Kakehashi Trip Report #5: JSA Perspective on Japanese Law No. 55 of 2009

As part of my Kakehashi Project independent research day, I had the opportunity to meet with the Japanese Shipowners Association (JSA). In 2006, JSA took notice of the growing maritime security threat posed by Somali-based pirates to international commercial maritime shipping. However, the issue was not top of mind in Japan, even among the major lines. It simply wasn’t a priority. And, many Japanese felt that it was not the responsibility of the Government of Japan (GoJ) to intervene in such matters overseas.

However, JSA did not endorse this line of thinking. Even in 2006, JSA felt that the GoJ had the responsibility to protect Japanese flagged vessels. JSA viewed “the protection of Japanese life and property” as a basic sovereign responsibility. However, JSA recognized that the GoJ had “limited powers” to fulfill those responsibilities outside of Japanese territorial waters. This was a consequence of the severe political and legal limitation placed on the military in the aftermath of the Second World War. If the GoJ were to act without explicit legal authorizations, JSA felt that there would be serious disagreement within Japanese society over whether such actions were allowed under the Constitution. JSA therefore realized that Japan needed new legislation to tackle the problem. But, they were not going to push for such legislation unless there was a clear and present need, which did not appear to be the case at that time.

In 2007 and 2008, that changed. The number of serious attacks off the coast of Somalia continued to rise, including high-profile hijackings of Japanese associated vessels. Soon, JSA was being asked by its members to “push the government to do something.” In April of 2008, the JSA President responded by sending a demanding letter to the Japanese Minister of Land, Infrastructure, Transport and TourismMinister of Finance, and Minister of Defense  asking for new legislation to tackle maritime piracy. To be clear, the JSA did not ask for legislation to authorize the deployment of the Japanese Maritime Self-Defence Forces (JMSDF). That would have been unthinkable given Japanese political sensitivities about the Japanese navy since World War II. Instead, the JSA took the indirect approach of asking for something to be done; deferring the decision about what that something entailed to the GoJ. However, given the perceived seriousness of the threat to Japanese associated ships and seafarers, the JSA “hoped the government would pass legislation to deploy the (JMSDF)” as a result of their request.

While its members played a pivot role in pushing the JSA to take action, they were not the only factor behind the JSA’s decision to send the demanding letter to the Ministers. As a member of the International Chamber of Shipping (ICS) and through its London Office, JSA was privy to international discussions on the issue of Somali maritime piracy within ICS, at the International Maritime Organization (IMO), and at the United Nations (UN). JSA “followed the decisions of the ICS” on the issue; believing it was important to align with the other major shipping associations on the issue. JSA recognized from those decisions that there was an international movement to respond to the Somali maritime piracy issue with force. And, they agreed with the growing international consensus, later embodied in the June 2008 UN Security Council (UNSC) Resolution, that every country with the military capacity to do so had the responsibility to deploy to the coast of Somalia to protect commercial seafarers regardless of nationality. These developments reinforced JSA’s decision to take action.

However, JSA never believed that the GoJ was ever legally obligated to deploy Japanese military assets to combat piracy under international law. JSA maintained that the decision to do so remained a sovereign one that had to be based upon Japanese laws and supported by the Japanese people. While international consensus on the need to take military action provided strong arguments, the JSA never supported any notion that either the UNSC Resolutions or other international agreements required Japan to pass Law No. 55 of 2009 and deploy the military. JSA held that the decision to deploy the military always remained a decision for the Japanese people to make. And in Japan, like most other democracies, that decision was delegated to the parliament. It was only their passage of Law No. 55 of 2009 that gave the GoJ the political, legal, and moral authority to deploy the military to combat Somali maritime piracy. It was only through the law that those actions would have been accepted by the Japanese people.

When Law No. 55 of 2009 passed, JSA immediately noticed a change – “a turning point” – in how the industry engaged with the GoJ. Prior to the law, the primary channel between the industry and the GoJ was through the MLIT. However, once the JMSDF joined the escort missions, a new channel was opened with the Ministry of Defence (MoD). Over time, this channel has only strengthened and deeper cooperation has followed.

In retrospect, the JSA believes Law No. 55 of 2009 was the right move for Japan. And, they also support the 2013″The Act on Special Measures Concerning the Guarding of Japanese Ships in Pirate-infested Waters.” While JSA would have preferred a non-military solution, JSA believes that the military response remains the only way to successfully mitigate the threat posed by Somali maritime pirates to Japanese national interests. This belief reinforces their support for Japan’s continued engagement in counter-piracy operations off the coast of Somalia, including Japan’s recent decision to join Combined Task Force 151.

This is the fifth in a series of reports related to the Japan Foundation’s Kakehashi Visit for Young Public Intellectuals from January 12-22, 2014. The author represented SOAS, University of London and the Federation of American Scientists as part of the Pacific Forum CSIS Young Leaders delegation.

Kakehashi Trip Report #4: JICA Officials Share Perspectives on the Security-Development Nexus in East Africa

During my independent research for the Kakehashi Project, I met with officials from the Japanese International Cooperation Agency (JICA) to discuss Japan’s development assistance to East Africa. We specifically addressed the emerging nexus between Japan’s security and development initiatives in the region.

Since 1967, the Government of Japan (GoJ) has been managing defense trade exports under the Three Principles on Arms Exports. The law was intended to avoid any possibility that Japanese arms exports would “aggravate international conflicts.” Under the Three Principles, the GoJ bans Japanese companies from making defense trade exports to: 1) communist bloc countries; 2) countries subject to arms exports embargo under United Nations Security Council Resolutions; 3) countries involved in or likely to be involved in international conflicts. The GoJ took additional steps in 1976 to establish blanket policy guidelines to further restrain defense trade exports to all other countries “in conformity with Japan’s position as a peace-loving nation.”

The Administration of Prime Minister Shinzo Abe is now working to change these laws in order to allow Japan to export military equipment to “international organizations such as those involved in U.N. peacekeeping operations on condition they do not take sides in conflicts.” This decision coincides with a growing trade deficit that is threatening to undermine Japan’s economic recovery. From this perspective, the defense trade exports are viewed to be as much a part of the Administration’s export promotion efforts as they are part of the country’s much debated military normalization process.

This brings us to the issue of capacity building in East Africa. One of the initiatives being pushed by the Abe Administration is to provide the littoral countries in the region with new capabilities to conduct counter-piracy operations. This includes the export of modern naval ships to the region and military training for their coast guards. According to JICA, these programs are likely to move forward but will present a challenge for the government because they raise delicate political sensitivities. In the case of the ships, the fact that they will be provided to civil authorities may not be enough. As modern naval vessels equipped with armaments, including machine guns, their export could enflame the domestic debate over the principles that ban arms export to any country since 1976 and the appropriate role for the military and defense industry in Japan today.

Djibouti serves as an interesting case because it has not traditionally been a major focus of JICA. However, the political context has changed since Japan opened its first semi-permanent overseas military base in Djibouti in 2011. That base, which supports counter-piracy and peacekeeping operations in the region, has raised the profile of Djibouti with politicians and defense officials. As a consequence, JICA has been required by the government to expand its operations in the country as part of Japan’s wider efforts to help secure vital trade and energy routes that pass through the region.

That said, JICA is designed to deliver development aid, not to provide military ships and training for security purpose. In other countries, this would typically fall to military defense cooperation agencies. However, it would be politically difficult for the Ministry of Defence to provide such assistance directly in Japan. While that could change once the export laws are changed and society is normalized to the military playing a bigger role in Japan’s foreign policy, JICA officials believe this will take some time. Until then, the GoJ will need to work through JICA and the Japanese Coast Guard to provide coast guard services within the extent that they remain civilian security services.

For JICA, this is a “delicate issue” because there is a lot of tension in a development agency to playing a direct role in supporting security operations in the region. The region poses serious dangers for JICA staff. The agency is not allowed to operate in Somalia due to security concerns in that country. And, its staff recently had to be evacuated from both South Sudan and Yemen. JICA is therefore aware of the challenge to provide naval vessels to coastal countries in these areas even though they are intended solely for civil law enforcement purposes.

According to one official, “In my personal opinion, this should be a military operation. JICA is a development assistance agency not a specialist in combatting piracy. We can get support from the Coast Guard, who has the expertise. But, they have the conflict in the Senakakus to manage” and might not have the capacity to support the operation on the scale imagined. JICA is therefore reticent to expand the scale of such programs.

Despite the organization’s reservations, JICA must nevertheless plan for follow through on the GoJ’s request to make these transfers when the export law changes go into effect. At present, JICA believes the first request will be for Djibouti. Even though the United States (U.S.) and United Kingdom (U.K.) would like Japan to send ships to Yemen, the situation there is too unstable. The Japanese Coast Guard and JICA have even stopped their training assistance to the Yemeni Coast Guard.

One official that I spoke with believes that the U.S. and U.K. are more experienced in these complex security environments and should take the lead. The official also said that Yemen is not the case for Japan to take on. Regardless of the operational security concerns, the Three Principles make it clear that Japan is not to export to countries engaged in international conflict. Given the international nature of terrorism and the number of actors engaged in the conflict in Yemen, that official felt that it is unlikely that Japan will provide naval vessels or further training to Yemen anytime soon.

However, Somalia is a potential candidate. In 2013, Japan resumed support to the new government in that country. This followed the Somali government’s perceived consolidation of power in the country. As a result of these changes, Somalia was invited to the Tokyo International Conference on African Development V (TICAD V). Japan is now investigating how to support counter-piracy capacity building in the country. While it is too early to consider the provisioning of a naval vessel to their coast guard, this request could follow. But, trust must be built first. And, there are still serious debates within the GoJ as to whether Japan should lead with security sector capacity building or social sector (education and health) capacity building. Right now, it is too early to tell which direction Japan will take.

However, JICA officials recognize that peace and security (P&S) will be a major focus for their organization moving forward. In TICAD V, the GoJ raised P&S to one of the most urgent areas of focus for development. This followed the deadly attacks in Algeria, which claimed the lives of 10 Japanese engineers. As a consequence of that incident, Abe made P&S a precondition for expanding Japanese business interests abroad. JICA is receiving requests from both the Japanese business community and the GoJ to promote increased peace and stability in Africa as part of the country’s export promotion agenda. Somalia and the Sahel are now viewed as two of the GoJ’s most important commitments in Africa.

The challenge for JICA is that Japanese development assistance traditionally starts from social sector capacity building and infrastructure development. Japan does not have deep experience in security sector capacity building and peace building operations when compared to other major powers. Even though Japan has developed an impressive record supporting U.N. peacekeeping operations in the last decade, this is a very recent shift in focus for Japan. JICA is therefore struggling to respond to the new P&S focus while simultaneously supporting its traditional development assistance programs around the world.

Looking ahead, how JICA responds will have a major impact on Japanese development assistance in Africa. Right now, piracy and terrorism are two important issues for the country. In fact, both piracy and Somalia were highlighted in Abe’s address at TICAD V. However, Japan’s support for counter-piracy operations in Africa is a very small percentage of its overall budget commitments and global strategy. JICA must therefore be careful not to undermine its other commitments.

Whereas Djibouti and Somalia have traditionally been lower priorities for JICA, Kenya remains the organization’s most important commitment in Africa. Since the 1960s, Japan has been engaged in projects in the country. And, according to one official, the Japanese people have developed a “psychological closeness” with Kenyans, Tanzanians, and Ethiopians in a way that’s unrivaled in the rest of Africa. In 2013, Japan committed $100 million in grants and technical cooperation to the country. Plus, Japan has made long-term aid commitments of $200-$300 million annually, including marquee projects like the Mombasa Port and Kenya’s modernization of power generation. While Japan is also talking to Kenya about providing naval vessels and training to its Coast Guard, these efforts pail in comparison to the larger infrastructure, agriculture, education, health, and environmental projects that JICA is leading in the country.

Another country of focus is Mozambique, where the GoJ sees huge potential for natural gas production. In the aftermath of the Fukushima incident and rising global competition for energy resources, such energy projects are of top priority for Japan. The GoJ has responded by tasking its ministries to focus on the country. JICA has responded by working with Mitsui Group and other private sector actors to secure oil exploration and development projects in the country. However, JICA recognizes that the relationship between the two countries must be built upon more than natural gas exports. JICA is therefore spearheading new projects in the infrastructure and agricultural sectors that could promote development in Mozambique that would make it possible for the country to play a role in Japan’s economic recovery and export promotion strategies. In this way, JICA is building a new import-export market for Japanese investors. The hope is that private sector actors will now follow and make long-term commitments to the country. If they do, Mozambique and Kenya could emerge as major lynchpins for Japanese investment on the continent.

This is the fourth in a series of reports related to the Japan Foundation’s Kakehashi Visit for Young Public Intellectuals from January 12-22, 2014. The author represented SOAS, University of London and the Federation of American Scientists as part of the Pacific Forum CSIS Young Leaders delegation.

Kakehashi Trip Report #3: Shipowner Shares Perspective on Industry Response to Somali Piracy

As part of my Kakehashi Project independent research day, I had the opportunity to meet with a senior maritime security officer at a major Japanese commercial maritime shipping line to discuss the role of their industry in the country’s response to Somali maritime piracy. I have tried to capture the major takeaways from our discussion below.

Traditionally, the maritime security officer said that the relationship between the Japanese commercial maritime shipping industry and Japanese and foreign militaries has been unusually weak as a consequence of the considerable losses suffered by Japanese commercial maritime shipping industry during the Second World War. Although not widely known, I was told that more commercial seafarers were killed during the war than Japanese soldiers. As a consequence, the industry remains reticent to draw too close to the Japanese Maritime Self Defence Forces (JMSDF). However, since the passage of Law on Punishment of and Measures against Acts of Piracy (Law No. 55 of 2009), there has been a noticeable change in the willingness of the industry to partner with the Japanese Government, the European Union, NATO, and others to confront the threat posed by Somali maritime pirates. This has only increased following the passage of 2013 revisions to the Japanese Firearms and Swords Control Law, which gave Japanese flagged vessels the right to employ armed guards.

However, the maritime security officer felt that it would be wrong to say that the relations between the Japanese commercial maritime shipping industry and the JMSDF are comparable with those of other major powers. To this day, the industry regularly liaises with the U.S. Navy and the European Union Naval Forces but not the JMSDF. Such correspondence is instead routed through the Ministry of Land, Infrastructure, and Transportation (MLIT). While bridges are starting to be built on a personal level between the industry and JMSDF, there remain major barriers that inhibit deep cooperation. In the meantime, the industry relies heavily on the European Union, NATO, and the Combined Maritime Forces for information about Somali maritime piracy.

Nevertheless, the maritime security officer argued that the industry has come a long way in recognizing the need for the Japanese Government to play a leading role in confronting Somali maritime piracy. In 2006, the industry was “not so serious” about the threat posed by Somali maritime pirates and the maritime security officer’s line did not request anything of the government on this account. However, by 2007, their company had established a new team to address the issue and started to talk to the Japanese Shipowners Association (JSA) about the need to engage the government. This followed the Golden Nori incident, which made the industry aware of the seriousness of the threat posed by the Somali maritime pirates. At first, the focus was on the threat of terrorism. However, by 2008, the industry recognized the larger economic security threat posed by the Somali maritime pirates.

At that time of the Golden Nori incident, the maritime security officer held that the Japanese Seafarers Laws (Sen In Ho) were the only laws on the book that addressed maritime piracy. Unfortunately, those laws were weak in that they bundled maritime piracy under the undefined term “serious marine accident.” The industry therefore fully supported the enactment of Law No. 55 of 2009 for two major reasons: 1) it clearly defined what constituted an act of maritime piracy; 2) it conferred specific rights and responsibilities on the Government of Japan to protect commercial vessels from these now defined acts of piracy. Initially, the industry felt that this went far enough. However, by 2011, it was clear that the international military response was not enough. The industry then supported the enactment of 2013 revisions to the Japanese Firearms and Swords Control Law, which gave the commercial shipowners the powers to employ armed guards aboard Japanese flagged vessels. While this was something new in Japan, it was already a generally accepted practice in many countries around the world, which was one of the reasons why the law was able to pass in the Diet.

According to the maritime security officer, the issue of reporting remains contentious in Japan. While the Law No. 55 of 2009, clearly defines acts of piracy, it does so merely for the purpose of restraining the powers granted to the Japanese Government under the law. As a consequence, it remains unclear whether these acts do or do not fall under the serious marine accident reporting requirements of the Japanese Seafarers Laws and thus whether or not the owner and master are obligated to report such incidents to the Japanese Government. Reporting therefore remains a voluntary practice that is defined by company policy and the subjective determination of the master. While the major lines tend to err on the side of caution, there remains no industry standard or requirement. Furthermore, there is no movement in Japan at present to re-examine “serious marine incident reporting” or to place reporting rules on the shipowners or ship management companies in lieu of the masters for a variety of reasons.

However, the maritime security officer confirmed that the increased military activity in the Western Indian Ocean has made the entire Japanese shipping industry aware of the need to be vigilant in reporting such incidents because there are now multiple channels monitoring the situation in the region. A failure to report an incident can therefore be picked up by another channel and shared with the Government of Japan. This has incentivized the Japanese commercial shipping industry to report more incidents than in the past, especially small scale incidents and failed attempts that otherwise would have gone unreported. This in turn ensures that there is far more information in the system about piracy than in the past.

This is the third in a series of reports related to the Japan Foundation’s Kakehashi Visit for Young Public Intellectuals from January 12-22, 2014. The author represented SOAS, University of London and the Federation of American Scientists as part of the Pacific Forum CSIS Young Leaders delegation.

Kakehashi Trip Report #2: Law Professors Share Perspectives on Law on Punishment of and Measures against Acts of Piracy (Law No. 55 of 2009)

Through the Kakehashi Project, I had the opportunity to meet with Professor Kazuhiro Nakatani and Dr. Yurika Ishii at the University of Tokyo to discuss the Law on Punishment of and Measures against Acts of Piracy (Law No. 55 of 2009). Our conversation centered on how Law No. 55 of 2009 significantly altered Japan’s approach to international piracy. Much of our focus centered on Articles 2 and 6.

With respect to Article 2, we discussed how Law No. 55 of 2009 placed clear limits on the ontological question “What is piracy?” In explicitly defining the term (e.g., the specific acts), the law set forth a domestic legal basis under which Japanese Coast Guard vessels could employ self-defense measures consistent with international law. It was pointed out that the language used significantly expanded the set of acts that could be interpreted as piracy under Japanese law, especially Article 2 (vi) which defined “operating a ship and approaching in close proximity of, beleaguering, or obstructing the passage of another ship in navigation for the purpose of committing the acts of piracy” as an act of piracy.

With respect to Article 6, we discussed how Law No. 55 of 2009 provided the legal authorization needed for the Japanese Coast Guard to employ force when conducting counter-piracy operations. By explicitly authorizing the use of force for a wide range of actions, Article 6 provided powers to the Japanese government that were not granted under existing legislation. This included scenarios that would not otherwise fall under the “imminent threat” limitations that preconditioned use of force under the constitution and pre-existing self-defense laws.

After discussing the specifics of the law, our conversation turned to the factors that made it possible for the law to be passed in the first place. According to Professor Nakatani, the U.N. Security Council (UNSC) Resolution in June of 2008 was a major driver. However, he cautioned against labeling it a causal factor. From his perspective, the material damage to Japanese affiliated shipping interests imparted by Somali-based pirates was sufficient to justify the passage of the law.

Of course, this presents an interesting counter-factual scenario. Would Japan have passed Law No. 55 of 2009 if the UNSC had not passed the 2008 and 2009 resolutions on Somali piracy? It is difficult to answer this question and our conversation certainly did not provide resolution of that question. But, the professors did point out that Japanese policymakers were aware that someone had to do something with or without the UNSC resolution. Whether that something would have been the Japanese Coast Guard action authorized under Law No. 55 of 2009 remains an open question.

One of the final topics discussed was how the link between terrorism and piracy impacted the lawmaking process with respect to Law No. 55 of 2009. According to Professor Nakatani, it was suspected that Somali piracy was connected to terrorists in Somalia throughout the lawmaking process. This raised an important question for lawmakers: “Should the perpetrators of piracy be considered private citizens or state actors?” Of course, this had major implications for how the Japanese Coast Guard could respond. Yet, it had not been a major topic of discussion prior to 2009 because Japan had not sought to take a direct role in conducting counter-piracy operations. The decision to do so necessitated consideration of this issue.

This is the second in a series of reports related to the Japan Foundation’s Kakehashi Visit for Young Public Intellectuals from January 12-22, 2014. The author represented SOAS, University of London and the Federation of American Scientists as part of the Pacific Forum CSIS Young Leaders delegation.

Kakehashi Trip Report #1: Hiroshima Survivor Shares Perspectives

Over the weekend, I had the opportunity to visit the Hiroshima National Peace Memorial Hall for Atomic Bomb Victims as part of the Kakehashi Young Public Intellectuals Trip. During the visit, our delegation had the opportunity to meet with one of the survivors of the Hiroshima bombing and hear about its impact on his life. He spoke at length about his experience during and after the bombing, including the deaths of his mother, neighbor, and playmates. It was a moving presentation that serves as a reminder of the devastating effects of nuclear war.

Following the presentation, our delegation was provided an opportunity to ask questions of the survivor. Many centered on how the attack affects his personal views on various contemporary security issues, including the Japan-United States Alliance.

When asked for his opinion on the U.S. military currently stationed in Japan, the survivor responded that this was necessary given the threat by the People’s Republic of China and the Democratic People’s Republic of Korea. At the same time, he emphasized the importance of peace throughout his remarks and challenged our delegation to remain committed to securing a world without war.

At the end of the event, a few members of our delegation were able to continue our discussion with the survivor. This provided an opportunity to hear his personal take on the U.S. military officials who perpetrated the bombing. When asked if he considered those who ordered and carried out the bombing to be war criminals, he responded that he did. But, at the same time, he reminded us that many atrocities were carried out by all parties during the war.

For this reason, he said that he did not feel that those officials associated with the bombing should be barred from burial in U.S. military cemeteries. Nor did he feel that American leaders should stop paying their respects at Arlington National Cemetery – even if those affiliated with the attack are buried there. In his words, one should not disrespect the dead. I found these comments to be particularly interesting given the international debate over the Prime Minister Shinzo Abe’s visit to the Yasukuni Shrine.

This is the first in a series of reports related to the Japan Foundation’s Kakehashi Visit for Young Public Intellectuals from January 12-22, 2014. The author represented the Federation of American Scientists as part of the Pacific Forum CSIS Young Leaders delegation.

Nuclear Posture Review to Reduce Regional Role of Nuclear Weapons

The Quadrennial Deference Review forecasts reduction in regional role of nuclear weapons.

By Hans M. Kristensen

A little-noticed section of the Quadrennial Defense Review recently published by the Pentagon suggests that that the Obama administration’s forthcoming Nuclear Posture Review will reduce the role of nuclear weapons in regional scenarios.

The apparent reduction coincides with a proposal by five NATO allies to withdraw the remaining U.S. tactical nuclear weapons from Europe.

Another casualty appears to be a decision to retire the nuclear-armed Tomahawk sea-launched land-attack cruise missile, despite the efforts of the Congressional Strategic Posture Commission.

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Japanese Government Rejects TLAM/N Claim

Katsuya Okada and Hillary Clinton met in September 2009.

By Hans M. Kristensen

The Japanese government has officially rejected claims made by some that Japan is opposed to the United States retiring the nuclear Tomahawk Land-Attack Missile (TLAM/N).

The final report of the Congressional Commission on the Strategic Posture of the United States from May 2009 emphasized the importance of maintaining the TLAM/N for extended deterrence in Asia by referring to private conversations with specifically “one particularly important ally” (read: Japan) that “would be very concerned by TLAM/N retirement.”

In a letter sent to Secretary of State Hillary Clinton on December 24, 2009, Japanese Foreign Minister Katsuya Okada explicitly says that the Japanese government has expressed no such views. Continue reading

Japan, TLAM/N, and Extended Deterrence

PACOM Commander Admiral Keating is “unaware” of the Japanese interest in the nuclear Tomahawk cruise missile reported by the Congressional Strategic Posture Commission.

By Hans M. Kristensen

Admiral Timothy J. Keating, who is Commander of U.S. Pacific Command, said Monday that he is “unaware of specific Japanese interests in the” nuclear-armed Tomahawk Land-Attack Missile.

That’s interesting because the Congressional Strategic Posture Commission recently pointed explicitly to such a Japanese interest in the role that the missile – known as the TLAM/N – provides in extending a U.S. nuclear umbrella over Japan to deter nuclear attacks against it from China and other potential adversaries in the region.

We would expect the commander of Pacific forces to be in close contact with the highest levels of the Japanese government and military.  Shouldn’t he be aware of a specific Japanese interest in specific weapons for the U.S. nuclear umbrella?  So statements to the contrary in the recent Congressional Commission report seem odd and worth investigating.

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