Of course, it's not the lawyers we should be worried about. The lawyers who drafted this memo face little risk of prosecution, and they're not the ones in harm's way. We ought to be concerned about the soldiers and spooks charged with executing these missions, though, especially when they're asked to act on the basis of such shoddy legal advice. The Bush administration has created an atmosphere of legal ambiguity where the laws of armed conflict are concerned. This laissez faire attitude toward the law of war has filtered down to the lowest levels of command, where tactical decisions about taking detainees and targeting artillery are conducted. Before the events of 9/11 and America's global war on terrorism, soldiers and spooks had at least a few bright-line rules: Never target civilians; never beat prisoners; never violate the Geneva Conventions. Those rules have now been blurred by bad legal advice from the top lawyers of the Bush administration, with predictable results. Case in point: American soldiers training on how to beat recalcitrant al-Qaida detainees learned their craft so well, they put one of their own brethren, an American soldier, out of the service with permanent brain damage. The great moral hazard of bad legal advice is not that it will corrupt the lawyers offering it, but that it will engender criminal behavior by those who follow it in the belief that their lawyers are right.
"Law" and "war" may seem like the ultimate oxymoronic pairing, but until now, the United States has led the world in trying to harmonize the two. Until recently, American soldiers and diplomats could rightly claim that no other nation integrated the law into its conduct of war more than we do. Today, America's ambassadors abroad can no longer make that statement. That, in turn, undermines our ability to force other nations to adhere to international law, since we no longer lead by example. More practically, our soldiers used to take comfort in the principle of reciprocity where the laws of war are concerned; now they have to worry about reciprocity from our enemies. We must return to the old bright-line rules which used to govern our conduct in war, both because it's the right thing to do and because it's in our interest to do so.