About Lawfare: A Brief History of the Term and the Site

Lawfare went live on September 1, 2010. Ben’s first post set forth our general aims and, relatedly, our reasons for selecting our title:

Welcome to Lawfare, a new blog by Robert Chesney, Jack Goldsmith, and myself. For those readers familiar with our prior writings, our subject will come as no surprise: We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. We will, I am sure, construe this subject broadly to include subjects as far-flung as cybersecurity, Guantánamo habeas litigation, targeted killing, biosecurity, universal jurisdiction, the Alien Tort Statute, the state secrets privilege and countless other related and not-so-related matters. . . .

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

Since the term “lawfare” is controversial in some circles, and subject to a variety of interpretations and uses, a bit more explanation about our understanding of the concept is in order. Going back to the 1950s, the term has frequently been used in contexts wholly unrelated to national security, ranging from divorce law to courtroom advocacy to colonialism to airfare for lawyers. But its most prominent usage today very much concerns national security. Its first use in this context, seems to have appeared in "Unrestricted Warfare," a military strategy book written in 1999 by two officers in the People’s Liberation Army who used the term to refer to a nation’s use of legalized international institutions to achieve strategic ends. More significantly, however, the term “lawfare” was popularized in the modern parlance in an influential 2001 paper by then-Air Force Colonel (and later General) Charles Dunlap, who is now the Executive Director of Duke Law School’s Center on Law, Ethics and National Security. As Jack explained in his first post on this blog:

[General Dunlap’s] most influential idea . . . is “lawfare.” I don’t think he was the first to coin the term but he certainly popularized it and was the first to analyze it seriously. General Dunlap first used the term in a 2001 paper that came on the heels of the 1999 Kosovo campaign, in which both lawyers and public debates about the legality of the war figured prominently. “Is lawfare turning warfare into unfair?,” he asked, and his basic answer was “Maybe.” General Dunlap defined “lawfare” as the “use of law as a weapon of war,” which he described as “the newest feature of 21st century combat.” The paper gave many examples of relatively weak U.S. adversaries using legal principles dishonestly and strategically to “handcuff the United States” in an effort to “exploit our values to defeat us.” After cautioning against overreaction and insisting on the importance of adherence to the law of armed conflict, he concluded that “there is disturbing evidence that the rule of law is being hijacked into just another way of fighting (lawfare), to the detriment of humanitarian values as well as the law itself.” General Dunlap subsequently wrote many more essays about “lawfare,” and in part (I think) to rebut misinterpretations or misappropriations of his work, he expanded the definition of the term to mean “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.”

At the time we launched this blog, “lawfare” in some quarters carried solely negative connotations. That is, for many people the terms signified, for better or worse, only the misuse or distortion of legal forms, as distinct from the broader, value-neutral sense involved in General Dunlap’s expanded definition. Many people who sought to make international and domestic law a more significant constraint on the prosecution of armed conflicts thought of the term as kind of political slur that equated legal challenges to government policies as tools of America’s enemies. And some who viewed such efforts suspiciously used the term in precisely this fashion. For example, an advocacy group called The Lawfare Project—which is devoted “to identifying, analyzing, and facilitating a response to lawfare in all of its manifestations”—insists that lawfare “is not something in which persons engage in the pursuit of justice, and must be defined as a negative phenomenon to have any real meaning.”

We do not regard the term as having only negative connotations. For one thing, it seemed to us that the term also resonated on a symbolic level--as Ben’s initial post suggested--with the simple fact that in the post-9/11 era, there have been innumerable sharply-contested legal debates relating to national security—a “war” over the content of national security law, as it were. In addition, Jack’s initial post went on to “offer two examples in which lawfare in the ‘a weapon of war’ sense captures an important reality that is in no way derogatory towards the rule of law”:

First, there is a war of sorts going on over the content and applicability of the laws of war to terrorist activities. It is a war in which battles take place across the ocean (the United States and Europe disagree, for example, whether there can be a war against terrorist groups, and whether terrorists can be detained without trial or be tried in military commissions); between proponents and opponents of the Goldstone Report; between the ICRC and government lawyers about the meaning and applicability of “direct participation in hostilities”; and among lawyers representing alleged terrorists, government lawyers, and judges in the D.C. Circuit. All of the combatants in this “war” believe they are fighting on behalf of the international rule of law, properly understood, and all use legal argument strategically to achieve this end.

Second, it is natural, I think, to see contemporary U.S. counterinsurgency (COIN) operations as an attractive form of lawfare – especially those aspects that involve the construction of legal institutions as a tool to defeat insurgents. The latest example is the brand new Rule of Law Field Force (ROLFF) in Afghanistan, commanded by the redoubtable General Mark Martins. The basic idea of ROLFF is to revive governance and rule of law functions in the Pashtun south where the insurgency is strongest during the “hold” phase of COIN operations (i.e., just after an area has been cleared of insurgents). General Martins, his soldiers, and their Afghan partners are literally fighting to bring ordinary Afghans criminal justice capacity, dispute resolution services, and anti-corruption institutions, all with the aim of promoting the legitimacy of the Afghan government and defeating the insurgency. If that’s not “using law as a weapon of war” I don’t know what is. . . . .

General Martins himself elaborated on his understanding of the term on this blog here and here and here and especially here and here. He concluded, with Jack, that he was, in fact, engaged in lawfare:

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.

Many others are continuing to explore the lawfare concept in all its manifestations as well, as demonstrated by an excellent 2010 issue of the Case Western Reserve Journal of International Law (titled “Lawfare!”) that contains almost two dozen articles on the topic from various perspectives (including the latest views from General Dunlap himself). This blog will continue to address the topic explicitly as well, as occasions arise. More often, however, our focus has been and will continue to be directed to the merits of the underlying legal and policy debates themselves—the “Hard National Security Choices” that also form part of our title.