Guest Post: Tom Nachbar on COIN, Lawfare, and the Rule of Law

We are very pleased to present this guest post by Professor Tom Nachbar, who teaches antitrust, communications law, and constitutional law at the University of Virginia. Tom is also an Army Reserve judge advocate, and has worked on both detention policy and the role of legal institutions in counterinsurgency and stability operations. From 2007 to 2009, he was an editor of The Rule of Law Handbook: A Practitioners’ Guide, which is published by the Center for Law and Military Operations. The Rule of Law Handbook was created as a resource for deployed judge advocates working on rule of law projects, like those being undertaken by the Rule of Law Field Force-Afghanistan commanded by BG Mark Martins. This post was prompted by BG Martins’ posts on the meaning of “Lawfare” as a term (here, here, and here). As this semester has wound down, I’ve had the chance to lift my head up long enough to read BG Mark Martins’ recent (although ancient by Internet standards) posts on the term “Lawfare.” I particularly liked his contribution to the taxonomy of lawfare, since it’s a term without a settled meaning. (See, e.g., the Wikipedia entry on “lawfare,” which is about as authoritative as anything on Wikipedia (i.e. not very) but evokes a very different set of meanings.) BG Martins’ treatment of the topic, both theoretically informed and practically grounded in his experience at CJIATF-435, suggest many implications for the role of law and legal development, especially in the context of counterinsurgency (COIN). The editors of this blog have graciously offered me this forum to explore some of them. As a competition for legitimacy, an insurgency/counterinsurgency calls upon both sides to provide services to the people in a way that will foster legitimacy. Thus, both the government of Afghanistan and the Taliban seek to provide security in some form, and the party that does the better job of providing the form of security the people demand will gain legitimacy in the eyes of the people and thereby move toward their goal of winning the conflict. If that’s right, then a government conducting a counterinsurgency has a strategic incentive to not only provide services to the people that are better than those that the insurgents can provide, it has an incentive to provide those services in a way that the insurgents cannot hope to match. A major contributor to the asymmetric nature of COIN is that the government has, and has to protect, infrastructure while insurgents generally do not. While both the government and insurgents can provide “justice,” the government has a systematic advantage in using infrastructure and therefore has a systematic advantage in providing the type of justice that requires infrastructure. This is true even in places like Afghanistan, where not even the government has much infrastructure but as a relative matter has much more than the insurgents do. It is especially true when the government has external support from a country that can provide the resources to build infrastructure quickly. The availability of infrastructure can substantially affect the content of substantive law, especially when choosing among penalties. Beheading and dismemberment don’t require much infrastructure. Imprisonment, on the other hand, requires a huge, fixed, and heavily defended physical plant manned by large numbers of armed personnel who cannot rely on flight or stealth when faced by opposing forces. There is an even stronger relationship, though, between infrastructure and procedural law. Many changes to substantive law are unaffected by the availability of infrastructure, but virtually any procedural safeguard requires robust infrastructure to support it. A system that focuses on eliciting confessions (even voluntary ones) requires much less infrastructure than one that focuses on forensic evidence. It’s pretty hard to run a DNA lab from a cave in the White Mountains, and it’s just as hard for insurgents to operate a pre-trial detention facility (to keep the defendant in custody long enough to provide a robust set of pre-trial procedures) as it is for them to operate a prison. But procedure and substance are very different in other ways – ways that make procedure a more government-friendly “tool” in COIN than substantive law might be, especially when considering the role of an external supporter to the government. The population is unlikely to have as strongly held a set of prior normative commitments to one view of procedure over another. My three-year-old can tell me whether it’s OK to take someone else’s property or hurt them, but he’s a little sketchy on the need for pre-trial evidentiary hearings. Consequently, procedural innovations by external interveners are less likely to result in popular resistance than are substantive innovations. Moreover, many failed states will have populations with disparate ethnic and cultural traditions that cannot agree on the appropriate substantive law but nevertheless can agree on abstract concepts like procedure. This is essentially the same set of concerns reflected in the basic formalist/substantive divide in rule of law development approaches. For those who favor substantive conceptions, procedure-heavy criminal law is happily consistent with western legal values; most western nations who provide external support to a counterinsurgency are going to want to push rich procedural protections as part of their rule of law program. But, even aside from the western normative commitment to procedure, counterinsurgents should have a commitment to promoting infrastructure-intensive justice systems simply because insurgents probably can’t provide them. That incentive has at least two consequences for COIN practice: First, legal reform undertaken as part of COIN should likely emphasize changing the procedure rather than the substance of the host nation’s laws, a claim that I think is borne out by U.S. experience in the current conflicts. Some forms of procedure (impartial adjudicators; hearings) can call upon deeply held notions of fairness and so can boost legitimacy in their own right, but many forms of procedure can simultaneously capitalize on the government’s “infrastructure advantage” in COIN. In this way, procedural changes provide more “bang for the buck,” improving both the relative legitimacy and the strategic standing of the government in the COIN fight. That being said, of course, it is important to choose forms of procedure that require infrastructure that can be sustained over the long run, else the government will eventually fail to deliver on its own procedural vision of justice, with devastating results to the government’s legitimacy. Second, information operations should be designed to educate the population as to the importance of procedural rights in legal systems, especially those that require intensive infrastructure to support them. Advertising things like the role of an independent judiciary can shift the intellectual terrain in a way that disadvantages insurgents, and can do so without implicating (and potentially treading upon) the population’s underlying moral commitments regarding substantive law. As I mentioned above, I think the commitment to procedure over substance is reflected in the positive experiences that coalition forces have had in their “rule of law” efforts in Iraq and more recently Afghanistan. Current efforts at legal development in Afghanistan cannot help but be influenced by those experiences. There is some question, though, what implications the United States’ recent campaigns of “lawfare” have for law and the justice sector as it develops in both those countries.