No Comment — November 30, 2007, 4:56 pm

A Kinder, Gentler Lawfare

Charles J. Dunlap, the Air Force’s Deputy Judge Advocate General, delivered some remarks at an ABA luncheon on November 16, in which he takes a nostalgic tour through the development of the phrase “lawfare.” He eventually comes to talk about my piece in the July issue entitled “State of Exception.” I charted the tactics used by the Bush Administration to frustrate Guantánamo defense counsel—both uniformed military lawyers and civilian pro bono counsel—from doing their job in conducting a proper professional defense of their clients. The Bush Administration has taken extraordinary steps to vilify and abuse not just the Guantánamo detainees, but also their lawyers. And I pointed to the “lawfare” concept, as it has been developed and applied by the Administration, as an ideological cover for what transpired. Dunlap takes umbrage at this and says that it is “absurd” to assume that lawfare as he has cast the term could be applied in a way that was so “intrinsically evil.”

Dunlap prides himself on being a coiner of the “lawfare” concept, and in fact I quoted him in the article. A paper that he gave at the Carr Center(PDF) at Harvard back in 2001 is, I think, the first clear articulation of the concept that evolved into the Bush Administration doctrine. Of course the phrase had been used many times before, a few of them in ways which actually proximated Dunlap’s use.

In Dunlap’s revisiting, we learn that “lawfare can operate as a positive ‘good.’ Ideally, substituting lawfare methodologies for traditional military means can reduce the destructiveness of war, if not its frequency.” He cites examples, prominently the use of a contract to preclude potentially harmful, publicly available high-resolution satellite imagery from coming into the wrong hands. As he now describes it, the law is just another tool (weapon, if you will) which can be used by parties in a conflict, not necessarily something bad. He gives us “lawfare” as a neutral concept. But this is quite a shift in attitude from Dunlap’s 2001 paper, whose core lies in the provocative statement 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.

In any event, I should confess that skeptical as I am about the “lawfare” concept, I’ve always liked Dunlap. He’s an innovative thinker capable of quickly moving outside of the box, and someone constantly willing to experiment with, turnover—and reject, if appropriate, new ideas. I never had any concern that the concept of “lawfare” as he conceived and applied it was going to lead to some mass-infringement of core values. He was working on an analytical tool—an alternative approach to studying and understanding a set of issues.

The problem arises when “lawfare” is used as a rationale to bend the rules and distort the system of justice. That has happened in spades: the abuses that have turned Guantánamo into an international by-word for the abuses of the Bush Administration make that plain. In another column I have authored which will appear shortly, I examine how General Musharraf explicitly relied upon the “lawfare” concept in his decision to suspend the Pakistani constitution, declare emergency rule, and arrest almost all of the nation’s senior judges and lawyers. Now these are not consequences that Dunlap intended to flow from the “lawfare” concept. But they are consequences that did in fact flow from it.

And indeed, Dunlap in his speech looks at just the sort of hysterical application of “lawfare” thinking that has done damage. He reviews another in the series of preposterous inky emissions from John Yoo, this time an article in the UCLA Law Review. Yoo there rants against the “breakdown in civilian-military relations.” His understanding of the issue is an excellent demonstration of the current problem, which has arisen entirely thanks to the appearance on the public stage of John Yoo and similar political hacks masquerading as lawyers. Yoo believes that the military play a simple role—they give advice if called upon to do so (and practice makes clear that in Yoo’s mind that is never), and otherwise they follow the orders they are given. There is no role for the exercise of independent professional judgment. The JAG disagreement with the Yoo torture doctrine (Yoo’s doctrine can be reduced to the core proposition that, as Richard Nixon said, “if the president does it, then, that means it’s legal”) is simply JAGs substituting their “policy choices” for the president’s, according to the Berkeley professor.

Yoo has embraced the full-blown Schmittian doctrine of legal indeterminacy, and he has taken a typically crude version of it. In Schmitt’s mind, one of the essential weakness of the liberal democratic system was its reliance upon a legal paradigm in which there was no proposition so clear that it could not be argued one way or another. This tended to an instability which could only be countered by a recrafting of the legal superstructure. What was needed was a system in which the Leader had the ultimate say as to what the law was, and all judges, prosecutors and government lawyers were bound to his thinking. Yoo has crafted a whole series of memoranda in which he sails perilously close to the Schmittian model. He does this wearing the livry of King George. It’s going to be interesting to see how Yoo rethinks all of this after the Clinton Restoration occurs, if it does.

Of course, the strength of America as a nation is built on a tradition of rule of law, not of men. That system has, it is true, always included fair grounds to argue and move legal propositions a bit in one direction and then in the other. However, it has also featured a series of ironclad, fundamental propositions which were—before the arrival of the current wrecking crew—beyond the limits of polite conversation. The prohibition on torture, for instance. Or the notion that the president was also accountable under the law. “Lawfare” was used as a tool in a legal demolition derby, and consequently it has been irredeemably discredited. We don’t need a kinder, gentler sort of “lawfare” doctrine, we need to adhere more rigorously to the values that served the nation from its founding.

Dunlap ended his speech with an interesting appeal.

Today more than ever our nation needs the synergistic efforts of the entire government, both military and civilian, to succeed in today’s complex lawfare milieu. Let us work together – aggressively – to maximize mutual respect in the dialogue. This is a critical challenge for the entire national security law community.

It made me pause for a minute and think back to that remarkable trinity that was articulated by von Clausewitz. The primordial factors that underlie armed conflict, he said, affect in different ways people, the leadership and the military, but these factors can only be surmounted in a joining of the three elements. Dunlap is right perhaps to focus on the need to reshape government-military relations, but it is at this point very clear to outside observers that the abuse has been on the part of the government, which has failed to demonstrate an appropriate level of deference and respect to the career military and to its traditions. That is to say, people like General Dunlap have not been listened to as carefully as is their due.

But Dunlap misses the third prong, and it’s also vital. The Government has pursued a war of convenience and it has done so in a way that minimized the involvement, commitment and sacrifice of the people as a whole. This is not just a political issue, it is also a moral one, and the problems it opens are profound. The experience of the Vietnam War was traumatic, particularly for civilian-military relations. It does not appear likely to be repeated, but the example of that post-war era provides a vital cautionary tale. It reminds us of the need to avoid the demonization of the military when conflicts end on an unpleasant note, and to disdain politicians who would contenance such tools. And it points to the need for a military that upholds the nation’s essential shared values.

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