Jack Goldsmith Comes Out Against Concept of “Lawfare”
As part of an series of “mea culpa” posts by various post 9/11 players over at the Lawfare blog, Jack Goldsmith recounts how his views on lawyering within the government’s national security complex have changed, from skepticism to acceptance. On the use of law by those seeking to constrain the government’s discretion from the outside:
I started the decade in the camp of those who saw the novel cascade of legal criticisms and lawsuits against the U.S. government’s counterterrorism policies simply as efforts to use law strategically “as a weapon of war” to “handcuff the United States,” as Charlie Dunlap put it in his seminal paper. This may well be the motivation of some of USG critics, both inside and outside the government, but the issue, I now realize, is much more complex. As war has become hyper-legalized, and as legality has become the currency of legitimacy for military action, it is inevitable that government critics will use law as a measure of critique and a tool of sanction. But the Executive branch uses law strategically as well. The President’s legitimate military power flows from domestic and international law. His lawyers are in constant battle—with the media, NGOs, and terrorists in federal court—for their favored understandings of the law, and in these battles they interpret and employ law strategically to further their aims. The United States also employs law strategically when it seizes terrorist assets, buys commercial satellite imagery, hires private security forces, threatens sanctions, and engages in thousands of other war-related acts every day.
An important and nuanced statement, from someone with a lot of credibility on the question. It will be interesting to see what kind of response it provokes among the take-no-prisoners set.