Jack Goldsmith Comes Out Against Concept of “Lawfare”

by Peter Spiro

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.

http://opiniojuris.org/2011/09/08/jack-goldsmith-comes-out-against-concept-of-lawfare/

8 Responses

  1. Response…
    There is an underlying assumption that those who want their government to comply with the law are enemies of the government (a government, by the way, that is supposed to be faithfully executing the law – for example, that assumption that there is a “war” (“battle,” “camp”) occuring merely because someone opposes an executive view of the law and, egads, does so in a court of law.  To claim. as supposed revelation, that government lawyers should participate in such a war misses the point.
    From the view of our Founders and Framers, such an assumption is clearly unacceptable and contrary to fundamental American values concerning a government of law – that no one, not even the President, is above the law!  A true “conservative” should try to conserve those fundamental values and not oppose them.

  2. The Founding Fathers were also very concerned about how the laws are produced and the quality of the decisions issued by its supposedly impartial interpreters.

  3. Response…
    Of course, that’s why, for example, decisions and conduct of Executive interpreters must be subject to judicial review as are the decisions and conduct of other interpreters.  In The Paqueta Habana, the Court disagreed with the Executive view of the laws of war and ruled against the Executive views set forth in its brief that attempted to defend the conduct of an Admiral and two ship captains in the theatre of war, at the height of Eecutive power, abroad, against aliens – the Executive had wrapped the flag around the Admiral’s actions, but lost.
    And if you mean the judiciary, why yes, they must attempt to discover the generally shared meaning or ordinary meaning of terms found in treaties and customary international law and the object and purpose of treaties, and must receive help in doing so from lawyers who are litigants as well as friends of the court.

  4. With all due respect to Jack Goldsmith, his statement is like that of the burglar found in your kitchen saying he gives up crime.  I think of all those people inside and outside the government who are ordinary Americans loyal to this country who calmly as well as screamed at the “smart set” for the naively clever and even then only by half legal analysis being done in our names by people who should know better.  What about the wreckage to our troops in future wars from all the nonsense that was argued?  What about facing that soldier’s family?  What about facing the families of soldiers killed in the war started on false pretenses in Iraq?  And what about those wounded soldiers and their families?  Does Jack seriously think that a “my bad” is going to do it?

    No, the “I am sorry” moment is way too late.  Rather than confess here or in the press, go see John Durham and lay it all out to him. And then John Durham should do his job as a prosecutor.

    That clever analysis about how people could be transferred to torture outside of Iraq supposedly in conformity with Geneva remains your legacy brother Jack.  You wrote it, you own it.

    Best,
    Ben

  5. Guess he read (or finally understood) his HLS colleague David Kennedy’s book, “Of Law and War.” (2006)   http://press.princeton.edu/titles/8263.html

    “Modern war is law pursued by other means. Once a bit player in military conflict, law now shapes the institutional, logistical, and physical landscape of war. At the same time, law has become a political and ethical vocabulary for marking legitimate power and justifiable death. As a result, the battlespace is as legally regulated as the rest of modern life. In Of War and Law, David Kennedy examines this important development, retelling the history of modern war and statecraft as a tale of the changing role of law and the dramatic growth of law’s power. Not only a restraint and an ethical yardstick, law can also be a weapon–a strategic partner, a force multiplier, and an excuse for terrifying violence.”

  6. I guess I don’t get how “lawfare” is something new (although admittedly I haven’t paid much attention to all the recent hoopla).  During the Cold War the superpowers pursued their agendas through proxy wars in the developing states and through proxy battles over law (including IHL) at the UN, the ILC and other places.  What was the battle over the optional protocols to the Geneva Conventions if not “lawfare”?  How about the attempts by Soviet client states to make apartheid a crime against humanity?  Or attempts to make the use of nuclear weapons a crime in the Draft Statute for an International Criminal Court at the ILC?  There are probably other examples, but that’s what comes to mind while I sit here.

    Perhaps the difference is that now these attempts are being pushed by NGOs, IOs and domestic interest groups rather than states?  If so, that seems to be simply a logical result of the increasing prominence of NGOs and IOs since WWII.

  7. Went over to lawfareblog and read the rest of the mea culpas.  I simply love the “mistakes were made” meme by the protagonists of what was put in place.  Tell Charlie Graner and the others who did their bidding that it was just “mistakes were made.”  Crimes were committed and our system should have the ability to charge high-level persons for those crimes.  The Goss ‘oversight’ for example – what a joke!  The relentless effort to get out from under what people put in place continues by changing the past to fit the present.  Reminds me of what the Soviets use to do in airbrushing out Trotsky from photos.
    Best,
    Ben

  8. It seems obvious. States either submit to law by giving individuals the opportunity to sue them, or they might expect that individuals will blow up things and people. Technology makes this a piece of cake. States cannot do both things with a straight face, complain about terrorism and at the same time refuse individuals the opportunity to force states with judicial means to do or refrain from certain things.

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