Lawfare Revisited

Eric Posner has an interesting essay at National Interest on "Lawfare." Posner is unconvinced of the utility of the term, arguing that theorists of lawfare tend to dramatically understate the role of power and interest in the execution of international law. However much US officials might be threatened in the abstract by claims of universal jurisdiction, few governments are willing to run the risk of actually arresting prominent Americans.

MODERNITY HAS made lawfare appear to be an all-encompassing, ever-present and alarmingly new phenomenon. Thousands of WikiLeaks cables flood our inboxes while Al Jazeera plays Afghans fleeing American bombs on a loop. Technology is a double-edged sword. The same technological advances that made precision-guided weapons and improved battlefield communications possible have also made the U.S. military vulnerable to the dissemination of graphic pictures and confidential information. U.S. strategy and operations will have to adjust to these threats. But they are not legal menaces, and they can’t be addressed by hiring JAGs. WikiLeaks poses a distinctive challenge, but the problem is political, despite all the talk of the First Amendment. The courts have never explicitly barred the U.S. government from criminalizing dissemination of classified information. The real problem is that if the U.S. government goes after WikiLeaks, the precedent it sets will threaten the press. There is no obvious way to distinguish the actions of Julian Assange from those of the editor of the New York Times: both of them publish leaks. But that means a prosecution would be politically explosive; the U.S. government risks making an enemy of all the media, which it cannot afford to do. None of this is “lawfare”—certainly no more than were the first printed leaflets distributed among enemy populations in the fifteenth century.

Putting aside the constraints of politics and technology, all that is left of lawfare is the trivial threat of foreign and international law. Internationalists of various stripes believe that law stands above and beyond politics. In fact, the use of law depends on power, and is enforced by those who have it against those who do not. Failure to understand this fact will lead the United States down a foolhardy path, wasting resources on unneeded JAGs and tying the military’s hands. The irony is that the hardheaded officials who run the national-security apparatus fear chimeras conjured up by the dreamiest internationalists.

I think that Posner is mostly right, but he probably understates the degree to which insurgents, terrorists, and pirates have become adept at navigating the lacunae of both international law and American domestic law in pursuit of their ends. International law only has the power we give it, but of course we do give it some power, and this has consequences. Similarly, one can wage "lawfare" using only the protections guaranteed under US domestic law; organized crime conducts this kind of "lawfare" all the time (just watch a few episodes of The Sopranos or The Wire). Posner is correct to suggest that claims that "lawfare" represents a concerted effort to shackle US power are alarmist. However, he doesn't sufficiently deal with the argument that international and domestic law represent a field of contention in modern warfare.