Advancing a Free Society

Mea Culpa: Lawfare

Friday, September 9, 2011

In the Fall of 2002, a month or so after I started work in the Defense Department General Counsel’s office, I had a chat with Rear Admiral Michael Lohr, who at the time was the Judge Advocate General of the Navy.  I had come to the Pentagon from the University of Chicago Law knowing very little about how the U.S. military worked. At some point in the conversation with Admiral Lohr I said that I was surprised about how law- and lawyer-heavy the Pentagon was.  I probably conveyed doubt, perhaps a lot, that this was a healthy development.  Admiral Lohr patiently explained that the Pentagon was a huge organization, that any such organization needed many rules to function well, that deviations from rule-governed behavior, especially during armed conflict, could have disastrous consequences for the military and the nation, and that lawyers were integral in ensuring that this did not happen.

That conversation was the beginning of my decade-long education about the complex but important role of law in the military and in the national security establishment more generally.  Over the course of the decade, I came to appreciate the wisdom in Lohr’s words.  I am still sensitive to the potential costs of so many lawyers in the military, including risk aversion, loss of initiative, and intrusion on the commander’s prerogative.  But I now better appreciate the benefits, and I think they outweigh the costs on balance.  One of many benefits is the enormous power that the military gains from the constraint of law and lawyers.  Soldiers kill and maim and destroy property and unsettle lives, and American soldiers do so with high-tech weapons that often give them enormous advantages over their adversaries. Adherence to law, and especially to the laws of war that define when and how military force can legitimately employed, is what justifies and excuses these otherwise-terrible acts, renders them moral, and enables a person of conscience and honor to undertake them.  Law compliance is more important than ever in an era where every military conflict plays out on the internet for all to see and criticize, and in which law is (as my colleague David Kennedy puts it) “a vocabulary for judgment” and “a mark of legitimacy.” Lawful action—and, just as important, the perception of lawful action—is more than a demand of honor or morality or something to abide to withstand legal scrutiny; it is a military imperative.  Some of the USG’s greatest defeats in its post-9/11 wars have related to non-compliance with law. As legality has moved to center stage as a military consideration, lawyers have necessarily moved with it in order to guide commanders and defend the legality of controversial war decisions to the public.

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