Legal-ism Mission Creep

On the morning of March 18, 2019, a U.S. Air Force F-15E jet dropped a 500-pound bomb on a crowd of women and children huddled against the bank of the Euphrates River near the Syrian town of Baghuz, followed by two 2,000-pound bombs on the survivors. All told, about 70 people died in the bombing, a majority of them civilians. A special operations unit had called in the strike, claiming self-defense under the law of armed conflict, which permitted bypassing the deliberative targeting review designed to limit civilian harm. By late 2018, more than 70 percent of the airstrikes that unit called in claimed self-defense. An Air Force lawyer who watched the drone feed of the bombing flagged the Baghuz strike as a possible war crime and later questioned whether the unit’s claim of self-defense had “intentionally and systematically circumvented the deliberate strike process.” In response, the unit that had called in the strike undertook a self-assessment, concluding that the bombing was lawful, that the commander had acted within the rules of engagement, and that no further investigation or discipline was warranted.

This episode illustrates the central concept in Doyle Hodges’s “The Rise of US Military Legalism: A New Theory of Military Professionalism.” With the term “military legalism” Hodges seeks to identify a shift in the thinking of U.S. military officers. Hodges is the dean of academics at the Naval War College and a 25-year Navy veteran. While serving as a speechwriter for Adm. James Ellis during the 1999 Kosovo air campaign, Hodges saw that commanders’ military judgments were insufficient to approve strikes without an accompanying legal review. He uses the term “military legalism” to capture the growing influence of legal considerations on officers’ own military judgments, what he views as the increasing melding of the “military officer with that of the lawyer.”

In Hodges’s view, commanders now justify the use of force more through a legalistic frame than through the prism of professional military judgment, chivalry, and honor that prevailed 50 years ago. Under the traditional model, Hodges contends, a commander weighing the Baghuz strikes would have asked whether the strikes, even if justified under self-defense, were the right thing to do, given the prospect of civilian casualties. Now, however, commanders justify their decisions by formally interpreting the rules, asking whether the use of force fits into a legal category authorizing the strike. Hodges argues that this shift is not a peripheral phenomenon but a pervasive feature of the modern American military, surfacing in wars big and small and shaping decision-making.

What Is Military Legalism?

Hodges defines military legalism as “the practice of privileging legal reasoning rather than traditional professional judgment in justifying military decisions regarding the use of force.” The definition is purposely narrow. His argument is not that the law of armed conflict has grown more complex (although, arguably, it has) or that commanders are inundated with too many rules limiting the use of force (which some say they are). His subject is the thought process that guides the way commanders decide how and when to use force. The traditional military professional, Hodges argues, would consider what military action to take through the lens of what is necessary to achieve the objective, whether they are accomplishing their goal humanely, and whether they are doing so honorably. By contrast, the commander with a military legalist mindset might focus on the legal rules and policies constraining them and then train their answer on what the law allows them to do.

Borrowing Samuel Huntington’s characterization of commanders as “managers of violence,” Hodges describes military professionals as those with expertise in weapons systems and battlefield engagement. He contends that they are entitled to autonomy within this sphere and are obligated to stay out of everything else, including the political and policy matters reserved for civilian principals. As Hodges explains, the civil-military dynamic between policymakers and military officers is a principal-agent relationship in which the former sets the political agenda and the latter executes the corresponding military mission. The two remain interconnected, but both halves of the relationship have their domains, and military ethics requires warfighters to remain committed to obeying civilian control. Yet as the number of constraints on the use of force from policymakers mounts, military autonomy diminishes. Military legalism is thus the path of least resistance for a profession that values both autonomy and obedience to civilian control.

Two hallmarks of military legalism are rule formalism and advocacy. Rule formalism is the careful parsing of the text of relevant rules—be it from the law of armed conflict or the rules of engagement—to reach results that may contradict the rule’s intent, what military officers have long derided as the work of a “seat lawyer” or “barracks lawyer.” Advocacy is harder to identify because it requires recognizing a transformation in role rather than a discrete act. Lawyers are trained and expected to advocate zealously for their clients. When military officers, who are not lawyers, exhibit these same qualities, they have crossed into the reasoning of a different profession, one that is contrary to the traditional notion of military professionalism where officers offer candid, balanced advice based on their expertise and nothing more.

Hodges argues that military legalism contorts the military professional’s decision-making, setting the commander’s focus on the bare minimum the law requires rather than on the military expertise and professional ethics that might guide a decision that would be both more effective and more ethical than the legal floor. He hearkens back to his experience working with Adm. A. T. Church in 2004 on an “inquiry into all interrogation techniques used by the Department of Defense” in the wake of the Abu Ghraib scandal, when policymakers and lawyers at the highest levels of government had carefully reviewed the orders authorizing enhanced interrogation techniques and determined them to be lawful, creating a tacit top-down permission structure with the capacity to influence military culture writ large. Hodges later observes that the abuses of Abu Ghraib were “a distorted reflection of a legalistic interpretation of the law that allowed the use of nudity, dogs, and stress positions (among other techniques) by different soldiers on different detainees with safeguards that had been carefully and precisely parsed.” Orders may be lawful even when they are immoral, which in this reviewer’s view is where traditional military professionalism rises above military legalism.

Hodges’s Theory

Before developing his causal account in Chapter 3, Hodges asks in Chapter 2 whether military legalism is widespread and how to measure its presence. He traces the institutional growth of each service’s Judge Advocate General’s (JAG) Corps—the branch that houses military attorneys—in terms of both absolute numbers and ratio to active-duty service members. He also examines qualitative changes in the types of legal work JAGs do now as compared to several decades ago. Hodges shows that JAGs are more involved in operational law matters than ever before. He traces this enhanced role in operational counseling to the 1983 invasion of Grenada, which convinced the Army JAG Corps that there was a need for dedicated operational law support. That helped lead to the founding of the Center for Law and Military Operations in 1988, a body within the Army’s Judge Advocate General’s School in Charlottesville, Virginia, created to capture and institutionalize the legal lessons of military operations.

But even Hodges concedes that much of this evidence is not definitive as to military legalism’s ubiquity. He measures the existence of military legalism from JAG numbers and ratios, workload composition, rising publication in operational law by both lawyers and line officers, and the law’s growing influence in professional military education. Still, the quantitative core leans heavily on a 2007 Navy workload survey that is nearly two decades old, examined only Navy JAGs at a moment during the so-called global war on terror, and offered no comparable Army or Air Force data against which to test the trend.

Chapter 3 offers a theoretical account of how military legalism seeped into the military culture over time. Hodges argues that after World War II, policymakers who feared nuclear war constrained how commanders deployed force with laws and regulations to constrain how military commanders deployed force, departing from the latitude officers had enjoyed. Those constraints took greater legal and normative shape after My Lai. When the Cold War ended, the United States became the world’s unipolar hegemon with military capabilities beyond any of its adversaries, resulting in increased international and domestic scrutiny when the U.S. decided to deploy force.

Hodges uses the 2003 invasion of Iraq to show how scrutiny intensified when the United States did not secure a United Nations Security Council resolution authorizing the invasion and ultimately never found weapons of mass destruction. He pays particular attention to adversary behavior, and how insurgent and asymmetric forces have learned to exploit American commitments to civilian protection by fighting among civilians and provoking responses designed more to generate outrage and challenge the legitimacy of U.S. action rather than achieve a military advantage.

Hodges argues that although the legitimacy of military action is judged differently by domestic and international audiences, the views of both audiences contribute to the influence of military legalism. Domestic audiences tend to assess legitimacy through the lens of the rightness of the cause and prove relatively forgiving of how their service members fight. International audiences attend more closely to the manner in which military operations are conducted and scrutinize U.S. conduct more strictly when the underlying cause is contested.

Regardless of the audience, the military invariably becomes the institution most closely associated with any armed conflict, even if it does not control the policy choices that led to the conflict. Commanders engage in military legalism because framing their decisions in terms of what the law permits, rather than what professional judgment alone would dictate, helps keep the military in positive esteem with the American public (even if they cannot control the decision to go to war).

Hodges confines his study to the U.S. military and offers only brief speculation that military legalism may manifest itself in most armed forces that seek to maintain domestic and international legitimacy when taking military action. If the phenomenon is in part a consequence of an institutional architecture rebuilt on legalism, touted by policymakers, and institutionally reinforced, one would expect to find it across other militaries as well.

But as Hodges’s own history shows, the postwar order did not merely invite scrutiny; it changed the penalty for getting war wrong. Nuremberg and the tribunals that followed established that individual officers could be held criminally responsible for battlefield conduct, even when following a superior’s orders, and the 1949 Geneva Conventions narrowed the claims of military necessity a commander could invoke. My Lai and the 1974 Department of Defense Law of War Program were watershed events, but they were also catalysts that helped set the stage for military legalism, whose foundations had been laid decades earlier. Whether or not military legalism is structurally inevitable, the U.S. variant took root because the United States had bargained for the very international order that allowed it to develop.

Hodges brings military legalism into modern focus with two case studies: the Marine intervention in Beirut in the early 1980s and the United States’ invasion and occupation of Iraq in 2003 to 2004. The Beirut case is analytically important because no lawyers were deployed with the Marines on the ground, yet operational commanders were reticent to deploy force due to sensitivities about potential civilian casualties, and justified that restraint by formally parsing the self-defense rules, which Hodges treats as suggestive evidence that military legalism had been internalized as a feature of how commanders themselves reason, though he acknowledges the restraint could equally have reflected traditional military professionalism’s emphasis on honor and chivalry. The Iraq case figures as the better example. Hodges shows how creative interpretations of the self-defense exception that dispensed with a full-fledged targeting analysis were already at work, the same style of exception that was invoked at Baghuz 15 years later. In the Iraq War, he demonstrates, the military had translated its professionalism into a series of legal “if, then” statements that preserved operational autonomy even while formally satisfying those constraints.

In his final chapter, Hodges argues that military legalism is inherently neither good nor bad. While the book’s case studies often illustrate military legalism’s costs, Hodges resists the temptation to characterize the phenomenon as harmful, instead conditioning his answer on whether legal reasoning complements or supplants traditional professional military ethics. He points to the 2006 counterinsurgency field manual, whose drafting process convened human rights organizations, journalists, lawyers, and academics alongside military and counterinsurgency experts, as an example of military professionalism and legal reasoning complementing each other instead of one eclipsing the other. But in other instances, such as the enhanced interrogation program, legalistic interpretation, in Hodges’s view, allowed conduct that traditional professional military ethics would have condemned.

Hodges’s larger concern is the degradation of the norms governing civil-military relations, a relationship built on unwritten expectations rather than formal rules. Without these norms, Hodges suggests, military officers could fall prey to becoming rule-following technocrats who are more concerned with what the rules allow than with doing what is right, or, conversely, exploiting the rules in service of their own parochial ends while appearing compliant. He therefore recommends that the military acknowledge military legalism, because doing so will at least produce a more accurate understanding of the relationship between formal rule constraints and professional military ethics.

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Military legalism captures a real shift in the U.S. military’s decision-making culture, and Hodges’s book deserves to be read and argued with on its own terms.

The mission creep of legal thinking that has given rise to military legalism, at least in this reviewer’s eyes, almost feels foregone in retrospect. The Department of Defense Law of War Manual is over 1,000 pages long, and even that does not capture the entire panoply of law applying to armed conflicts. In a litigious society with near-instant communications, one could expect that the military, an institution that is responsible for death and destruction, would look to legalities to protect itself from shouldering the burden of legitimizing the conflicts in which it is engaged.

Regardless, Hodges’s thesis rings true, particularly to someone who advised commanders on the use of force in Operation Iraqi Freedom and has seen the legalistic reflex Hodges describes extend many times to issues well beyond the use of force. Readers will decide whether they agree with Hodges and whether military legalism is good or bad. For military professionals, civil-military relations scholars, and informed readers who have watched the phenomenon from outside the institution, “The Rise of US Military Legalism” is less a verdict than an invitation to a conversation the profession needs to have. The book is most powerful when read in that spirit.