The Problem With Military Lawyers - The American Spectator | USA News and Politics
The Problem With Military Lawyers

In a thought-provoking article in the National Interest, the Cato Institute’s Justin Logan contends that U.S. foreign policy is run by too many lawyers (full disclosure — I am a lawyer), and suggests that we’d have a better foreign policy if there were more historians and political scientists in senior foreign policy positions. Social science and social scientists, Logan argues, have much to offer policy-makers regarding analyses and possible solutions to foreign policy issues and problems.

Logan notes that America has benefited in the past from policy-making social scientists such as Henry Kissinger, Brent Scowcroft (who was also a general), Jeane Kirkpatrick, and Robert Gates. And he further highlights the past insights and sound advice (much of it ignored, presumably by lawyers) provided by such international relations scholars as Hans Morgenthau and Kenneth Waltz. Logan also mentions that many academic scholars opposed the Iraq War and the surge in Afghanistan. He concludes by noting that “scholars and historians haven’t gotten everything right, but their voices are underrepresented at the principals level in Washington.”

Logan neglects to mention, however, that much of academia these days views the United States as a racist imperial power that is largely responsible for the world’s problems from climate change to global inequality. There are few academics today that would be comfortable promoting the hard-headed realpolitik views of Hans Morgenthau or the strident anti-communist views of James Burnham.

But regardless of the anti-American views of many in academia, Logan is aiming at the wrong target. There are too many lawyers affecting U.S. national security, but the problem is not at the State Department, but rather at the Pentagon. Since the first Gulf War, as Craig Jones, a lecturer in political geography at Newcastle University, recently noted in West Point’s online journal Articles of War, military lawyers have played an increasingly vital role in targeting operations during wartime, and such legal advice “is transforming the way that contemporary war is fought and understood.”

The idea of involving lawyers in wartime operational decisions was one of the harmful legacies of the Vietnam War. Jones writes that an Army investigation into the My Lai massacre determined that Army personnel were not properly trained in the laws of war. That led, according to Jones, to the Department of Defense’s Law of War Program, “which . . . placed legal advisers at the front and center of military operations, including . . . the drafting of the Rules of Engagement (ROE) and law of war instruction.”

Jones notes that it was during the First Gulf War that “legal advisers were first systematically involved in providing advice on aerial targeting operations.” “From Central Command headquarters in Tampa to underground bunkers in Riyadh,” Jones continues, “legal advisers closely vetted pre-planned targets in Iraq, setting a precedent that would become de rigueur in the post 9/11 era.” “[T]oday’s legal advisers,” Jones writes, “enjoy unprecedented access to classified materials and are involved in varying degrees in the stages of targeting from planning through execution to post-strike assessment and investigation.”

Jones calls this development “a revolution in military legal advice” that has become routine during wartime operations,” noting that in World War II military lawyers were “bit-players in the background of military operations.” Jones’ research suggests that military lawyers “have an increasingly outsized impact on commanders’ decision making” during wartime operations. Legal advisers, therefore, shaped military operations in Iraq and Afghanistan, and in smaller operations, in ways that would have startled commanders in World War II.

The other area where lawyers are increasingly affecting combat operations is the Rules of Engagement. David French, himself a lawyer, wrote an important piece in National Review in 2015 entitled “How Our Overly Restrictive Rules of Engagement Keep Us From Winning Wars.” French noted instances in Iraq and Afghanistan where attacks on the battlefield had to be screened by lawyers who effectively determined whether those attacks would take place because of the risk to civilians. And any commander who refused to follow the legal advice risked future discipline, including possible prosecution for “war crimes.”

French then imagined if the United States fought World War II like that:

Imagine Patton’s charge through Western Europe constrained by granting the SS safe haven whenever it sheltered among civilians. If you can imagine this reality, then you can imagine a world without a D-Day, a world where America’s greatest generals are war criminals, and where the mighty machinery of Hitler’s industrial base produces planes, tanks, and guns unmolested. In other words, you can imagine a world where our Army is a glorified police force and our commanders face prosecution for fighting a real war. That describes our wars in Iraq and Afghanistan.

What military lawyer would have sanctioned the bombing of Germany’s cities where war supplies were manufactured or transported? What military lawyer would have allowed General Curtis LeMay and his air forces to firebomb Tokyo? What lawyer would have agreed to the bombing of inland targets in Normandy that killed many innocent French civilians ahead of the D-Day landings? What lawyer would have sanctioned the dropping of two atomic bombs on Japanese cities?

The role of the lawyer as a wartime operational adviser has become ingrained in the U.S. armed services. I saw this first-hand while attending a conference at the Naval War College a few years ago. In a breakout session involving civilians and military officers, I raised the topic of lawyers’ outsized involvement in military targeting operations, and every officer in the room affirmed the necessity and importance of having lawyers review military targeting operations during wartime.

Lawyers have been responsible for efforts to make war humane. But history teaches the truth of Union Gen. William T. Sherman’s observation that “War is cruelty; you cannot refine it.” Lawyers study legal treatises, but commanders study Clausewitz. The great Prussian military theorist wrote in On War, that “Kind-hearted people might . . . think there was some ingenious way to disarm or defeat an enemy without too much bloodshed, and might imagine this is the true goal of the art of war. Pleasant as it sounds, it is a fallacy that must be exposed: war is such a dangerous business that the mistakes which come from kindness are the very worst.” And again: “It would be futile — even wrong — to try and shut one’s eyes to what war really is from sheer distress at its brutality.”

As Gen. Douglas MacArthur once said: “War’s very object is victory, not prolonged indecision. In war there is no substitute for victory.” Military lawyers are not to blame for the prolonged indecision of America’s wars in Iraq and Afghanistan. It is the political and military leaders who have placed lawyers in the chain of operational decisions who are at fault. Justin Logan should aim his criticism there.

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