Thoughts on "Lawfare"

Jack Goldsmith
Wednesday, September 8, 2010, 9:24 PM
A friend bristled at the title of this blog, Lawfare, because he thinks that the first sense in which Ben uses the term in his initial post – the use of law as a weapon of war – has derogatory connotations for the rule of law in warfare.

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A friend bristled at the title of this blog, Lawfare, because he thinks that the first sense in which Ben uses the term in his initial post – the use of law as a weapon of war – has derogatory connotations for the rule of law in warfare.  My friend traces this derogatory connotation to the Bush’s administration’s early resistance to international law and judicial oversight, and a sentence in the Bush administration’s 2005 National Defense Strategy, which said that “[o]ur strength as a nation-state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.”
The legitimacy of this latter claim will be explored this weekend at a conference called LAWFARE! at the Case Western Reserve University School of Law.  The conference has outstanding speakers and will be webcast; it should be worth watching.  To my mind the most important speaker at the conference is General Charles Dunlap, the former Deputy Judge Advocate General of the United States Air Force who is now at the Center on Law, Ethics and National Security at Duke Law School.  General Dunlap is an amazing man for many reasons, not the least of which is that he is a serious intellectual who regularly published influential scholarly articles during his service in the Air Force on topics ranging from cybersecurity to civilian control of the military to legal ethics to targeting doctrine and more.  His most influential idea, however, is “lawfare.”  I don’t think he  was the first to coin the term but he certainly popularized it and was the first to analyze it seriously.
General Dunlap first used the term in a 2001 paper that came on the heels of the 1999 Kosovo campaign, in which both lawyers and public debates about the legality of the war figured prominently.  “Is lawfare turning warfare into unfair?,” he asked, and his basic answer was “Maybe.”   General Dunlap defined “lawfare” as the “use of law as a weapon of war,” which he described as “the newest feature of 21st century combat.”  The paper gave many examples of relatively weak U.S. adversaries using legal principles dishonestly and strategically to “handcuff the United States” in an effort to “exploit our values to defeat us.”  After cautioning against overreaction and insisting on the importance of adherence to the law of armed conflict, he concluded that “there is disturbing evidence 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.”  General Dunlap subsequently wrote many more essays about “lawfare,” and in part (I think) to rebut misinterpretations or misappropriations of his work, he expanded the definition of the term to mean “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.”
There is much to say about all of this, and we will explore the “lawfare” concept at length on this blog.  But for now I want to offer two examples in which lawfare in the “a weapon of war” sense captures an important reality that is in no way derogatory towards the rule of law.
First, there is a war of sorts going on over the content and applicability of the laws of war to terrorist activities.  It is a war in which battles take place across the ocean (the United States and Europe disagree, for example, whether there can be a war against terrorist groups, and whether terrorists can be detained without trial or be tried in military commissions); between proponents and opponents of the Goldstone Report; between the ICRC and government lawyers about the meaning and applicability of “direct participation in hostilities”; and among lawyers representing alleged terrorists, government lawyers, and judges in the D.C. Circuit.  All of the combatants in this "war" believe they are fighting on behalf of the international rule of law, properly understood, and all use legal argument strategically to achieve this end.
Second, it is natural, I think, to see contemporary U.S. counterinsurgency (COIN) operations as an attractive form of lawfare – especially those aspects that involve the construction of legal institutions as a tool to defeat insurgents.  The latest example is the brand new Rule of Law Field Force (ROLFF) in Afghanistan, commanded by the redoubtable General Mark Martins.  The basic idea of ROLFF is to revive governance and rule of law functions in the Pashtun south where the insurgency is strongest during the "hold" phase of COIN operations (i.e., just after an area has been cleared of insurgents).  General Martins, his soldiers, and their Afghan partners are literally fighting to bring ordinary Afghans criminal justice capacity, dispute resolution services, and anti-corruption institutions, all with the aim of promoting the legitimacy of the Afghan government and defeating the insurgency.  If that's not “using law as a weapon of war" I don't know what is.  (Having said that, I am not sure General Martins would agree with my characterization of his efforts as “lawfare,” but I hope to persuade him to write about ROLFF on this blog so that he can explain it to us himself.)

Jack Goldsmith is the Learned Hand Professor at Harvard Law School, co-founder of Lawfare, and a Senior Fellow at the Hoover Institution. Before coming to Harvard, Professor Goldsmith served as Assistant Attorney General, Office of Legal Counsel from 2003-2004, and Special Counsel to the Department of Defense from 2002-2003.

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