Power and Constraint — how the JAGs hijacked U.S. anti-terrorism policy

The U.S. response to 9/11 is mostly a success story. But the story has not been without its discouraging aspects. One of the worst was the hijacking of key aspects of American anti-terrorism policy by military lawyers.

During the Bush years, we often heard from the left that the war on terror was changing America for the worse by undermining our values and our Constitution. These claims were mostly nonsense. But one portion of our system did take a hit — the concepts of civilian control of the military and the Commander-in-Chief as chief law interpreter for the executive branch. This was the handiwork of the JAGs.

We covered this development as best we could on Power Line, mostly by reporting on the work, and the preening, of Lindsey Graham, the JAGs’ man in Congress. However, until I read Jack Goldsmith’s book Power and Constraint, I didn’t know the half of it.

Here is the portion of my review of Goldsmith’s book that deals with these matters:

“Lawfare” refers to the relatively recent phenomenon of law and lawyers affecting the conduct of war. Lawyers, Goldsmith shows, are now at the heart of the military decision-making process. They not only review operational plans in advance, but also participate in the field, providing counsel to commanders regarding proper targets, for example.

This had been true for some time. But given the urgency of a strong response to attacks on our homeland, many expected the influence of lawyers over military operations to diminish after 9/11. Instead, Goldsmith shows, military lawyers became more deeply integrated than ever in military decision-making. They also grew closer to the fight, with two to three lawyers deployed with every army brigade, and a lawyer deployed for many special operations forces down to the battalion level.

Goldsmith makes clear that the constraining function of military lawyers goes beyond applying their view of the law. Lawyers also advise commanders on whether particular actions will pass “the CNN test.” And even when it’s not possible for lawyers to be present, they constrain action through the rules of engagement they write. These rules, too, embody not just legal considerations, but also political and diplomatic ones.

Goldsmith finds that “lawfare” constraints have impeded our military operations and increased the number of U.S. casualties. They even enabled Mullah Omar, the leader of the Taliban, to escape after a lawyer dissuaded the military from striking a building because civilians were probably present. As Goldsmith explains, “[S]urrounded by law and under the gaze of many potential retroactive critics, it is entirely rational for soldiers up and down the chain of command to hesitate before acting.” Such hesitation is sometimes incompatible with waging effective warfare.

How did we get to the point where lawyers help manage, and adversely affect, combat operations? We got there, Goldsmith shows, mainly through the efforts of what he calls “warrior-lawyers.”

These JAGs possess both a military and a legal education. The combination appears to be a heady mix. For example, General Mark Martins, Goldsmith’s protagonist warrior-lawyer, claims that “law embodies and summarizes human experience about right action in a particular context.”

Many experienced lawyers across a wide range of practice areas may find this statement naïve. They may also wonder about the quality of a summary of human experience under which suspected terrorists can be killed without legal process by drone strikes but, if captured in the hope that they will provide valuable intelligence, cannot be slapped in the face.

According to Goldsmith, the post-9/11 policies of the Bush Administration were “a direct affront to the JAG view of the world.” And animated by an unrealistic view of the law and an emphasis on their personal honor, these warrior-lawyers seem to have forgotten that in the United States, civilians control the military, and the Commander-in-Chief is the chief law interpreter for the executive branch.

The JAGs set out to undermine Bush policy through all available means, including leaks, public testimony, coordination with sympathetic politicians, and even assistance from human-rights groups with whom, says Goldsmith, “they had a greater commonality of interest than with the President.” Through these methods, they were able substantially to constrain their adversary, the President of the United States.

The JAGs could not have accomplished this had they not already gained vast influence within their base of operations, the military. They gained that influence primarily because they helped commanders identify and circumvent legal landmines.

But the JAGs were not the passive beneficiaries of a windfall of law they were then asked to help cope with. For decades, Goldsmith reports, they worked with human rights groups with whom they came to share a general outlook.

Not surprisingly, then, the JAGs were instrumental in the decision by the U.S. military to follow many aspects of customary international law, and in the writing of ever-expanding legal and policy manuals that they could then interpret and apply. And not surprisingly, when the Bush Administration sought greater flexibility through measures inconsistent with the shared outlook of the JAGs and their friends in the human-rights community, the JAGs counterattacked with great success.

Goldsmith appears troubled by the military’s undermining of the President’s ability to interpret the law on behalf of the executive branch. He also recognizes that the injection of lawyers into battle harmed U.S. counterterrorism efforts. Ultimately, he is agnostic as to whether the harm is outweighed by the possible prevention of misguided polices and the blowback they would have caused.

Goldsmith’s agnosticism is understandable. Both sides of the cost-benefit equation are impossible to measure. But this much should be clear: our elected executive is responsible for making the cost-benefit decisions. His decisions may be subject to judicial review, but they should not be undermined or thwarted by military lawyers. It also seems clear that in war, including war on terrorism, the president should err in favor of defeating the enemy, rather than minimizing “blowback.”