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MAJOR
General Charles J. Dunlap Jr., the US Air Force’s deputy
advocate general, defined lawfare as “the strategy of
using or misusing law as a substitute for traditional
military means to achieve an operational objective.”
Neoconservative lawyers David Rivkin and Lee Casey said
that lawfare aims to “gain a moral advantage over your
enemy in the court of world opinion, and potentially a
legal advantage in national and international tribunals.”
As discussed in the Federalist Society and at Republican
National Review Online, lawfare became the doctrine in the
National Defense Strategy of the United States of America
in these terms: “Our strength as a nation will continue to
be challenged by those who employ a strategy of the weak
using international fora, judicial processes and
terrorism.”
In
discussing lawfare in an article for Harper’s magazine,
human-rights lawyer Scott Horton noted “the equation of
international fora, judicial processes and terrorism” has
the consequence of turning to courts for the enforcement
of legal rights, appeals to international tribunals and
terrorism the elements of a single consistent enemy
strategy.
“In the
strange reasoning of the lawfare theorists,” Horton wrote,
“lawyers who defend their clients, or who present their
claims to domestic or international courts, might as well
be terrorists themselves. Human-rights organizations that
stand in court to insist that the
Geneva
conventions apply to Guantánamo detainees are thus also
guilty of lawfare.”
This was a
drastic departure from the traditional legal and military
doctrine followed by the
US
since the end of the Civil War, during which the
US
was on the brink of war with Great Britain over her
building and supplying of the Alabama and other
Confederate warships. Both nations agreed to binding
arbitration, thus not only preventing war with Britain but
also awarding enormous sums of money to the
US.
Theodore Roosevelt, “no shrinking violet,” mediated the
Treaty of Portsmouth in 1905 and helped bring the
Russo-Japanese War to a close, for which he was awarded
the Nobel Peace Prize.
All this
is in the past. History.
That’s why
Horton held that lawfare, as defined by Bush
administration officials, is a terrorist tactic in itself.
“Indeed,”
concluded Horton, “the lawfare doctrine is the conceptual
framework that best reveals the degree to which the Bush
administration has effectively declared war on the rule of
law itself.”
Lawfare
was especially difficult for lawyers representing
detainees in Guantánamo. (“Never more so than in the
habeas-corpus bashing Military Commission Act of 2006—a
piece of legislation that will stand in history alongside
the Alien and Sedition Acts and the Fugitive Slave Act as
a reminder of the kind of constitutional vandalism that
Congress is capable of when it really tries.”)
Trial of a
military lawyer
Lieutenant
Commander Charles D. Swift, detailed to serve as defense
counsel to a self-admitted driver of Osama Bin Laden,
challenged the legality of the military commission’s
process and succeeded in prevailing on all the major
issues brought to the US Supreme Court. For his brilliant
and effective advocacy, he was a runner-up for The
National Law Journal’s Lawyer of the Year award in 2005,
and in the following year was cited as one of the 100
Influential Lawyers in America by the same publication—the
only Defense Department lawyer to be so recognized. His
reward in Defense was being passed over for promotion,
which led him to plan on retirement. Several military
leaders told Horton that a Guantánamo defense assignment
was a “career stopper.”
“Either
you roll over and show you’re a worthless lawyer, or you
give it all you’ve got and prepare to leave the service.”
Disturbing
to Horton is the fact that the legal issues involved in
habeas corpus were resolved a century before the US gained
its independence. It is as if hundreds of years of legal
precedent suddenly vanished. As he put it at length:
“Although the English civil wars were fought over broad
religious and political issues, when we read the masterful
histories of Thomas Babington Macaulay and G.M. Trevelyan,
it seems that much of the fighting was actually over
technical legal questions. Will habeas corpus be granted?
Will there be a right to a jury? Can the prosecution use
secret evidence? Will the courtroom be open and the trial
public? Will the accused have the right to know the
evidence against him, to face his accuser? Can torture and
other cruel practices be used to extract evidence? These
issues echo, to an astonishing extent, the issues that the
Guantánamo habeas corpus lawyers are litigating today. The
Roundheads who rose for God and Parliament defined the
justice of their cause in similar terms.
“Indeed,
the entire history of seventeenth-century England can be
seen as the triumph of demands for fair process and
justice over the claims of royal prerogative. As Trevelyan
wrote, ‘At a time when the Continent was falling prey to
despots, the English under the Stuarts had achieved their
emancipation from monarchical tyranny by the act of
national will…. Never perhaps in any century have such
rapid advances been made towards freedom.’”
The
history is long and the persecution of lawyers continued
for a generation before it was recognized that the actions
of the defense counsel should not be confused with the
crimes of their clients.
As Henry
Peter Brougham put it in a classic pronouncement: “An
advocate, in the discharge of his duty, knows but one
person in all the world, and that person is his client. To
save that client by all means and expedients, and at all
hazards and costs to other persons, and, among them, to
himself, is his first and only duty; and in performing
this duty he must not regard the alarm, the torments, the
destruction which he may bring upon others. Separating the
duty of a patriot from that of an advocate, he must go on
reckless of consequences, though it should be his unhappy
fate to involve his country in confusion.”
The
lawfare doctrine, however, joins patriotism with advocacy.
Brougham’s impassioned advocacy of separation would be
regarded since 9/11—at least by Bush administration civil
and military officials—as unpatriotic at best and
treasonous at worst.
Nazi
origins of lawfare
Horton
found no antecedent for lawfare in US history; instead he
found it in the German legal theorist Carl Schmitt, a
convinced enemy of the legal democratic principles
embodied in the Weimar Constitution adopted after the end
of World War I. For Schmitt, the notion of dispassionate
and independent administration of justice was a dangerous
liberal illusion. He sought to restructure the legal
profession—ensuring that judges were not independent but
essentially extensions of the executive, that prosecutors
were fully politically motivated and that defense counsel
were, in general, silenced. As his ideas were put into
practice, a large number of the most prominent members of
Weimar Germany’s defense bar went into exile, many of them
moving to the US and Great Britain.
Schmitt
laid the foundations for a new attitude toward warfare and
the role of law in the conduct of war. His early
“masterwork,” The Concept of the Political (1927),
derided the weakness of liberalism and its efforts at
consensus-building and “instead embraced the legitimacy of
a process of extreme demonization of political
adversaries.” Guaranteeing legal rights to an enemy was
thus senseless and counterproductive. He then advanced the
notion of “total war” in Total Enemy, Total War, Total
State, suggesting that the neatly delineated warfare
of prior ages, in which uniformed, professional armies met
on a field of war, was in decline in favor of a new kind
of all-encompassing warfare.
“Schmitt
ridiculed the law of armed conflict, saying it reflected
ideological principles rooted in nineteenth-century
English liberalism. At the same time, he turned to the
legal concept of piracy as a basis for treating
adversaries as persons completely beyond the help of law
and the courts, free to be dealt with just as the
executive pleased without being bothered by lawyers.
“Schmitt’s
thinking and analysis—the weakness of liberalism, the
utility of law-free zones, the demonization of
adversaries, the subordination of justice to
politics—align almost perfectly with the Bush
administration’s concept of lawfare, and with many other
legal tactics the administration has adopted in the war on
terror and elsewhere.”
In a
footnote, Horton noted that the most vivid demonstration
of the tendency is found in the show trials conducted
during the Great Purge of the 1930s under Joseph Stalin
and his legal choreographer, Andrei Vishinsky, the show
trials that served to define Soviet culture for decades.
As an experienced defense attorney explained to the writer
after the collapse of the Soviet Union, “I always had a
simple understanding of my role. It was to convince my
client to plead guilty and throw himself at the mercy of
the court. Only by this path could he ever really hope to
achieve a milder sentence.”
Frightening parallel
To be
sure, the
US
predicament is not as dire as that of Weimar Germany’s
under the legal influence of Schmitt; nevertheless, Horton
perceives frightening parallels. While the habeas corpus
lawyers are certainly not in league with Osama bin Laden
to destroy America, they are regarded by powerful
officials as “accomplices.” The danger of a culture built
on a questionable precedent is that the changes wrought by
George W. Bush “will become entrenched and will apply to a
broader array of presidential enemies.”
But not
only to presidential enemies, for since the US global war
on terrorism, the lawfare doctrine applies to other
countries, particularly those numbered among the Coalition
of the Willing.
“If so,”
notes Horton, it would prove Carl Schmitt’s most famous
saying: “Sovereign is he who controls the exception,” a
distortion of the laudable description of “American
exceptionalism.” “By providing an exception to the
application of the rule of law, our nation may have
unleashed a radical new constitutional order.”
A “radical
new constitutional order” in America will encourage the
entrenched tyrannies of lesser nations, where the
existence of a criminal-justice system exists to capture
and brand criminals is also understood as an essential
instrument of political repression.
It’s said
that when
America
sneezes, the whole world catches a cold.
While the
lawfare doctrine is explicit in America after 9/11, it is
instinctive in many other nations with a short, hazy and
weak history of the struggle for human rights. We don’t
have to look very far for parallels.
It wasn’t
too long ago when President Woodrow Wilson pronounced that
the history of liberty is the history of resistance. “The
history of liberty is a history of the limitation of
governmental power, not the increase of it.” In 89 years,
American political scientists noted the rise of the
Imperial Presidency.
No one is
saying that the treatment of enemies of the state,
subversives and dissidents is an easy matter, for it’s
true that they also violate the human rights of others
even as they protest the government’s general violation of
human rights. That’s the root of lawfare in our time, and
that’s why dissidents and subversives, even those with
legitimate grievances, are easily labeled “terrorists.”
But if
democratic governments stand for the rule of law, may they
also stand against it through the lawfare doctrine?
American defense lawyers apparently regard this as far
from a rhetorical question because their government is
implementing it.
On the
other hand, democratic governments, while recognizing the
right of protest, even of revolution, also invoke the
fundamental right of self-preservation. 9/11 has given the
Bush Administration this “warranty,” as if proving
Schmitt’s point that liberalism is weak in fighting
enemies of the state, of domestic tranquility and public
order.
But the
question is whether in fighting the “Devil,” one can also
adopt his ways without becoming like him. |
