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Lawfare: So Are We Waging It?

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Thursday, November 25, 2010 at 12:01 AM

Parwan, Friday, November 19, 2010 — The week’s posts up until now—written on a Blackberry while we moved or found small spaces of time between engagements—position me finally to move from the definitional and philosophical matters I pondered yesterday in Khost to Jack’s September question: Do I consider counterinsurgency (COIN) in Afghanistan to be “lawfare.” The BLUF (“bottom line up front”), an expression used by each of the U.S. military services represented here in Parwan province and throughout our military around the world, is that yes, we are waging a form of affirmative lawfare.

I am confident enough in that to have provided the BLUF at the outset on Monday, even before trying to put into clear text and thus confirm my precise reasoning. The conclusion that we are indeed waging a form of lawfare is particularly true of the Rule of Law Field Force (ROLFF).  But there are important caveats, and I will draw illustrations from the preceding four days’ blogs to make the point.

The most obvious of the caveats is that we want no part of the perfidious lawfare described as Meaning A in my post of yesterday—except, that is, to combat those who wage it. Jack specifically distanced COIN operations in Afghanistan from this sense of lawfare, which is not only punishable under multiple articles of the Uniform Code of Military Justice, but is also regarded as dishonorable conduct within our uniformed ranks. Compliance with law is what legitimates the actions of our troops and separates their actions—sometimes necessarily violent and lethal—from what very bad people in criminal mobs do.

Although prompt and transparent reporting on what the Afghan government and its allies are doing and on how these activities comply with the law is imperative to success against the Taliban, U.S. efforts in Afghanistan should also not be too closely identified with lawfare that consists purely of verbal or written commentary relating to law (Meaning B from yesterday). This is an important qualifier for two reasons. First, factual reporting is one thing and legal advocacy another, with the former actually more likely to convince the undecided caught in an internal armed conflict such as we are fighting in Afghanistan.

Second, it is no surprise that we are fighting in Afghanistan. And while war must surely be conceived as part of a continuum that includes policy debate and other expression—recall Clausewitz’s observation that war is not a purely military endeavor but rather a “continuation of political intercourse, carried on with other means”—our operations in Afghanistan have been at too great a cost in treasure and lives for this meaning to dominate. To be clear, Jack made no suggestion that the war here was merely one of argument or discourse and in fact drew very nearly this same distinction himself that I have just drawn.

Then there is the caveat I initially raised at the end of my Monday post and reiterated yesterday: Law is a powerful potential force in COIN, but if it merely becomes subordinated as a “tool” or “weapon” in the service of warfare, its authority and effectiveness will be undermined. The secret mechanism of law, and the reason it can work well against insurgency as the frame for a comprehensive COIN campaign, is really no secret at all.  Individuals deciding whether to support or oppose a government will be attracted, other things being equal, to a government that adheres to law. Deep thinkers have speculated why this is so, with one prominent modern philosopher employing an “original position” and “veil of ignorance” to discern the type of society people would choose if they did not know what position they would occupy in terms of power, wealth, and even personal characteristics when emerging from behind the veil. Although there is no consensus on the precise rules, particularly economic distributive rules, that might reasonably be chosen, there is also no serious disagreement that almost all would choose a government of laws rather than one of men.

But legitimacy is more than law; it requires that a government have both the requisite power to protect the governed and the political authority to do so. While adherence to law figures centrally in a legitimate campaign against insurgency, “legitimate” must not be conflated with “legal.” If a government lacks the power to defend itself and its people against violence and predatory corruption, it will be discredited and regarded as illegitimate even if it brings itself to adhere scrupulously to the law and otherwise comes to be deserving of allegiance. Alternatively, a government can pursue an “effective” campaign against insurgency and terror, relying on brute force alone, but this too must certainly be avoided. Security rooted in such force may earn a government a short season of willing allegiance from a population grateful to be relieved of attacks, but legitimacy—and effectiveness beyond the near term—comes from more than power alone.

What I am calling affirmative lawfare in Afghanistan is more than high sounding phrases such as “rule of law.” It is about helping to assemble the institutions, people, time, money, commitment and security necessary for the government here to acquire capacity and then actually deliver. No doubt, this is difficult. But the Markase Hakmiate Qanoon Dar Parwan (“Parwan Rule of Law Center”), where I am today, is evidence that it can be done even in a society plagued with low literacy and education rates and endemic corruption, as well as ethnic and tribal divisions.

Since January, when seven ministers and other senior government officials responsible for national security and law enforcement signed an agreement to develop rule of law capacity here in Parwan, the Markase Hakmiate Qanoon has acquired significant momentum. Nearly seven hundred corrections guards have been trained, with U.S. funding and support, in preparation for assuming responsibility of a facility to confine—humanely and in accordance with international and Afghan legal standards—Afghanistan’s most serious national security criminals.

Secure Afghan trials of serious offenders are being held in the Justice Center in Parwan (JCIP)—a component of the Markase Hakmiate Qanoon—involving investigators, prosecutors, judges, and other officials pledged in the January inter-ministerial agreement and increasingly featuring forensic and physical evidence. Use of such evidence, with newly trained Afghan expert witnesses, shows promise of one day weaning the system from reliance upon often unreliable confessions. Soon the JCIP will have a 24-hour residential compound, enabling Afghan participants in this dangerous but essential work to function free from intimidation and attack. A strong vocational-technical and education division provides programs for Dari and Pashto literacy, tailoring, agriculture, and other skills, along with moderate religious discussion, for those prisoners with potential to reform. Programs focusing upon tribal shuras and jirgas help link the formal and informal justice and dispute resolution systems. Meanwhile, international trainers and advisors are available on-site around-the-clock, enabling the sort of partnering that transmits skills fastest and most effectively.

The ROLFF is intended to spread the practical methodology that thus far appears to be working here to other provinces, consistent with local security and existing capacity, along with tribal  and other characteristics. Kandahar, Khost, Jalalabad, and perhaps Helmand and Herat are the earliest intended provincial capitals of focus, along with their surrounding districts.

This is affirmative lawfare in Afghanistan: a conscious and concerted reliance upon law to defeat those inside and outside of government who scorn it. Surely, it must be waged as part of a comprehensive COIN campaign and must be focused upon the building and protection of those key rule of law nodes and institutions—formal and informal—upon which the authorities’ legitimacy depends. Great care must also be taken to preserve the initiative of the individual troops who continue to shoulder the most dangerous and significant burdens of this decentralized conflict. But if prosecuted effectively within these ground rules, it may well prove decisive.

Brigadier General Martins, a U.S. Army judge advocate and former infantryman, is the commander of the Rule of Law Field Force–Afghanistan. He can be reached at [email protected]

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