Advancing a Free Society

Lawfare, Common Article 3, and Military Commissions in Rumsfeld’s “Known and Unknown”

Thursday, February 10, 2011

Chapter 40 (“Law in a Time of War”) of Donald Rumsfeld’s new book, Known and Unknown, will be of special interest to Lawfare readers.  In it, Rumsfeld discusses his views on “lawfare,” the origins and travails of military commissions, and the Supreme Court detention and habeas cases.

Rumsfeld defines “lawfare” as the use of “international and domestic claims, regardless of their factual basis, to win public support to harass American officials – military and civilian – and to score ideological victories.”  He concludes that the “mere threat of lawsuits and legal charges effectively bullies American decision makers, alters their actions, intimidates our security forces, and limits our country’s ability to gather intelligence and defend the American people.”  Rumsfeld also discusses the background to this memorandum on the “Judicialization of International Politics,” that he sent to several top government officials in April 2003.

Continue reading Jack Goldsmith at Lawfare…