"Lawfare" in the War on Terrorism: A Reclamation Project
Waters, Melissa A., Case Western Reserve Journal of International Law
In the nine years since Major General Charles Dunlap first coined the term, "lawfare" has strayed considerably from its non-partisan, ideologically neutral origins. Nowhere is this clearer than in the war on terror, where the term is often used as a pejorative label by political pundits who decry as "lawfare" virtually any attempt to apply the rule of law to the conduct of the United States' war on terror. This essay considers the prospects for reclaiming "lawfare" as a useful term in the war on terror. It explores various conceptions of the term, noting that a more ideologically neutral usage--lawfare as "critical self-reflection "' on the relationship between law and war--is gaining ground in both the scholarly and public spheres. It also argues that American lawyers and judges have a critical role to play in reclaiming the rhetorical high ground from pundits who attempt to equate the work of those involved in adjudicating terror cases with a shadowy form of "lawfare" engaged in by America's terrorist enemies.
On rare occasions in the evolution of the English language, a new word or concept so perfectly captures an emerging phenomenon that it catches fire. Such is the case with the term "lawfare." Introduced into the military lexicon by Major General Charles Dunlap in 2001, (1) "lawfare" quickly captured both scholarly and popular imaginations. References to lawfare soon found their way into major media outlets, (2) and the concept even won an indirect--and highly controversial--mention in President Bush's 2002 National Security Strategy. (3) Just nine years after Dunlap first introduced the term, a Google search for "lawfare" reveals an astounding 84,600 entries, and at least two weblogs are devoted exclusively to lawfare. (4)
Like a great trademark that eventually becomes a victim of its own popularity, however, "lawfare" now runs the risk of losing its utility, as its original meaning becomes obscured and distorted over time. Dunlap's concept of "lawfare" was straightforward: He defined it as "the use of law as a weapon of war," (5) later clarifying that it involved "a strategy of using--or misusing--law as a substitute for traditional military means to achieve an operational objective." (6) As he notes in this symposium, Dunlap did not intend the term to have a pejorative meaning. Instead, he was introducing an ideologically neutral concept, whose goal was to capture an important emerging phenomenon and to encourage debate among military and legal strategists within the U.S. armed forces as to how best to confront and engage that phenomenon. (7) For Dunlap, lawfare is "simply another kind of weapon, one that is produced ... by beating lawbooks into swords." (8) Moreover, as Dunlap convincingly demonstrates, lawfare is a weapon that is not only wielded by America's enemies, but also by the U.S. government itself in its global war on terror. (9)
Unfortunately, as lawfare has taken hold in the popular lexicon, it seems to have lost much of the ideologically neutral cast of Dunlap's original conception. Nowhere is this clearer than in the use of "lawfare" in the debate over the war on terror. In this context, to put it mildly, lawfare has become a loaded term. The Wall Street Journal, for example, has used "lawfare" as a pejorative label to discredit the American Civil Liberties Union (ACLU) and other non-governmental organizations (NGO) who have questioned the legality of the Obama Administration's treatment of Guantanamo detainees and other terrorist suspects. (10) Conservative political pundits have jumped on the bandwagon by decrying as "lawfare" virtually any attempt to apply the rule of law to the conduct of the war on terror. In so doing, they have not only condemned the actions of NGOs like the ACLU, but also the actions of judges hearing detainee cases and the military lawyers who make up the Guantanamo defense bar itself. (11)
Clearly, "lawfare" in the war on terror has strayed considerably from its non-partisan, ideologically neutral roots. …