Dark Bilious Vapors

over at Slate, Phillip Carter examines the concept of "lawfare":

"Lawfare," the second theoretical strand, represents one of the most interesting recent developments in military theory. More than 100 years ago, Prussian strategist Carl von Clausewitz wrote that war was a continuation of politics by other means; a way to impose a nation's political will by force of arms. Lawfare is best understood by turning Clausewitz on his head (sorry Carl)—it is a continuation of warfare by political or legal means. According to the Council on Foreign Relations, lawfare is the "strategy of using or misusing law as a substitute for traditional military means to achieve military objectives." Partisans fire motions and discovery requests instead of artillery rounds.

The Bush administration has frequently invoked the specter of lawfare. It has rejected American participation in the International Criminal Court because of fear that hostile nations might initiate ICC trials of American soldiers or political leaders. Justice Department lawyers have defended the use of summary immigration proceedings based on the purported threat posed by noncitizens. Senior administration lawyers frequently criticize the judiciary for rulings that inject judicial oversight into the war on terror—including last year's Supreme Court decisions in Rasul v. Bush—then wage a scorched-earth legal campaign to undermine these decisions.

Perhaps most audaciously, the Bush administration has created an entirely new judicial system of military commissions at Guantanamo Bay—complete with separate courts, judges, crimes, and rules of procedure—to try prisoners suspected of terrorism and other war crimes. That system's legitimacy and propriety will be tested this week when the U.S. Court of Appeals for the D.C. Circuit hears oral argument in Hamdan v. Rumsfeld, the case of one man scheduled for trial by the military tribunals at Gitmo. (Full disclosure: I wrote a friend-of-the-court brief opposing the government in this case.)

Whether you believe that the threat of lawfare justifies these measures depends on your perspective on the rule of law. The Bush administration has argued, convincingly in some forums, that we must sometimes subordinate the rule of law to necessity or expediency, especially where matters of national security are at stake. In a "ticking bomb" scenario, where the rule of law prevents the United States from acting against some imminent threat, I am hard-pressed to find fault with this argument. Between a terrorist nuclear attack in Los Angeles and a few extralegal measures, I'd choose the latter.

But ticking-bomb scenarios exist in Hollywood for the most part; they should not drive policy. In the real world, lawfare hardly poses the overwhelming concern that the Bush administration claims.

Nonetheless, the White House fears lawfare. Understandably, the administration is scared it will lose in courts, because its cases sometimes rest on shaky evidence not likely to be admitted into a U.S. military or civilian court. However, there's a more subtle fear at work: If the administration decides to try suspected terrorists in ordinary civilian or military courts, it must also concede that the government no longer requires extraordinary powers to fight terrorism. This would undermine administration policies in many other areas—from the zealous enforcement of immigration laws to the use of emergency supplemental appropriations for the wars in Iraq and Afghanistan. Charging Salim Ahmed Hamdan in federal court, or revising the military commission rules to look more like conventional courts-martial, would be tantamount to an admission that the post-9/11 state of emergency had passed and that America could go back to being itself once again.

Len on 04.06.05 @ 07:13 AM CST