Balkinization  

Monday, July 11, 2011

The Meanings of "Lawfare"

Mary L. Dudziak

One characteristic of post-9/11 American legal thought has been the prominence of the idea of “lawfare.”  A new blog is called simply Lawfare, and at the National Security Law Institute I attended this summer, one of our sessions was on Lawfare.  Lawfare is thought to be of increasing importance, but it seems increasingly clear that the term itself means different things in different circles, and apparently sometimes different things in the same circle.  What follows are various takes on lawfare from legal scholars, and then a military perspective.  In the end, I think we’re left with muddiness on the issue of whether there is a normative component to lawfare, and if so whether that normative component is inherently negative.

The slipperiness of the term seems apparent in Benjamin Kleinerman’s smart review on Lawfare this weekend of Eric A. Posner and Adrian Vermeule’s new book The Executive Unbound: After the Madisonian Republic (which takes the authors to task for rejecting a Madisonian vision of government without paying sufficient attention to Madison’s own thoughts on the topic).  To set the review in the context of the Lawfare blog, Kleinerman begins by invoking what he suggests is one of lawfare’s meanings.  He notes in part that the concept of lawfare refers to the idea that “law has become a potent weapon in the modern national security state-so much so that paying attention to the law has become an essential component of national security itself.”  This idea is prevalent in discussions of lawfare.  But Kleinerman precedes this with the idea that “the term ‘lawfare’ refers to the ways in which the national security establishment needs to worry about the aggressive, ‘war-like,’ use of the law to punish it for past actions.”

For Kleinerman, it was in part the likelihood of legal second-guessing that “led the Bush administration to seek a legal doctrine of executive power that would permit the wide-ranging discretion it thought necessary to conduct the ‘war on terror.’  The Bush administration sought to legalize what I have argued elsewhere is rightly thought of as extra-legal discretion because the world of ‘lawfare’ required a legal response to the inevitable legal challenge.”

In this treatment, law is a negative presence because the threat of legal sanctions calls for a legal response, and this constrains effective government action.
Lawfare in this sense is a negative force, pushing the executive to make decisions within a legal frame when non-legal considerations would render a better judgment.

Lawfare is also a negative presence, although in a different way, in the work of David Kennedy.  In the compelling closing of his book Of War and Law, he argues that the role of law in decisions about war has displaced judgment itself, depriving decisions about warfare of their moral weightiness, and undermining the vitality of a politics of war.  “The most unsettling aspect of war today,” he writes,
is the difficulty of locating a moment of responsible political freedom in the whole process by which war is conceived, waged, and remembered.  Instead, we find humanitarians, military professionals, and statesmen speaking...a common vocabulary of justification and excuse.  To regain the experience of free political decision, we will need to awaken in all those who speak the language of war the human experience of deciding, exercising discretion, and being responsible for the results an unpredictable world serves up....
For all of us, recapturing a politics of war would mean feeling the weight and the lightness of killing or allowing to live....As men and women, our military, political, and legal experts are, in fact, free – free from the comfortable ethical and pragmatic analytics of expertise, but not from responsibility for the havoc they unleash.
Kennedy and Kleinerman both see law as a negative presence, but Kennedy’s critique is broader. In his work, legal ideas create a frame for decision-making, enabling decision-makers to feel compelled by law in a way that distances them from the immediacy and effect of their judgment, from feeling “the weight and the lightness of killing or allowing to live.”

Both Kleinerman’s and Kennedy’s conceptions can be found in Jack Goldsmith’s account of law in the Bush Administration, making The Terror Presidency a more ambiguous account than I had previously thought.

Goldsmith writes that, faced with concerns about the possibility of another terrorist attack, and fear of being blamed for not avoiding it, the president could only justify the failure to take protective action if he had a good reason.  “A lawyer’s advice that a policy or action would violate the law, especially a criminal law, was a pretty good excuse.”  The White House was “haunted” by 9/11, and “obsessed with preventing a recurrence of the expected harsh blame after the next attack.”  Because of this, “the question, ‘What should we do?’ ...often collapsed into the question ‘What can we lawfully do?’...It is why there was so much pressure to act to the edges of the law.”

Reading this in conjunction with Kennedy, we can see Goldsmith describing lawfare as a decisional frame, pushing out other kinds of reasoning.

Goldsmith adds that Bush’s lawyers “viewed every encounter outside the innermost core of most trusted advisors as a zero-sum game that if they didn’t win they would necessarily lose.”  In this context, arguments about law were volleys in a struggle for power; they were “strategic lawfare.”  This is more consistent with Kleinerman.  The negative dimension of law is not exactly that it blocks out other reasoning, but that it becomes no more than a weapon used by each side in battles, domestic and international.  Legal challenges require a legal defense, deflecting attention from other dimensions of executive judgment.

I was thinking about Kennedy on lawfare when I attended Charles Dunlap’s illuminating discussion of the topic at the National Security Law Institute this summer at the University of Virginia Law School.                

Dunlap’s definition of lawfare is more direct: it is “the use of law as a weapon of war,” or the use of law “to achieve a military objective.”

Law’s impact is not inherently negative for Dunlap.  Instead he suggests that law can be used for good or for ill.  At the Institute and in this influential essay, he describes at length the strategic deployment of law – by U.S. forces and their adversaries – and the need for a lawfare defense, a way to anticipate and undermine the strategic use of law by an adversary.

But what about Kennedy’s claim that law has occupied the terrain of military judgment, driving out its moral weightiness, I asked him.  His response was interesting – that bringing law in to discussions of warfare, in his experience, was the way military leaders brought engagement with norms in, rather than excluding them.  In opposition to Kennedy’s rendering, for Dunlap it is law that brings considerations of humanity into discussions of military strategy, rather than blocking them out.

So we seem to have a mix of ideas about lawfare.  Somehow I find this tension more satisfying than clarity might be.  But still, I looked to the Lawfare blog for its own definition.  Rather than nail down the topic, the blog, perhaps appropriately, leaves us with nebulosity, and adds another wrinkle: lawfare as our own internal battles:
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....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.
Comments are open for your definitions.

Update:   In response to some questions below, the Army's JAG College is in Charlottesville, VA.  Their 2010 Operational Law Handbook  is online.  The Navy has the Naval Justice School, and there are other sites for training JAG Corps members.

Comments:

To me the term implies that law is being used to obtain the objectives of war. The connotation is that those who would like to strike at the US militarily, but cannot do so effectively, will instead use legal processes to achieve their ends.

This is the way I understood the term when I first heard it- perhaps it has taken on a different connotation since.
 

"Lawfare," however defined, seems to accommodate the military/industrial complex which impacts our economy and thus our national security. Take a look at George W. Bush's "National Security Strategy" October 2002 and consider how it might indirectly define "lawfare," at least back then.
 

Lawfare is a subset of asymmetric warfare using normally civilian systems in order to limit or defeat a nation in a war. Thus, a good definition of lawfare is the use of the legal system to limit or defeat a nation in a war.

Here are some of the more common features of lawfare:

In a civilian criminal justice system, it is said to be better to release ten guilty men than to convict one innocent one. In a war, this returns enemy combatants to the battlefield.

In a civilian criminal justice system, a defendant has a right to silence. In a war, this defeats intelligence gathering.

Better yet, criminal defendants have a right to due process under the law before being imprisoned or executed. If enemy combatants posing as civilians are granted such protections, you can no longer wage war against them even though they are waging war against you.

Under the 4th Amendment, civilians have a limited right to privacy. In a war, the enemy poses as civilians to protect their communications from intelligence gathering.

Another common technique is to use the laws of war against those countries which observe them.

A captured al Qaeda manual teaches lawfare to its members by telling them to demand an attorney and to falsely accuse the capturing military of torture.

Terrorists and their sympathizers routinely attack common techniques of conventional warfare as disproportionate violations of the laws of war in order to limit effective military action.

As a result, our military and intelligence agencies have battalions of attorneys with which commanders routinely consult and often defer in making military decisions.
 

Are there facts to back up this conclusion:

"As a result, our military and intelligence agencies have battalions of attorneys with which commanders routinely consult and often defer in making military decisions."

Some military decisions require prompt action. How were the members of these battalions of attorneys trained in "lawfare"? Do any law schools offer courses in "lawfare"? What texts do these attorneys rely upon? Life and death can depend upon the advice of these attorneys. Query whether there are paper trails of such advice? Are such lawyers protected from malpractice? And when they get back in civilian life, do these attorneys suffer from stress from the advice they rendered? And what about military commanders whose actions are questioned - can they rely upon advice of counsel to avoid court martial?
 

Shag:

Those are a series of very good questions. Serious discussion of lawfare among legal academicians is a fairly recent phenomenon. During the heat of debate over the Bush war policies, progressives tended to reject the very existence of lawfare. I have noticed a change now that a progressive Dem administration is dealing with these issues.

As to the proliferation of lawyers in United States war fighting, Jack Goldsmith spends some time on this issue in his book The Terror Presidency. See Chapter 3, starting at page 90 in the hardback copy.
 

I imagine a Nelson Eddy singing a stirring:

"STOUT-HEARTED LAWYERS"

sending them into battle. Perhaps one of the benefits may be to have their military service work to pay off their student loans. But might there be a Shakespearian motivation?
 

Shag:

I assure you that the songs of attorneys from OLC and State to JAGC concerning the rights of enemy combatants would fundamentally change if they did a tour in an infantry company in Helmund province in Afghanistan and had to live under the rules they like to set for others from a safe office in D.C.
 

I think "lawfare" is nothing but spin.

In a society with a rule of law, sometimes there will be court challenges to things authorities want to do for one or another military reason. In that sense, the free speech challenges by draft resisters in World War I were "lawfare". The challenges by Japanese internees in World War II were "lawfare". O'Brien's draft card burning suit in the Vietnam War was "lawfare". Youngstown Sheet and Tube's challenge to Truman's steel seizure was "lawfare".

But I suspect most of the people who use the term "lawfare" would weasel out of using that term in those cases.

So in that case, the definition of "lawfare" seems to be nothing more than "someone using legal process to challenge a military decision that I favor". And that, of course, is not a very useful term.
 

Dilan:

Think SLAPP harassment suits suits used for military purposes. This is hardly a new concept for Americans.
 

I second Dilan and would only add that we can add other cases that would go back to the very beginning of our constitutional history.

We are a nation of laws. Making the military higher than the civil power was an "abuse" in the Declaration of Independence. Part of the civil power is law and lawsuits.
 

Lawfare:
"The Israeli parliament has passed a law in effect banning citizens from calling for academic, consumer or cultural boycotts of Israel in a move denounced by its opponents as anti-democratic.

The "'Law for Prevention of Damage to the State of Israel through Boycott" won a majority of 47 to 38, despite strong opposition and an attempt to filibuster the six-hour debate. Prime minister Binyamin Netanyahu did not take part in the vote."

Israel is worried about the UN vote.

WSJ "Israeli officials want a public commitment from Washington to protect the Saudi regime should it come under threat.."

US SecDef Gates meets King Abdullah:

SEC. GATES: We had a very good meeting. We met for about an hour and a half, one-on-one. It was an extremely cordial warm meeting. I think the relationship is in a good place. We talked about developments all over the region. We obviously talked about Iran....

Q. Did you talk about the Saudi troops in Bahrain? Did you raise that as an issue?

SEC. GATES: No.
---
Let's talk about democracy.

Lawfare is a term used by Israel and its defenders as an accusation, against those who challenge Israel by nonviolent means. It's a term the White Citizens Council would have used against King. It's a term England would have used against Gandhi.
 

I should add something else since my comment concerned semantics more than books.

if Posner's book is as it's being described, it's not an argument from "realism" it's an argument from fascism.

That should be clear.

The unhappy byproduct on the academic model of collaborative reason: if we all agree, it must be true and good. But it's not good when defense attorneys collaborate with prosecutors, so why should it be good the branches of government are joined? Why is unity under demagoguery a good?

There are rules mandating adversarialism in law; there are no rules mandating the same for branches of government. Maybe there should be.

Democracy is the rule of form, not content. It's relativism, but so what? Relativism, or Plato and the Pope, the choice shouldn't be that hard to make.

There is no more truth to dictatorship than there is to democracy, but democracy if we choose it, is founded in mandated formalized conflict. Jack Balkin may want to consecrate the proceedings with the language of redemption, but that's unnecessary. Or rather it's no more necessary for the United States than it is for the World Series or the World Cup. There is no truth in sport, yet people dedicate their lives to it.

The politics of truth is Fascism, always. If you don't want that, then shut up and play ball. And if you think what I've written manifests perversity, read the post and the review of Posner's fascist book.

Pity the poor people of Bahrain. They have been shot, beaten, tear-gassed – and patronised. On 7 March, at the height of the pro-democracy protests in the tiny Gulf island kingdom, a crowd gathered outside the US embassy in Manama, the capital, carrying signs that read "Stop supporting dictators" and "Give me liberty or give me death". A US embassy official emerged from the building with a box of doughnuts for the protesters, prompting a cleric in the crowd to remark: "These sweets are a good gesture, but we hope it is translated into practical actions."

It hasn't been. Syria was subjected to sanctions and Libya to air strikes; Bahrain, however, was rewarded with visits from the Pentagon's two most senior officials – the chairman of the joint chiefs of staff, Mike Mullen, and the then defence secretary, Robert Gates. Disgracefully, at the same time as peaceful protesters were being rounded up and imprisoned, both men offered full-throated endorsements of King Hamad Bin Isa al-Khalifa's brutal regime."


Let's remember what's at stake.
 

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