Here's something for those who liked my earlier article for Foreign Policy about the foolishness of letting lawyers determine our cyberwar strategy, though it's probably even more of a treat for those who hated my article and wished they had equal time. The ABA Journal has posted an extensive, no-holds-barred debate over the views expressed in that article. Gen. Charles Dunlap, a former deputy judge advocate general of the U.S. Air Force, contradicts my article with passion, after which I offer a rebuttal, and he a surrebuttal.
Here's a sample of Gen. Dunlap's full-throated assault on my position:
Military commanders have seen the no-legal-limits movie before and they do not like it. In the aftermath of 9/11, civilian lawyers moved in exactly that direction. Former Attorney General Alberto Gonzales, for example, rejected parts of the Geneva Conventions as “quaint.” He then aligned himself with other civilian government lawyers who seemed to believe that the president’s war-making power knew virtually no limits. The most egregious example of this mindset was their endorsement of interrogation techniques now widely labeled as torture.
The results of the no-legal-limits approach were disastrous. The ill-conceived civilian-sourced interrogation, detention and military tribunal policies, implemented over the persistent objections of America’s military lawyers, caused an international uproar that profoundly injured critical relations with indispensable allies. Even more damaging, they put the armed forces on the road to Abu Ghraib, a catastrophic explosion of criminality that produced what military leaders like then-U.S. Commander in Iraq Lt. Gen. Ricardo Sanchez labeled as a “clear defeat.”
Infused with illegalities, Abu Ghraib became the greatest reversal America has suffered since 9/11. In fact, in purely military terms, it continues to hobble counterterrorism efforts. Gen. David Petraeus observed that “Abu Ghraib and other situations like that are nonbiodegradable. They don't go away.” Petraeus told the New York Times, “The enemy continues to beat you with them like a stick.” In short, military commanders want to adhere to the law because they have hard experience with the consequences of failing to do so.
...
In truth, as important as the moral perspective may be, the practical advantages of adherence to the rule of law have a power all their own—as history plainly shows.
Nazi Germany’s and Imperial Japan’s gruesome violations of the law of war, for example, hardly proved advantageous to them. More recently, Saddam Hussein, who embraced war without “limits,” was pulled from a subterranean spider hole—dirty, defeated and soon to be dead. Moammar Gadhafi’s illicit threats to wage war upon his own civilian population in the spring of 2011 brought the military power of the international community down upon him to the point where he ended his days groveling in a sewer pipe.
Military leaders know that adherence to the law is a pragmatic essential to prevailing in 21st century conflicts. It might be attractive to some to capitalize on the unpopularity of lawyers, to demonize them and even the law itself, but military commanders understand that war today has changed. They know that law has permeated war much as it has every other human activity, and they realize the perils of ignoring its power and influence. Whether anyone likes it or not, war has become, as Gen. James Jones, then the commander of NATO forces, observed in 2003, “very legalist and very complex.”
And here's a taste of my rebuttal:
Gen. Dunlap’s second theme is plainly heartfelt but equally mistaken. To him, taking lawyers out of cyberwar strategy will lead to “lawless war,” and he pulls out all the stops to condemn it, invoking Abu Ghraib, Adolf Hitler, Imperial Japan and, um, Alberto Gonzales.
If you’re wondering how the former attorney general got on that list, I suspect it’s because Gen. Dunlap is still fighting the last war. The last turf war, to be precise. The years after 9/11 saw bitter conflict between military judge advocates general and civilian leaders like Gonzales. They fought over military tribunals, Guantanamo and interrogation.
The military lawyers mostly won. But the cost of that victory was high. It did surprising damage to civilian control of the military (it’s hard, for example, to read Gen. Dunlap’s essay without getting the impression that “civilian lawyer” is some new kind of epithet). And it led military and national security lawyers to draw the wrong lessons from the post-9/11 wars. In the future, they concluded, no war should be planned or fought without a lawyer at every commander’s elbow.
Really? Let’s assume, despite substantial contrary evidence, that when we fight in places like Libya or Iraq or Afghanistan we can deprive our adversaries of propaganda victories so long as our military does nothing without a lawyer’s approval. Even if that’s true, why would we expect the same approach to work for a war in cyberspace?
At its worst, cyberwar could reduce large parts of the United States to the condition of post-Katrina New Orleans, maybe for weeks or months. Responding to propaganda attacks isn’t likely to be high on our to-do list.
The exchange is part of a new book, soon to be published by the ABA, entitled "Patriots Debate." It is a sequel to the earlier volume, Patriot Debates, in which most provisions of the Patriot Act requiring renewal were debated in the same long-form, mostly civil format. The sequel deals with a broader range of legal issues arising from the last ten years of fighting terrorists.
Gen. Dunlap fights the last war, and also misreads or misinterprets the history leading up to it. When he says the AG "aligned himself" with other civilian lawyers with preconceived notions, that implies there was some shadow cadre of lawyers waiting with their briefs on how to fight al Qaeda. Some of the lawyers I know who were making calls in the months after 9/11 were not working with much of a playbook written from solid legal experience or firm operational ground. Many issues were pretty new, not quite as cut-and-dried as he implies. Furthermore, a non-legal, very operational counter-narrative is soon to be published by Jose Rodriguez, former Director of CIA's National Clandestine Service under Porter Goss - in excepts already published, he clearly draws a distinction where Gen. Dunlap draws a non sequitur - namely, in what the intelligence community was doing in interrogation (irrespective of its legality in retrospect), and the unrelated criminal behavior at Abu Ghraib (I don't believe the abuses at Abu Ghraib were supported by legal review). As Rodriguez also points out, many decisions were made during that period not based on how the U.S. would appear to our allies at some point down the road - an important concern, to be sure, but not one that took priority over what was driving most operational and legal decision makers during that period: how best to protect the U.S., its citizens, and its military and civilian personnel on the front lines fighting the war. Dana Priest made this very point in the Post just today. Finally, Gen. Dunlap's historical arguments of military strength emanating from the rule of law are specious. Nazi Germany didn't lose because they flouted the rule of law. They lost because they opened a two-front war and because the Allies got a foothold back in Europe through well-planned deception and invasion. Imperial Japan lost WWII, not because of violating the laws of war, but because the United States beat them in the Pacific and then dropped atomic weapons on their cities (another legal issue not exactly bursting with precedent in 1945). And any number of actors and musicians can provide sub-Saharan, Near Eastern, or Asian examples that refute Gen. Dunlap's argument of Saddam and Gadhafi.
Posted by: Neal | Apr 25, 2012 at 11:00 PM
Thanks for drawing together some themes I hadn't connected in my own mind.
Posted by: Stewart Baker | Apr 26, 2012 at 06:26 AM