The slipperiness of the term seems apparent in Benjamin Kleinerman’s smart review on Lawfare this weekend of Eric A. Posner and Adrian Vermeule’s new book The Executive Unbound: After the Madisonian Republic (which takes the authors to task for rejecting a Madisonian vision of government without paying sufficient attention to Madison’s own thoughts on the topic). To set the review in the context of the Lawfare blog, Kleinerman begins by invoking what he suggests is one of lawfare’s meanings. He notes in part that the concept of lawfare refers to the idea that “law has become a potent weapon in the modern national security state-so much so that paying attention to the law has become an essential component of national security itself.” This idea is prevalent in discussions of lawfare. But Kleinerman precedes this with the idea that “the term ‘lawfare’ refers to the ways in which the national security establishment needs to worry about the aggressive, ‘war-like,’ use of the law to punish it for past actions.”
For Kleinerman, it was in part the likelihood of legal second-guessing that “led the Bush administration to seek a legal doctrine of executive power that would permit the wide-ranging discretion it thought necessary to conduct the ‘war on terror.’ The Bush administration sought to legalize what I have argued elsewhere is rightly thought of as extra-legal discretion because the world of ‘lawfare’ required a legal response to the inevitable legal challenge.”
In this treatment, law is a negative presence because the threat legal sanctions calls for a legal response, and this constrains effective government action.
Lawfare in this sense is a negative force, pushing the executive to make decisions within a legal frame when non-legal considerations would render a better judgment.
Lawfare is also a negative presence, although in a different way, in the work of David Kennedy. In the compelling closing of his book Of War and Law, he argues that the role of law in decisions about war has displaced judgment itself, depriving decisions about warfare of their moral weightiness, and undermining the vitality of a politics of war. “The most unsettling aspect of war today,” he writes,
is the difficulty of locating a moment of responsible political freedom in the whole process by which war is conceived, waged, and remembered. Instead, we find humanitarians, military professionals, and statesmen speaking...a common vocabulary of justification and excuse. To regain the experience of free political decision, we will need to awaken in all those who speak the language of war the human experience of deciding, exercising discretion, and being responsible for the results an unpredictable world serves up....
For all of us, recapturing a politics of war would mean feeling the weight and the lightness of killing or allowing to live....As men and women, our military, political, and legal experts are, in fact, free – free from the comfortable ethical and pragmatic analytics of expertise, but not from responsibility for the havoc they unleash.Kennedy and Kleinerman both see law as a negative presence, but Kennedy’s critique is broader. In his work, legal ideas create a frame for decision-making, enabling decision-makers to feel compelled by law in a way that distances them from the immediacy and effect of their judgment, from feeling “the weight and the lightness of killing or allowing to live.”
Both Kleinerman’s and Kennedy’s conceptions can be found in Jack Goldsmith’s account of law in the Bush Administration, making The Terror Presidency a more ambiguous account than I had previously thought.
Goldsmith writes that, faced with concerns about the possibility of another terrorist attack, and fear of being blamed for not avoiding it, the president could only justify the failure to take protective action if he had a good reason. “A lawyer’s advice that a policy or action would violate the law, especially a criminal law, was a pretty good excuse.” The White House was “haunted” by 9/11, and “obsessed with preventing a recurrence of the expected harsh blame after the next attack.” Because of this, “the question, ‘What should we do?’ ...often collapsed into the question ‘What can we lawfully do?’...It is why there was so much pressure to act to the edges of the law.”
Reading this in conjunction with Kennedy, we can see Goldsmith describing lawfare as a decisional frame, pushing out other kinds of reasoning.
Goldsmith adds that Bush’s lawyers “viewed every encounter outside the innermost core of most trusted advisors as a zero-sum game that if they didn’t win they would necessarily lose.” In this context, arguments about law were volleys in a struggle for power; they were “strategic lawfare.” This is more consistent with Kleinerman. The negative dimension of law is not exactly that it blocks out other reasoning, but that it becomes no more than a weapon used by each side in battles, domestic and international. Legal challenges require a legal defense, deflecting attention from other dimensions of executive judgment.
I was thinking about Kennedy on lawfare when I attended Charles Dunlap’s illuminating discussion of the topic at the National Security Law Institute this summer at the University of Virginia Law School.
Dunlap’s definition of lawfare is more direct: it is “the use of law as a weapon of war,” or the use of law “to achieve a military objective.”
Law’s impact is not inherently negative for Dunlap. Instead he suggests that law can be used for good or for ill. At the Institute and in this influential essay, he describes at length the strategic deployment of law – by U.S. forces and their adversaries – and the need for a lawfare defense, a way to anticipate and undermine the strategic use of law by an adversary.
But what about Kennedy’s claim that law has occupied the terrain of military judgment, driving out its moral weightiness, I asked him. His response was interesting – that bringing law in to discussions of warfare, in his experience, was the way military leaders brought engagement with norms in, rather than excluding them. In opposition to Kennedy’s rendering, for Dunlap it is law that brings considerations of humanity into discussions of military strategy, rather than blocking them out.
So we seem to have a mix of ideas about lawfare. Somehow I find this tension more satisfying than clarity might be. But still, I looked to the Lawfare blog for its own definition. Rather than nail down the topic, the blog, perhaps appropriately, leaves us with nebulosity, and adds another wrinkle: lawfare as our own internal battles:
We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation's laws and legal institutions....The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word-which is admittedly not its normal usage-binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America's lawfare, even as we participate in many of its skirmishes.How do you define it?
Cross-posted from Balkinization.