The difference between the president's lawyers and the military's.
Military lawyers seem to conceive of the rule of law differently. Instead of seeing law as a barrier to the exercise of their clients' power, these attorneys understand the law as a prerequisite to the meaningful exercise of power. Law allows our troops to engage in forceful, violent acts with relatively little hesitation or moral qualms. Law makes just wars possible by creating a well-defined legal space within which individual soldiers can act without resorting to their own personal moral codes. The analogy to the Miranda warnings is again useful. When we ask members of our community to use force to protect us, it is helpful for them to have clear guidelines about how to do so. That is not because we want them to be less effective in their jobs; it is because we want them to be more so.
Military lawyers do not want to "revamp or repeal" the Geneva Conventions as Yoo suggests, in large part because those conventions are what makes their clients' exercise of power possible. They believe, instead, in what scholars call the "expressive" power of the law, its ability to command respect on an international scale. But more important, they understand how the law's expressive power operates on an individual scale.
When Sen. John McCain says that he could not have survived his five and a half years as a prisoner of war unless he believed that his country would not abuse Viet Cong soldiers as he was abused, he is talking about the expressive power of law. McCain is saying that he could not have fought (or survived) effectively and successfully if he had had doubts about the moral quality of his struggle. The Bush administration lawyers do not appreciate this important characteristic of the international laws of war; the fact that they provide a justification for our own actions, even when violated or ignored by our enemies. When our government requires individuals to undertake extraordinary acts—like engaging in war—it has the responsibility to offer those individuals the legal tools to do so effectively.
The military lawyers' disagreement with the Bush administration is thus not only a disagreement over the appropriate rules of engagement in the war on terror. The military lawyers and Bush's civilian lawyers also seem to have different conceptions of how the rule of law contributes to that fight. Maybe the military lawyers, like Sens. McCain, Graham, and Warner, have simply seen more war than this president. Perhaps they have simply heard from more soldiers grateful for the power and authority that comes from a clear legal rule. Or perhaps they better understand the precariousness of the rule of law—and the extent to which that precariousness damages us, and not just those who hate us.
Richard Schragger is a professor at the University of Virginia Law School.