Detention & Guantanamo

Where is the Law of War Manual? Here!

By Benjamin Wittes
Friday, July 26, 2013, 8:31 AM

I've developed a bit of a backlog of things to post--a regrettable function of a crushing work volume in some of my various other lives and the fact that Lawfare, as it grows, requires more and more day-to-day management, which does tend to pull me away from actually writing for the site. I will try to catch up over the weekend.

Toward that end, I have been meaning to take not of this piece that ran in the Weekly Standard by Edwin Williamson and Hays Parks, as well as by a letter in response from the acting Pentagon General Counsel. The piece, entitled "Where is the Law of War Manual," deals with the decline of the Pentagon's project---which Parks spearheaded---of producing a comprehensive manual on the laws of war. Bobby wrote about the demise of the project here. Write Williamson and Parks:

The draft manual is the most comprehensive law of war manual produced by any nation. It enjoyed the consensus of the four military services. As a senior DoD lawyer acknowledged, the manual was “on the one yard line,” ready for publication once a final editing was completed.

State Department attorneys participated as full partners in the working group. Justice Department officials in the Bush and Obama administrations were advised of preparation of the manual, but showed no interest in participating in the drafting process.

Hence it came as a surprise when State Department lawyers and their counterparts seconded to the National Security Council—at least one of whom had been a participant in the working group meetings and the international peer review—requested a publication delay while they engaged in a “final review” along with their Justice Department counterparts. In December 2010, it was decided that State and Justice would be given two months in which to conduct their reviews for substantive comments only.

From the outset it was agreed that the manual would be apolitical—it would be based on the law rather than political arguments inconsistent with the law of war. For example, the working group rejected arguments by some Bush administration officials that the law of war did not protect captured al Qaeda and that “enhanced interrogation procedures,” including waterboarding, should not be banned.

Obama administration political appointees, though, have aggressively sought changes in the manual to conform to their political philosophies or legal arguments in detainee litigation, pushing for rules and principles that vary from longstanding law of war treaty-based terminology and norms previously accepted by Republican and Democratic administrations.

One of the more egregious changes proposed by State Department political appointees and human rights activists on the National Security Council was the removal of a paragraph acknowledging that the law of war is lex specialis—the controlling law in armed conflict. Denying the lex specialis status of the law of war would enable activists to inject human rights law into the manual and onto the battlefield. Deletion of the lex specialis text was apparently not sought on the basis that it was legally incorrect, but, we suspect, because it was inconsistent with their political agenda.

Such a change would impose restrictions on U.S. forces in combat so that deadly force could be used only against an enemy who had refused a surrender opportunity or who posed an “imminent threat.” These requirements would place our fighters on a footing comparable to a police officer in the United States in a peacetime environment and at an extreme and unprecedented risk of being killed by the enemy or facing “war crimes” allegations by human rights activists.

Justice Department efforts toward the draft manual echo its continued post-9/11 view of the battle with al Qaeda entirely (and incorrectly) from a law enforcement perspective. It seeks to bring the manual text into conformity with terms and arguments it uses in court (many of which are inconsistent with the law of war).

A change Justice Department lawyers sought involved civilians on the battlefield. Under the law of war, a civilian loses immunity from direct attack if he or she “takes a direct part in hostilities.” The working group agreed that this participation does not, however, necessarily constitute criminal activity. Without consulting with working group experts or senior DoD or State policymakers, Justice Department attorneys have asserted that it does. This extreme (and incorrect) position would place at risk of enemy prosecution the substantial number of U.S. and foreign civilians who accompany our armed forces in the field in time of war and whose support is a major basis for the way in which the United States—with congressional approval—determines its military force structure. Justice Department lawyers created new law to enable the department to win its cases against al Qaeda, disregarding battlefield consequences for civilians lawfully accompanying our own forces.

We do not know whether the proposed changes are the cause of the 30-month delay in publishing the manual. The interagency transparency that existed during the 14 years of manual preparation has ceased without explanation.

In response, acting DOD General Counsel Robert Taylor wrote the following letter, which reads in relevant part:

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