The difference between the president's lawyers and the military's.
Since the beginning of President Bush's "war on terror," his civilian lawyers have been willing, if not eager, to jettison the Geneva Conventions and the basic norms of due process. And since the beginning of this same war, the military's lawyers have largely opposed abandoning these rules and protocols. At first blush, that's a surprise. It would have been easy to imagine military lawyers feeling skeptical toward the paper guarantees of international law. It would hardly have been shocking if the army's lawyers had demanded greater latitude to fight a new type of enemy.
But, from the outset, the country's military lawyers have quite consistently invoked the rule of law, while it was Bush's civilian lawyers who urged that the law must bend. What does this distinction say about the difference between military attorneys and the president's? What does it say about the institutional differences between the army and the executive branch? And in the national conversation about the rule of law in wartime, which group of lawyers should we be listening to?
Perhaps this is simply a question of the military lawyers' relative independence. Bush has, after all, hand-picked his attorneys to pursue and justify a policy of expanded presidential power. The military lawyers are more insulated from the administration and thus able to take positions that contradict it.
Or maybe the difference in perspective comes from their very different institutional positions: All lawyers must, first and foremost, advise and protect their clients. And in the case of Army lawyers, those clients are the soldiers on the ground. Clear rules of conduct are essential to that end. The Geneva Conventions create clear, bright line rules, and military lawyers have spent a great deal of institutional energy making that line work operationally. President Bush and the CIA notwithstanding, those rules seemed to be working fine for the uniformed services.
The clarity of the Geneva Conventions is like the clarity of the Miranda warnings: They provide a set of instructions on the ground that every line officer can appreciate.
Military lawyers seem to appreciate the fact that the conventions protect our troops in another crucial way. The most popular argument right now for adherence to the Geneva Conventions is that if we "clarify" (read: disregard) them, we embolden our enemies to do the same. That increases the possibility that our own troops will be maltreated, either during the current conflict or in future ones. This argument isn't particularly persuasive in light of current events. Our enemies on the ground in Iraq couldn't care less about the Geneva Conventions. And the conventions did little to prevent the abuse of U.S. prisoners during Vietnam. It may be unrealistic to hope that future enemies will abide by the dictates of international law.
But military lawyers are not only concerned about how the enemy will treat our troops. They are also concerned about how our troops will treat the enemy—and not just because that treatment might be morally offensive and/or strategically unwise. As one of my colleagues—himself a JAG officer—put it, the Geneva Conventions are so honored by military lawyers because they protect our own troops' humanity. The conventions prevent higher-ups from ordering subordinates to engage in repugnant acts, and they offer soldiers on the ground some basis for differentiating legal acts of killing and destruction from criminal acts of killing and destruction.
These military lawyers understand that when you ask human beings to kill other human beings, rules of decency are required. War does not erase the line between legal and illegal killings, legal and illegal acts—war accentuates it. Establishing and policing that line becomes even more important when your client is the one likely to cross it.
Civilian lawyers may not appreciate this. Civilian lawyers are educated and socialized into a legal culture that takes the rule of law for granted. The stability of our legal system allows us to do what we do best: seek ways for our clients to avoid legal mishap. The law is something we need to strategize around because it often functions to limit our clients' options, not serve them.
Similarly, to the Bush administration's civilian lawyers, the laws of war are chiefly a barrier to getting the job done. They regard legal codes like the Geneva Conventions as efforts to hamstring the military and the rest of our security apparatus. They want to "revamp or repeal outmoded parts of bygone laws"—as professor John Yoo recently put it—because they view the law as a barrier to executive action.
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.