announced plans to send civilian bureaucrats to help the U.S.-led administration in Baghdad, Miyazaki Reiichi, Director of the CLB’s First Department explained that even though this administration was run by the U.S. Defense Department, the Japanese government was dispatching civilians, and therefore not violating constitutional proscriptions on collective security or the use of force. CLB Director General Akiyama Osamu concurred that this dispatch “would not categorically pose a constitutional problem.”[49] He even declared that the Theater Missile Defense System under study by the Defense Agency would not pose a constitutional problem.

The CLB seems to have lost its traction altogether. After all, its extant interpretation on “the right of belligerency” seemed to proscribe support for the U.S.-led occupation of Iraq just as clearly as did its proscription on collective defense. In March 1956, then CLB Director General, Hayashi Shûzô, stated “(the right of belligerency) is the right held by nations that are in a state of war, as defined by international law. It includes administering a nation under its occupation . . . Our country is not allowed the right of belligerency.”[50] This proscription was repeated in October 1980, when the CLB reissued its formal interpretation of “the right of belligerency” which “includes the killing, maiming, and destruction of the military forces of another country, the occupation of the territory of another country, and occupation administration therein.”[51] Now, under pressure from the Prime Minister and his political allies, the CLB would neither insist on maintaining nor even altering this interpretation. It simply looked the other way, declaring that Japan would not be a belligerent in Iraq because it was dispatching civilians. And then, after it was clear that SDF troops would in fact be dispatched in early 2004 while the war in Iraq was still far from over, and after other countries had rejected the extant United Nations resolution as insufficient to justify their own dispatch of forces, the CLB continued to keep its head down, mired in what appeared to be deep denial. Japanese troops were legally authorized to embark for the first time since WWII on an overseas mission without the imprimatur of the United Nations or the approval of the host country, a policy that even Ozawa Ichirô opposed. Only the combination of the continued civil unrest in Iraq and an impending general election—not the CLB—prevented the Prime Minister from immediate implementation. Once the election was over and Koizumi was safely returned to power, neither civil unrest in Iraq nor CLB opposition would stop him.

The decision to put Japanese boots on the Iraqi ground-—accomplished finally in January 2004—was epochal. It was particularly stunning because it succeeded despite popular opposition to the war and even though it was so at odds with extant CLB interpretations. The “Iraq Reconstruction Bill” passed through Diet with ease in July 2003, and in November Japanese voters returned the LDP to power despite Koizumi’s promise to send forces to Iraq. Deputy Chief Cabinet Secretary Abe Shinzô took the initiative and openly criticized the CLB. In June, at a meeting of young Diet members he declared that “the CLB has been providing misleading explanations on collective security.”[52] Feeling the heat and no doubt hoping to preserve its remaining prerogatives, the CLB weighed in only once on the issue during the Diet hearings. Responding to a query from Democratic Party representative Haraguchi Kazuhiro, CLB Director General Akiyama replied that nothing had changed in the government’s interpretation of collective security. The ban was not relevant, he insisted, because the SDF would not be directly engaged in any attack. Instead, he pointed out, the government bill was aimed primarily (shutaiteki) at helping Iraqi civilians and cooperating with the international community through humanitarian aid and reconstruction: “Consequently, given these purposes and given the content of this legislation, there is nothing related to the right of collective security in this bill.”[53]

Now the CLB was openly playing defense. Consistent with the “snowplow” metaphor of his predecessors, CLB Director General Akiyama opined that the SDF could even transport weapons in Iraq so long as they perceived that the fighting had ended. They would not, he insisted, be entering combat areas. As in the case of the “Anti-Terror” legislation of 2001, the CLB avoided associating the Iraq legislation with the constitution. And, when pressed, it even chipped away at once bedrock positions with claims such as “there is a difference between the use of weapons under joint international activities and the use of force.”[54]

Thus the CLB seems to have been bested by a determined LDP leadership. It was not a total victory, of course. The restriction of the SDF to a non-combat role delayed deployment until “rear areas” could be identified and it seemed that the widespread guerrilla war in Iraq might be waning. Still, Japan’s political leadership effectively sidelined the CLB. Indeed, Koizumi’s minions were already at work on a frontal assault on the CLB’s ban on collective defense. In a move reminiscent of the 1983 Nakasone victories over the CLB, a panel of experts issued a formal report in May 2003, urging the government to take up the right to collective defense as a policy matter, rather than as a change in constitutional interpretation. Testifying before the Upper House Special Committee for Emergency Legislation a few days later, Chief Cabinet Secretary Fukuda Yasuo declared that Japan’s position on the right of collective defense, banned under current interpretations of the Constitution, will have to change: “I don’t know which Cabinet it will be, but I think the time will come when one will look at the situation and make a judgment. I hope that such a time will come soon.”[55] In fact, the Koizumi government’s call for revision of the constitution was renewed immediately after the November 2003 election.

Wither the CLB and Civilian Control of the Japanese Military?

I have described how the CLB’s role in security policy debates led to vigorous efforts to circumscribe its power or to eliminate it altogether. Ironically, the premium that the conservative CLB places on consistency with past interpretations and its unwillingness to stake out new ones as a matter of “institutional integrity,” actually has frustrated the most conservative Japanese politicians and has encouraged progressives to oppose change in the constitution or its interpretation.

How important has the CLB actually been in the construction of Japan’s security policy? Has it been the “wall” (kabe), “bastion” (gajô), or “watchdog” (banin) that blocks policy change in Japan? Or, as this analysis has suggested, has the balance of power shifted toward politicians over time? More interesting, is it possible that the CLB been subject to selective political control all along? Have mainstream conservatives been using the CLB for political cover all along? That is, might the Japanese case have been mischaracterized as being one of excessive bureaucratic control of the military?

The available evidence is mixed. To be sure, the CLB maintained its power by deftly navigating a “gray area” of constitutional interpretation. Its leadership admitted that ambiguities remain in the interpretation of the constitution, but used those ambiguities to justify its own power. It was the CLB role in the 1990-1991 PKF/PKO debate that most frustrated conservative politicians. At the time it seemed as if the CLB dominated the policy process and was immovable on constitutional reinterpretation. Some analysts have argued, though, that the ultimate passage of the PKO Law is itself evidence that the CLB could not withstand pressure from politicians, foreign governments, and public opinion. In this view, the “final bastion” actually caved in then.[56] But, we are reminded that the CLB had powerful allies in the LDP during the early debates over UN Peacekeeping. Thus it seems that the CLB was able to prevail when its political allies were strong and that it failed when they were not.

There is reason to believe that the CLB was never quite an unassailable fortress after all. It has always been vulnerable to some political manipulation and intervention. Narita Yorihiro, a former CLB examiner, has acknowledged as much. Urging the CLB to openly demonstrate its flexibility, he argues: “All it takes is leadership from the prime minister for the CLB to make changes.”[57] And, indeed, we have seen how determined prime ministers like Yoshida Shigeru could require the CLB to reinterpret the constitution, and how others, like Nakasone Yasuhiro, could overrule the CLB with impunity. There are other, less well publicized, cases in which the CLB has issued remarkably bold interpretations apparently to satisfy a particularly demanding prime minister, as when Kishi Nobusuke declared in 1957 that Japan could legally possess nuclear weapons.

Thus, the argument can be made that the extent to which the CLB held power was the extent to which indulgent politicians used its “objective rulings” to buffer political attacks and thereby to effectively maintain their “1955 system.” The revisionist rightwing of the LDP, which sought new constitutional interpretations, could posture in public while the party would “logroll” behind the scenes. After all, the fact that Japan’s defense budget had become the second largest in the world by the 1990s is evidence enough that the literal meaning of Article IX had long since been abandoned. We have seen a steady accretion of what Nishikawa has aptly labeled “constitutional reform through reinterpretation” (kaishaku kaiken).

Tsuno Osamu, a CLB Director General in the early 2000s, has insisted that Article IX has been stretched as far as it can go. But this may be a red herring. It is clear now that Prime Minister Koizumi is seeking constitutional change. Even if the 1990-1991 PKF/PKO battle made CLB power visible, the position of its officials has been progressively weakened. Subsequent legislation on the U.S.-Japan defense guidelines and on Japan’s contribution to the wars in Afghanistan and Iraq each has empowered the SDF to do more and further from home. Importantly, in none of these cases was the CLB role in the Diet debates particularly noteworthy. Often, it seemed as if the CLB turned its head and looked away. If so, the lesson here may not be the one Tsuno has drawn, for even if Article IX has no stretch left, politicians may continue to find it possible to ignore the constitutional issues altogether—especially if Prime Minister Koizumi’s plan for revision fails.

This, of course, is a potential problem for Japanese civil-military relations. The fundamental question in civil-military relations is: “Who keeps the military out of politics and the politicians out of the military?” The case of postwar Japan, where the military has remained apart from politics since 1945, offers an even more fundamental question: “Who guards the guardians?” The PKF/PKO debates led many to believe that it has been elite bureaucrats, who represent no electoral constituency, rather than politicians, who have guarded the Japanese guardians. On this account, it has been argued that Japan has not had “civilian control” (bunmin tôsei) as much as it has had “bureaucratic control” (bunkan tôsei) of its postwar military.[58]

But the evidence reviewed here is more mixed. Clearly, Japanese bureaucrats have assumed the role of constitutional guardians, often usurping legislative and judicial prerogatives. But, they have not dominated Cabinet governments. While politicians may have appeared to defer to these non-elected officials in the determination of Japanese military policy, and while they may have found it convenient to cede constitutional authority to the CLB, it remains unclear if their deference was real or opportunistic. What is clear is that Japanese military capabilities have expanded since 1945. It is also clear that the legislature did not so much dilute the power of the executive branch, as the executive branch challenged and diluted the power of the legislative and judicial branches vis-à-vis military affairs.

At this point, however, there is still much to be discovered. A full understanding of the balance of power between bureaucrats and politicians—and thereby of civil-military relations—is made difficult by the relative paucity of accounts by CLB officials themselves. CLB officials recognize their privileged position in the Japanese administrative state, and defend their prerogatives well “behind the screen.” Most studies assume that the CLB acts in its own corporate interest, but so long as the CLB is treated as a black box, its influence will be anything but transparent.

Meanwhile, we continue to watch as Japanese leaders rebalance civil-military relations—often overcompensating in the process. Each time a deployment or policy change is imminent, the Japanese press reflexively invokes fears of a return to prewar militarism. And I suspect that so long as the very legitimacy of the Japanese military remains in question, Japanese security policy will not entertain militarism but will continue to lurch from emphasis on one aspect of civilian control to another. As a result of lingering, uncontested hypersensitivities, Japan’s problems will be closer to civilian neglect than civilian control. This suggests the need to shift our attention from legal and constitutional issues to normative ones.



*I am very grateful to Professor Nishikawa Shinichi of Meiji University, William Heinrich, and Sheila Smith for their help with this essay and to Pat Boyd and Llewelyn Hughes for their research assistance.


RICHARD J. SAMUELS is Ford International Professor of Political Science at the Massachusetts Institute of Technology and author, among many other books, of Machiavelli’s Children: Leaders and Their Legacies in Italy and Japan (Cornell University Press, 2003). His email address is samuels@mit.edu.



NOTES

[1] Maxon, 1957, p. 29.

[2] See Yomiuri Shimbun, July 27, 1997.

[3] Nishihara, 1985, p. 135.

[4] Interview, Professor Nishikawa Shinichi, June 27, 2002.

[5] The combined tenures of Hayashi Shûzô and Takatsuji Masaki, the 49th and 50th CLB Directors General, lasted nearly two decades during the 1950s-60s, a period when the average tenure of other cabinet ministers was barely one year. See Kitaoka, 1995, pp. 285-96.

[6] There is no monographic study of the CLB in English, and only two books in Japanese: see Nishikawa, 2000 and Nakamura, 2001. For an official institutional history and reminiscences of the principals, see Naikaku Hôseikyoku Hyakunenshi Henshû Iinkai, 1985. See also the short but informative article in Themis, 2002.

[7] Cited in Nishikawa, 1997, p. 189.

[8] Satô nonetheless claims that he was able to defend several key ideas against the more drastic reforms advocated by SCAP, including the strengthening of the powers of the Prime Minister. See Yomiuri Shimbun, September 7, 1997 and August 10, 1997.

[9] Nishikawa, 1997, pp. 190-91.

[10] In 1962 the LB was formally renamed the Cabinet Legislation Bureau to differentiate it from the LBs in the two houses.

[11] Nishikawa, 2000, p. 74.

[12] See Hayashi’s reflections in Naikaku Hôsei Hyakunenshi Henshû Iinkai, ed., 1985, pp. 4-14.

[13] Omori quoted in Yomiuri Shimbun, October 12, 1997.

[14] Hughes, 2003.

[15] Ibid.

[16] Yomiuri Shimbun, August 9, 1997. It is possible that the official quoted here is also Omori.

[17] Beer and Itoh, 1996, p. 91.

[18] Bungei Shunjû, July 1999, p. 174.

[19] Yomiuri Shimbun, August 10, 1997.

[20] Samuels, 2003, reviews Kishi’s political career.

[21] Mikuriya, 1997. See also Yomiuri Shimbun, August 6, 1997.

[22] This quote and the account of Murayama’s dependence on the CLB is from Nakamura, 2001, p. 3. When asked by this author why the Prime Minister does not simply appoint a CLB Director General who shares his policy preferences, Professor Nishikawa Shinichi explained that “this would cause too much confusion (konran) in the bureaucracy.” As the case of the removal of a MITI official in the early 1990s demonstrated, Japanese politicians replace bureaucrats at some risk to their own prerogatives. Interview, June 27, 2002.

[23] Naikaku Hôseikyoku Hyakunenshi Henshû Iinkai, 1985, pp. 38, 41.

[24] Themis, March 2002, p. 23.

[25] Nakamura, 2001, p. 99.

[26] This formulation is from Boyd, 2003.

[27] Hayashi cited in Yomiuri Shimbun, July 27 and August 6, 1997.

[28] Bôeichô, ed. 1981, p. 143; Higuchi and Ôsuka, 1994, pp. 79-80. Although the constitutionality of nuclear weapons has long been established, the Japanese government has always insisted that it will not possess, produce, or permit the introduction of nuclear weapons as a matter of policy.

[29] Voice, December 2001.

[30] Ibid. Since the 1950’s Japanese officials have taken pains to distinguish between collective defense and collective security. According to Heinrich, 1997, the former leaves open the possibility of cooperation with the United Nations whereas the latter refers to cooperation with U.S. troops.

[31] National Institute for Defense Studies, 2002, p. 315.

[32] See Yomiuri Shimbun, August 15, 1997, for this exchange.

[33] Themis, March 2002, p. 24.

[34] Nishikawa, 2000, p. 121.

[35] Nishikawa, 1997, pp. 237-38.

[36] Politician quoted in the January 19, 1991, Asahi Shimbun, cited by Nishikawa, 1997, p. 249.

[37] Themis, March 2002.

[38] Richardson, 2000, p. 96.

[39] Nakamura, 2001, pp. 171-72.

[40] Bungei Shunjû, August 1996 (FBIS translation).

[41] Shokun, December 1997.

[42] Azuma cited in Nishikawa, 2000, pp. 59-60.

[43] Voice, December 2001 (FBIS translation).

[44] http://kokkai.ndl.go.jp

[45] Nihon Keizai Shimbun, January 3, 2003.

[46] Asahi Shimbun, November 6, 2001.

[47] Sato, 2003.

[48] Nihon Keizai Shimbun, January 2, 2003.

[49] Kyodo, April 16, 2003.

[50] Asahi Shimbun, May 13, 2003.

[51] Mainichi Shimbun, April 16, 2003.

[52] Yomiuri Shimbun, June 7, 2003.

[53] This was the only exchange on collective security identified by Professor Nishikawa Shinichi’s electronic search of the Diet website: http://kokkai.ndl.go.jp using key words: Naikaku Hôsei Kyoku (CLB) and Shudanteki Jieiken (Collective Security). Correspondence, July 2003.

[54] Yomiuri Shimbun, June 10, 2003.

[55] Tokyo Shimbun, May 22, 2003.

[56] Nishikawa, 1997, p. 240.

[57] Narita quoted in Nishikawa, 1997, p. 225.

[58] Hirose, 1991.

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