Jack Goldsmith traces the origin of his new group blog’s name, Lawfare:
General [Charles] Dunlap first used the term in a 2001 paper that came on the heels of the 1999 Kosovo campaign, in which both lawyers and public debates about the legality of the war figured prominently. “Is lawfare turning warfare into unfair?,” he asked, and his basic answer was “Maybe.” General Dunlap defined “lawfare” as the “use of law as a weapon of war,” which he described as “the newest feature of 21st century combat.” The paper gave many examples of relatively weak U.S. adversaries using legal principles dishonestly and strategically to “handcuff the United States” in an effort to “exploit our values to defeat us.” After cautioning against overreaction and insisting on the importance of adherence to the law of armed conflict, he concluded that “there is disturbing evidence that the rule of law is being hijacked into just another way of fighting (lawfare), to the detriment of humanitarian values as well as the law itself.” General Dunlap subsequently wrote many more essays about “lawfare,” and in part (I think) to rebut misinterpretations or misappropriations of his work, he expanded the definition of the term to mean “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.”
Goldsmith goes on to list a number of examples in which the law is playing an important role in how armed conflicts around the world are being conducted, from Israeli-Palestinian conflict to the battle over trying suspected terror detainees in military commissions or civilian courts. But despite the origin of the term, the description of the law being used “as a weapon of war” aptly applies to the way in which both the prior and current administrations have sought to circumvent, reinvent, or reinterpret the law for the purposes of dealing with international terrorism. That’s not to say that the existence of a global armed conflict with combatants who hide among civilians and don’t identify themselves didn’t pose unique legal challenges, just that both administrations have been consistent in seeing the law as a tool of war rather than as an end unto itself, whether we’re talking about maintaining the U.S. reputation, ensuring convictions, detaining people indefinitely or spying without a warrant. That’s why you hear people like Attorney General Eric Holder arguing that the inability to use Article III courts to try suspected terrorists would “weaken our ability to win this war.”
The problem is that if you’re thinking of the law as just another part of your war strategy due process is necessarily going to take a back seat. That’s unless you see legitimate due process as a key part of that strategy, but it’s clear the Obama administration mostly just talks that way, which is to say they see the act of appearing to adhere to the rule of law as more strategically significant than actually doing so.
