Vindicating law through warfare — a bridge too far

Phillip Bobbitt is the Herbert Wechsler Professor of Federal Jurisprudence and the Director of the Center for National Security at Columbia University. He has a long history of high-level government service.

Bobbitt is the author of Terror and Consent: The Wars for the Twenty-First Century, a provocative attempt to re-conceptualize the war on terror. Bobbitt argues that many of the widely-held assumptions about this war are dubious at best. Among them are:

The view that because terrorism will always be with us, there can be no victory in a war against terror;

The view that the root causes of terrorism lie in conditions of poverty, economic exploitation, neglect of health and education, and religious indoctrination that must be reversed before a war against terrorism can be won;

The view that terrorism will not flourish in democracies;

The view that confronting hostile states can only make the wars against terror harder to win because it diverts resources and wins fresh adherents for the terrorist enemy;

The view that good intelligence provides the decisive key to defeating terrorism.

This list suggests (1) that Bobbitt is a post-partisan iconoclast and (2) that his book covers a lot of territory. I want to focus on one major theme that a group of us discussed with Bobbitt last night at a dinner held by the Hoover Institution. That theme can be summed up in the dedication of Bobbitt’s book:

For Lloyd Cutler and Sir Michael Howard. Law and strategy; American and Briton: strongest and wisest when in concert.

At one level, it’s difficult to argue against the notion that, in fighting terrorism, law and strategy should be in concert. It’s also difficult to deny that the Bush administration should have paid more attention to a wider range of voices (particularly voices within the administration) with respect to legal issues relating to the war on terrorism. Similarly, it may well have been a mistake for Bush not to have worked with Congress early on to bring FISA into better harmony with modern strategic needs.

Bobbitt, though, goes further. He favors taking the rule of law to the battlefield. For example, he finds it “salutary” that lawyers are embedded in combat units and may even possess veto power over targeting and other decisions made by commanders in the heat of battle.

Bobbitt quickly acknowledges that nothing like this sort of “concert” of law and strategy existed during the wars of the twentieth century, and that by-and-large that worked out well for us. But he insists that we are in a different kind of war today, such that law and strategy now must be united as never before.

Few would dispute that we’re in a different kind of war, but it’s not clear to me why Bobbitt thinks this fact entails such a radical departure from past practice with respect to the role of law in the conflict (but then, I’ve only read a small portion of his book). Last night, Bobbitt based his thesis on our war aims (as he sees them). In essence, he argued that one of our very central war aims is vindication of the rule of law, and therefore our warfare should itself vindicate the rule of law.

But our desire to maintain (or vindicate) the rule of law does not strike me as a distinctive feature of the war on terror. We’ve fought to preserve our freedom before, and it’s far from clear that Islamic and other terrorists pose a greater direct threat to the rule of law than did our enemies in World War II, for example. The distinctive feature of this war, I would have said, is the threat terrorists pose to the physical safety of our civilian population. Under these circumstances, the case for abandoning prior models regarding the role of law may be less compelling than Bobbitt supposes.

In any case, the challenge of successfully marrying strategy and law in the way Bobbitt contemplates seems nearly insurmountable. Right now, I would argue, the marriage is quite one-sided. The Supreme Court is dictating how we treat detainees and lawyers apparently are vetoing combat decisions. That’s one side of the marriage. But what is the legal community doing to understand strategy? And what change to the legal culture and mindset is taking place that will overcome the aversion to risk that caused lawyers to veto efforts to kill bin Laden during the 1990s? Bobbitt seemed reluctant even to address these sorts of questions last night.

I don’t mean to suggest that from now on, “law” will always have the upper-hand over “strategy.” A few successful terrorist attacks could put strategy back in the saddle (but that might not be much of a marriage either). Stated differently, a few such attacks would probably make the law look significantly different than it does now. And that may be another argument against the marriage – law changes its mind too often.

The rule of law is a more constant notion. We vindicate it by adhering to binding court decisions, allowing both Congress and the president to play their proper constitutional role, and so forth. I doubt that we vindicate it in any fundamental way by partnering lawyers with battlefield leaders during combat. And, if we do, I question whether vindication to that degree should be a war aim in this conflict.

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