Dockets of War

February 23, 2011 Topic: International LawGlobal GovernanceSecurity Regions: United States

Dockets of War

Mini Teaser: WikiLeaks. Guantánamo Bay. Public-pressure campaigns by angry NGOs. No flavor of lawfare can stand contest against America’s unmatched global power.

by Author(s): Eric A. Posner

SMART BOMBS cannot take out WikiLeaks. Stealth bombers cannot eliminate the bad odor wafting around Guantánamo Bay. Unmanned drones armed with Hellfire missiles cannot stop foreign countries and NGOs from putting America “on trial” for targeted killings. Lawfare is taking over international relations—or so many people believe. The most awesome military power in the world blunders about like a helpless giant in a dark room, swarmed by hostile forces that it cannot see and cannot attack.

First there’s WikiLeaks’ Julian Assange, who dealt U.S. diplomacy a serious blow when he posted thousands of cables disclosed to him by an American soldier named Bradley Manning. Yet the U.S. government is probably helpless to do anything about him. Justice Department officials investigating the possibility that Assange violated the Espionage Act worry that the law runs afoul of the First Amendment. Leakers like Manning can be prosecuted, but because few commit Manning’s blunder of bragging about their exploits, they are rarely caught. If the government could prosecute disseminators, the epidemic of leaking could be mitigated. But that’s a near impossibility.

And let us not forget Gitmo. The current administration drafted an executive order governing the detention of suspected members of al-Qaeda at Guantánamo Bay in the hopes of shutting down the facility by trying or releasing the detainees held there. This goal was shattered—on the rock of legal and political reality. Under the U.S. Constitution, evidence obtained by coercive interrogation cannot be used at trial. Thus, trials of at least some of the detainees would end in acquittals even though the U.S. government knows full well that those prisoners will restart their terrorism work as soon as they are freed. The Bush administration tried to avoid constitutional difficulties by relying on military commissions, but this strategy too failed. What America is left with is indefinite detention. And this is a political mess; according to some commentators, it is also constitutionally questionable.

In both cases, the legal constraint on national-security policies of the U.S. government is internal—it flows from the Constitution. But there are external legal constraints as well. Policy makers, including high-ranking military officials, have raised the alarm about the impact of international and foreign law on the American use of force. Many of America’s allies (and many influential NGOs) support treaties that set significant limits on military action, often with vague phrasing that—in theory—leaves U.S. policy makers and soldiers vulnerable to prosecution by international courts and the national courts of foreign countries.

In 2001, Colonel Charles Dunlap (now major general, retired) of the U.S. Air Force famously described these legal constraints as “lawfare,” which he defined as “the use of law as a weapon of war” and “the most recent feature of 21st century combat.”1 By this reading, lawfare is both the efforts of enemy nations, terrorist organizations and their supporters to counter American military superiority by threatening U.S. policy makers and soldiers with prosecution and civil litigation, and the pressure brought to bear by NGOs who take to the media marketplace insisting that international law places sharp limits on military action. In his 2007 memoir, former–Bush administration Justice Department official Jack Goldsmith disclosed that the risks posed by lawfare alarmed officials at the highest levels, including then–Secretary of Defense Donald Rumsfeld.2

The U.S. government has already undertaken defensive measures. Targeting decisions by the U.S. Air Force are subject to legal scrutiny before planes leave the ground; in fact, a lawyer can tell a commander that attacking a particular target is illegal because doing so risks excessive civilian casualties. The U.S. government has also expended significant diplomatic resources opposing treaties and international organizations that may ensnare American military operations. At this point, there is a palpable sense that lawfare may well end up compelling U.S. armed forces to curtail operations of significant strategic importance.

But the very idea of lawfare is perplexing. How can “law”—a set of rules applied by unarmed institutions like courts—stand up to bombs and missiles? The answer is that it cannot. Laws do not enforce themselves. If a weak country cannot coerce a more powerful country through force of arms, then it cannot coerce the other country with law either. The lawfare threat is greatly exaggerated.

THE SUPPOSED external constraints are plentiful. Laws of armed conflict consist of a set of treaties (most famously, the Geneva Conventions) and customary norms that govern the use of force by the military, the most contentious of which is the requirement that civilian casualties not be “disproportionate” to the military target that is destroyed. Everyone understands that an army should not level a whole city in order to eliminate a handful of hidden soldiers, but no one agrees about whether an army can, for example, destroy an apartment building or even a city block in order to get rid of a few enemy combatants holed up in one apartment.

The U.S. military typically uses precision-guided munitions to minimize civilian casualties, but it has received intense criticism nonetheless. When the air force bombed from high altitude to minimize the risk to pilots during the 1999 war with Serbia, this practice also decreased accuracy, so more civilians were killed than would have been if the planes had flown closer to the ground. U.S. forces also bombed dual-use infrastructure such as the building that housed the Serbian state TV station. NGOs were in an uproar.

This controversy is often cited as an example of lawfare. This is unfortunate. The pressure against the United States was brought by a set of organizations—including Human Rights Watch and Amnesty International—not by America’s enemies. Indeed, the threat has been blown out of such proportion that there were even fears that NGOs and terrorists had forged a kind of alliance, united by their joint interest in curbing American power. All hysteria aside, even if this NGO-led effort is properly understood as “lawfare,” it does not suggest anything distinctive about the practice that should concern us.

Countries at war have always had to contend with arguments that they act with unnecessary brutality. The German “rape of Belgium” was a propaganda coup for the British and French during World War I. Teutonic depredations also fueled the propaganda battles of World War II, but the Allies had to address similar charges after they incinerated German and Japanese cities. These indictments reflected moral, not legal, concerns. If a country can achieve legitimate military objectives without needless slaughter, then it should do so. This idea is embodied in the norm of proportionality, but the norm itself has never provided the basis for legal charges against individuals—it is simply too vague to supply a rule of decision in a court of law.

MILITARY FORCES will always be criticized; there is nothing new, or wrong, about that. What is new, and what has been confused with lawfare, is the explosive rise of the NGO. In the old days, only governments of warring countries would argue that belligerents violated international law. Today, NGOs have inserted themselves into the debate, garnering press attention that influences the public, which in turn pressures governments. Many of these organizations have put mistreatment at Guantánamo Bay on the public agenda, loudly insisting that the United States has broken international law. By placing moral arguments against wartime brutality in legal terms (on the basis of aggressive interpretations of international law), they’ve managed to put the American government on the defensive. NGOs have credibility because they are not involved in the conflicts on which they report, and this in turn gives them unusual influence.

And the power of NGOs to affect the debate is only increased by the latest visual props at their disposal. What used to be called the “CNN effect” and now is perhaps better dubbed the “WikiLeaks effect”—the widespread availability of photographs and videos depicting the brutalities of war—stirs up popular sentiment against U.S. militarism, both inside the United States and abroad. These images have proved immensely valuable for critics of the United States and for America’s enemies.

But despite all the agitation about NGOs, this simply is not lawfare. The United States government cannot meet these challenges by bowing to international legal norms that supposedly limit military action. NGOs advance interpretations of the law, but their interpretations do not have any legal authority, nor can they make, change or enforce the law. WikiLeaks and other media do not demand legal compliance. All they do is push toward transparency and the curtailment of military operations that generate grisly images. In the end, these are political, public-relations and technological threats, not legal ones.

INDEED, THE U.S. government should not cower in the face of imaginary judicial foes—whether they are borne from the pressures of NGOs or nation-states. More and more cases are brought in international and foreign courts against government officials accused of committing international crimes. Rumsfeld worried that courts in foreign countries—Spain, say, or Belgium, or Germany, or the UK—would claim jurisdiction over Bush administration officials who had authorized torture, whether in the United States or abroad. Americans as diverse as George H. W. Bush, Colin Powell, Henry Kissinger and Dick Cheney have been threatened with prosecution in countries across Europe. Philippe Sands, a prominent British lawyer, predicted that one day former Bush officials would receive a “tap on the shoulder” while on vacation in Italy or France.3 At a minimum, these people will be afraid to travel; maybe they will be captured, tried and thrown in jail.

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