Since the attacks of Sept. 11, a common refrain has punctuated the legal arguments offered by the Bush administration in support of its terrorism policies: America is fighting a new kind of war, against a new kind of enemy, who will use unconventional methods to attack our nation and way of life. Extending constitutional protections to these foes might give aid and comfort to the enemy or give them some strategic or tactical advantage. This is the theory of "lawfare," most recently articulated by the Pentagon's March 2005 National Defense Strategy for the United States of America:
Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.
This succinct statement fuses two popular strands of military theory, one old and one new. The phrase "strategy of the weak" is a euphemism for "asymmetric warfare," a concept that dates back at least as far as David's use of a sling and stone to slay Goliath. In recent years, this term has frequently been used to describe suicide bombings and terrorist assaults, but it encompasses much more than pure violence. In theory, asymmetric warfare represents any assault in which one side seeks to gain a comparative advantage. The paradigmatic 21st-century example is a small nation with a weak military that cannot challenge strong nations on the field of battle but can attack them using asymmetric means—such as a squad of elite computer hackers to disrupt their banking systems. Many military theorists see asymmetric warfare as the wave of the future. It is, quite literally, the only viable option for a nation or nonstate actor who wants to challenge the United States.
"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.
In a nation such as ours, where citizens and rulers alike are subject to the rule of law, judicial processes may be a potent weapon indeed for a foreign state or a nonstate actor seeking redress. Under certain circumstances, even the president may be subject to civil process. The paradigmatic use of lawfare is a "decapitation strike" where, instead of using stealth aircraft with precision bombs, an enemy might use a personal lawsuit against the U.S. commander in Iraq to harass and distract him from his mission. Likewise, enemy partisans might, as the government argues, use legal processes to gather intelligence about U.S. military operations, exploiting the criminal discovery process for their own nefarious purposes.
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.
Truth be told, we have every reason to embrace lawfare, for it is vastly preferable to the bloody, expensive, and destructive forms of warfare that ravaged the world in the 20th century. First,lawfare has the obvious advantage of being safer than conventional warfare: I would far prefer to have motions and discovery requests fired at me than incoming mortar or rocket-propelled grenade fire. Likewise, lawfare rarely generates the collateral damage of conventional warfare. In recent war zones such as Bosnia, Chechnya, and Iraq, the cumulative civilian death toll stretches into the hundreds of thousands.
Second, our nation has developed safeguards to protect against the malicious use of its court processes. The mechanisms for dismissal and summary judgment, as well as well-developed immunity doctrines, protect U.S. military commanders from alleged decapitation lawsuits. Certainly, a disruptive enemy could file thousands of lawsuits across America, but it's not clear they would do any harm beyond wasting their filing fees before a judge tossed them out of court. To prevent criminal and civil discovery from aiding enemy intelligence operations, Congress has passed the Classified Information Procedures Act, and the courts have developed the "state secrets" evidentiary privilege, which together have safeguarded classified information in past espionage, terrorism, and government-contracts cases. In short, our legal system today is far more sophisticated than the simplistic lawfare tactics of our enemies, and we should have more faith in its ability to protect us.
Don't take my word for it. Recent prosecutions of Osama Bin Laden (in absentia), "American Taliban" John Walker Lindh, wannabe shoe bomber Richard Reid, Tim McVeigh, and Terry Nichols demonstrate the ability of our judicial processes to meet the challenges of terrorism. The trial of Zacarias Moussaoui has run aground, but that owes as much to the administration's invocation of lawfare to trump Moussaoui's Fifth and Sixth Amendment rights as anything else. And even then, he's still in prison, where he poses little threat to U.S. national security. None of these cases resulted in a disclosure of critical national security information; none conferred a strategic advantage upon our foes. If anything, our commitment to legal process for even our worst enemies has given us a moral and political advantage. Now that we are committed to the spread of freedom and democratic institutions, we must lead by example. To do otherwise would be the worst form of American exceptionalism.
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.
James Madison wrote once that "war is in fact the true nurse of executive aggrandizement." Historically, our presidents have wielded great powers during wartime, only to see the pendulum swing back at the conflict's end, as in 1866 when the Supreme Court posthumously rebuked Abraham Lincoln for his Civil War suspension of habeas corpus and use of military commissions. Nearly 43 months have passed since 9/11, longer than between Pearl Harbor and the German surrender in World War II. The time has come for normal judicial and political institutions to reassert themselves.