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Mea Culpa: Lawfare

Thursday, September 8, 2011 at 10:35 AM

In the Fall of 2002, a month or so after I started work in the Defense Department General Counsel’s office, I had a chat with Rear Admiral Michael Lohr, who at the time was the Judge Advocate General of the Navy.  I had come to the Pentagon from the University of Chicago Law knowing very little about how the U.S. military worked. At some point in the conversation with Admiral Lohr I said that I was surprised about how law- and lawyer-heavy the Pentagon was.  I probably conveyed doubt, perhaps a lot, that this was a healthy development.  Admiral Lohr patiently explained that the Pentagon was a huge organization, that any such organization needed many rules to function well, that deviations from rule-governed behavior, especially during armed conflict, could have disastrous consequences for the military and the nation, and that lawyers were integral in ensuring that this did not happen.

That conversation was the beginning of my decade-long education about the complex but important role of law in the military and in the national security establishment more generally.  Over the course of the decade, I came to appreciate the wisdom in Lohr’s words.  I am still sensitive to the potential costs of so many lawyers in the military, including risk aversion, loss of initiative, and intrusion on the commander’s prerogative.  But I now better appreciate the benefits, and I think they outweigh the costs on balance.  One of many benefits is the enormous power that the military gains from the constraint of law and lawyers.  Soldiers kill and maim and destroy property and unsettle lives, and American soldiers do so with high-tech weapons that often give them enormous advantages over their adversaries. Adherence to law, and especially to the laws of war that define when and how military force can legitimately employed, is what justifies and excuses these otherwise-terrible acts, renders them moral, and enables a person of conscience and honor to undertake them.  Law compliance is more important than ever in an era where every military conflict plays out on the internet for all to see and criticize, and in which law is (as my colleague David Kennedy puts it) “a vocabulary for judgment” and “a mark of legitimacy.” Lawful action—and, just as important, the perception of lawful action—is more than a demand of honor or morality or something to abide to withstand legal scrutiny; it is a military imperative.  Some of the USG’s greatest defeats in its post-9/11 wars have related to non-compliance with law. As legality has moved to center stage as a military consideration, lawyers have necessarily moved with it in order to guide commanders and defend the legality of controversial war decisions to the public.

Relatedly, my views on lawfare have changed.  I started the decade in the camp of those who saw the novel cascade of legal criticisms and lawsuits against the U.S. government’s counterterrorism policies simply as efforts to use law strategically “as a weapon of war” to “handcuff the United States,” as Charlie Dunlap put it in his seminal paper.  This may well be the motivation of some of USG critics, both inside and outside the government, but the issue, I now realize, is much more complex.  As war has become hyper-legalized, and as legality has become the currency of legitimacy for military action, it is inevitable that government critics will use law as a measure of critique and a tool of sanction.  But the Executive branch uses law strategically as well.  The President’s legitimate military power flows from domestic and international law.  His lawyers are in constant battle—with the media, NGOs, and terrorists in federal court—for their favored understandings of the law, and in these battles they interpret and employ law strategically to further their aims. The United States also employs law strategically when it seizes terrorist assets, buys commercial satellite imagery, hires private security forces, threatens sanctions, and engages in thousands of other war-related acts every day. To take one of many other examples, counterinsurgency strategy, including the Rule of Law Field Force – Afghanistan, is also a form of using law strategically as a weapon in war.  “Lawfare in this sense,” Mark Martins noted on this blog, “is in many respects the opposite of the manipulative original connotation of the term.”

There is no escaping the strategic use of law in war because law defines and touches on every aspect of war.  There are certainly abuses of law in war. But in a world in which legal norms touching on war are contested and the interpreters of these norms are many and varied, it is often hard to say, except in clear cases of dishonesty, that law is used abusively.  There are of course many potential costs of lawfare, including many of the same costs associated with the rise of lawyers in the military.  But complaining about the strategic use of law against the USG, I now realize, is futile; the USG, and every other actor in war, uses law strategically, and lawfare is not going away.  A much better approach, I now think, is (a) to recognize that legality and the perception of legality and the contested development of legal norms are an inevitable part of the battlefield, and (b) do one’s best to win the war over law while controlling its many costs.