re: "Criminalizing War"

Marc Schulmann at American Future gives us an excerpt from a recent Wall Street Journal article by "David Rivkin and Lee Casey, both of whom served in the Department of Justice during the Reagan and George H.W. Bush administrations."

This is perhaps the best explanation of "lawfare" that I've seen yet and should be required reading for anyone possessing the franchise, certainly for anyone on the bench or presuming to practise law.

Money quote(s):

"The term "lawfare" describes the growing use of international law claims, usually factually or legally meritless, as a tool of war. The goal is to gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals."

That's it. The definitive definition of waging war by other means, a legal form of assymetrical judo where our own strengths are turned into vulnerabilities.

Al Qaida's "training manual, seized by British authorities in Manchester, England, openly instructs detained al Qaeda fighters to claim torture and other types of abuse as a means of obtaining a moral advantage over their captors."

"Combatants, whether the regular soldiers of sovereign states, irregular guerillas or terrorists, have never enjoyed the right to contest the legality of their detention in the civilian courts, or to a criminal trial."

&

"The effect of this lawfare effort, were it successful, would be to make it exceptionally difficult—if not impossible—for a law-abiding state to wage war in anything like the traditional manner, bringing the full weight of the national armed forces to bear against an enemy, without prompting charges of war crimes and efforts to intimidate individual officials with prosecutions on ersatz "war crimes" theories. In fact, the criminalization of traditional warfare seems to be the goal.

Unfortunately, the progressive humanitarians (as they would certainly describe themselves) have embarked on this campaign to criminalize warfare (a kind of judicially enforced Kellog-Briand Pact), without giving much thought to alternatives for ensuring the welfare and security of the civilian populations that the armed forces of states, and of the U.S. in particular, are raised and maintained to protect. To the extent that terrorist combatants are given the rights of criminal defendants, their ability to sustain long-term hostilities, and to reach their civilian targets, is increased.

Lawfare designed to delegitimize the use of American military force, and the American way of war, certainly has the potential to undermine public support for the war effort, both at home and abroad. Recognizing the stakes involved, the U.S. should be as committed to winning the lawfare battle as the ground combat in Afghanistan and Iraq.

Merely defending itself in court is not enough. The U.S. must go on both the legal and public diplomacy offensive, utilizing such aggressive litigation tactics as seeking sanctions against lawyers who make frivolous arguments or violate security regulations. Most important, the administration should strive to explain, tirelessly and at the highest levels, that its policies are both legal and legitimate and that it is the lawfare's practitioners who are the true radicals."