The Legal Bureaucracy and the Law of War
Kaye, David, The George Washington International Law Review
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.1
The political scientist James Q. Wilson asserted that "[w]ar is the greatest test of a bureaucratic organization."2 The point surely applies for that subset of warfighters-and those throughout the government who support them-who are responsible for the provision of legal advice. War tests lawyers much as it tests civilian and military decisionmakers. The legal questions are often posed in crisis-like settings, pitting law against power in a uniquely direct way. They may involve questions concerning the security of Americans; they can go to the core of how we perceive ourselves and our nation's values. It may be that the very public nature of today's challenges in the "war on terror" distinguishes this current round of tests from previous ones. Indeed, it is hard to imagine another time in U.S. history when legal advice has been so much blamed for the conduct associated with an armed conflict.3
Yet quite apart from the substance of the legal advice rendered to policymakers, some fundamental mechanics should be at work in the legal bureaucracy in wartime. My interest here is not so much with the substantive advice that government lawyers provide in order to police the government's prosecution of armed conflict. What is more interesting to me is how U.S. government lawyers police themselves. A plainer way to put this is: How do government lawyers ensure that decisionmakers get the best possible legal advice, particularly when there is dissension among the lawyers?
There are several layers of oversight when it comes to the legal issues associated with armed conflict. Outside the executive branch are the courts and Congress. While Congress has been largely excluded (or has excluded itself by inaction) from the rulemaking associated with armed conflict since 9/11, the courts have stepped in with increasing frequency.4 Yet the vast majority of legal issues dealing with armed conflict are addressed and resolved by the executive branch, acting alone. Legal advice within the executive branch often takes the field as the final word on the law for purposes of the conduct of war. Within the executive branch, the Uniform Code of Military Justice governs actions of members of the armed services. These judicial and political aspects of oversight are crucial, but they are essentially post-decisional mechanisms for ensuring executive branch compliance with military law or the law of armed conflict. Instead of focusing on these political and judicial mechanisms, I want to look at the structure of the legal bureaucracy within the executive branch.
I have two principal aims. First, I want to describe some key elements of the legal bureaucracy that support the military efforts of the United States in today's armed conflicts. In this first section I will say a bit about this bureaucracy and raise a few issues that go beyond the strict legal bureaucratic structure. I then want to raise several questions about the nature of the wartime legal bureaucracy's functions. Among them: Who or what are its clients? The military? The Secretaries of State and Defense? The President? The public at large? All of these? Are the lawyers' normal professional responsibilities in any way modified for government attorneys advising on use of force and issues of international humanitarian law (IHL) or the law of armed conflict? What is the nature of these responsibilities? How does this bureaucracy ensure that the best possible advice is provided to decisionmakers? At what point, if at all, does responsibility for such advice kick in? And if it does, what is the nature of lawyers' accountability in armed conflict? …