The Landing Zone | 5.14.15
By Alan W. Dowd

U.S. troops and intelligence agents aren't the only ones waging the war on terror. An army of lawyers also has been drafted into the fight. Regrettably, they haven't been as effective as their camouflaged counterparts. In fact, many of the legal maneuvers have been less than helpful; some have been downright counterproductive.

Exhibit A

To be sure, lawyerly encroachment into the battlespace began long before the war on terror. But it really gained momentum in the 1990s. In a revealing study on legal constraints and national security, George Mason University law professor Nathan Sales cites an anecdote from Operation Desert Fox in 1998. A U.S. Air Force general recalls how a JAG officer "was standing right behind me" during the four-day air campaign targeting Saddam Hussein's WMD assets. Columbia University political scientist Richard Betts points to the "remarkably direct role lawyers played in managing combat operations" in Kosovo in 1999, calling it "unprecedented" and concluding that "NATO's lawyers thus became, in effect, its tactical commanders."

Exhibit B

The 9/11 Commission Report is peppered with references to, and examples of, lawyers constraining or sidetracking efforts to share information between agencies and kill Osama bin Laden. For example, in the late 1990s, after almost a decade of terrorist attacks against U.S. targets, bin Laden was a known enemy of the United States. CIA operations teams advocated killing the terror mastermind, but their plan "drew sharp criticism from lawyers throughout the executive branch," Sales explains. "The lawyers favored a mission in which a team of CIA-trained Afghan surrogates would kidnap bin Laden and return him to the United States to stand trial." Pre-9/11, government lawyers would countenance the killing of bin Laden only if "his death was the accidental byproduct of an otherwise legitimate capture attempt."

As Michael Scheuer, who led the CIA's bin Laden unit, concludes, "The U.S. intelligence community is palsied by lawyers. When we were going to capture Osama bin Laden, for example, the lawyers were more concerned with bin Laden's safety and his comfort than they were with the officers charged with capturing him."

More than a year before the 9/11 attacks, as The New York Times reported in 2005, "a small, highly classified military intelligence unit identified Mohammed Atta and three other future hijackers as likely members of a cell of al Qaeda operating in the United States" and recommended that the information be shared with the FBI. But that recommendation "was rejected and the information was not shared," apparently because of how someone interpreted the law relating to intelligence-collection operations and legal protections for U.S. citizens and green-card holders. Importantly, "That protection does not extend to visa holders," which is what Atta was.

Exhibit C

In October 2001, just days into combat operations in Afghanistan, a CENTCOM JAG officer blocked U.S. forces from attacking a convoy carrying Taliban leader Mullah Mohammed Omar. In so doing, that military lawyer arguably ensured a longer war and perhaps more American casualties. Fourteen years later, the man who opened Afghanistan to al Qaeda is still at large, still rallying the Taliban against the United States.

Exhibit D

Reports that some federal agencies were pushing the military to treat captured terrorists like suspects in a stateside criminal case prompted Sen. Jeff Sessions (R-Ala.) to propose legislation to "preempt any federal executive, that is presidential, requirement that our troops in the field, in Afghanistan and Iraq, read Miranda warnings to al-Qaeda terrorists whom they capture."

In a similar vein, when pirates are captured by the U.S. Navy off the Horn of Africa, sailors or Naval Criminal Investigative Service agents administer a version of Miranda rights, informing these hostis humani generis—"enemies of all mankind"—that they have the right not to talk to anyone, a right to be taken back to their holding area and a right to counsel.

Exhibit E

According to a New York Times review, Naval aviators, keenly aware of the microscope they were under in Afghanistan in 2009-10, "worked with military lawyers" to plan and conduct non-lethal responses.

Exhibit F

Army Times reported in 2012 that when Marines in Afghanistan's Helmand province saw a "known insurgent...digging a hole for a homemade mine beneath a well-traveled dirt road," they had to call battalion headquarters to seek and receive "what military lawyers call ‘positive identification'" before they could launch an operation against the insurgent.

After U.S. snipers neutralized the threat, civilians placed the wounded insurgent onto a tractor. The young Marine in charge of the operation then "ordered his snipers to fire at the tractor's engine block, to disable it until a Marine foot patrol could arrive to detain the man." But what the military lawyers saw in their after-action review was "civilians conducting a medical evacuation...firing on them was a potential war crime."

The incident triggered months of investigations and cost the Marine his post as unit commander.

The unintended consequences of these legal intrusions onto the battlefield can be deadly. As rules of engagement (ROE) grew more restrictive in Afghanistan, according to Army Times, "Evidence suggests war fighters began to overcompensate—in some cases becoming exceptionally cautious."

Indeed, a 2013 Washington Times report concluded that there is a link between stricter ROEs and increased troop deaths. Straightjacket ROEs, which limited airstrikes in Afghanistan in 2009-10, "created hesitation and confusion for our war fighters," according to Wayne Simmons, a U.S. intelligence officer who worked inside NATO headquarters in Kabul.

The Times detailed how "A unit engaged in combat on the ground and requesting airstrikes must convince commanders—and lawyers—back at headquarters that no civilians would be harmed."

For example, Army Capt. William Swenson, who was awarded the Medal of Honor, "repeatedly called headquarters to request airstrikes but was denied for hours, as more than 150 Taliban fighters surrounded and attacked his position." Understandably, Swenson is no fan of lawyers looking over the shoulders of warriors engaged in combat. "It's not JAG responsibility to interject to say, ‘Hey, we are concerned that you're going to hit a building," Swenson told the Times. "This is combat. I can't be perfect."

Department of Defense Attorneys

We shouldn't blame JAG officers for this legal minefield. In most cases, they are saluting and performing their assigned mission with skill, just like the troops downrange. But we should take a hard look at the system under which military lawyers operate and under which U.S. troops are expected to defend us.

"The Pentagon has become home to more than 10,000 lawyers," former Defense Secretary Don Rumsfeld observes in his recent book Rumsfeld's Rules. "The Pentagon has more lawyers than the Department of Justice." He notes that "A lawyer's job, by definition, is to advise which courses of action are legal. Before long, in the interest of ‘protecting' the department, lawyers can become barriers against taking action at all... I get concerned when lawyers start making decisions for policymakers or for those on the firing line, rather than giving legal advice to them."

Love him or hate, Rumsfeld is right about this.

Sales, for instance, has discovered that certain JAG officers "have begun to review military operations not just for their legality, but for their prudence. Judge advocates sometimes recommend against strikes that are in fact lawful but that are thought to be undesirable for other reasons...One military lawyer has argued that, when deciding whether to approve a mission, the JAG corps should weigh ‘moral, economic, social and political factors' in addition to purely legal considerations. That expanded role is said to be necessary because American Armed Forces should not just refrain from violating the laws of war. They should also refrain from any lawful action that adversaries might falsely denounce as a war crime."

Think about that for a moment: This military lawyer is advising fellow military lawyers that U.S. forces—in a time of war—should avoid taking even a "lawful action" that the enemy "might falsely denounce as a war crime." Given that the enemy could call anything a war crime—and has done exactly that in the Vietnam War, the Gulf War and the war on terror—this approach takes virtually everything off the table and effectively disarms our troops. It is the very definition of self-defeating.

Indeed, the war on terror provides a striking juxtaposition: on one side, the very definition of lawlessness, ruthlessness and barbarism; on the other, American troops, drone operators and intelligence operatives trying to defend the American people with one eye on the law books and one hand tied behind their backs by the lawyers.

ISIS leader Abu Bakr al-Baghdadi has called on his followers to "erupt volcanoes of jihad everywhere" and "destroy the idol of democracy." Osama bin Laden once bragged, "We do not differentiate between those dressed in military uniforms and civilians." U.S. troops do differentiate between civilian and combatant, and they are going to great lengths to prevent the loss of civilian life while trying to defend democracy.

Just consider the way the enemy defines success and the way the U.S. military reacts to failure: For Baghdadi's followers and bin Laden's heirs, success is measured by the number of innocents maimed and murdered. For the U.S. military, success is measured by the number of innocents saved, and failure results in bombing pauses, investigations, apologies, courts-martial and dishonorable discharge.

In one sense, the impulse to use the force of American law to constrain and restrain America's warriors is understandable, even laudable. We are a nation of laws. Our system of government is grounded in the rule of law, in civilian control over the military, in placing limits on power. We rely on lawyers to interpret what the law means—and how, where and when it should be applied.

But in a broader sense, the trend toward larding up battlefield decision-making with legal second-guessing is shortsighted, self-defeating and dangerous. U.S. troops shouldn't have to fight legal battles before, during or after fighting the enemy.

What too many policymakers fail to grasp is that the law only protects those of us who respect it; the law does nothing to protect us from those who flout it, hate it and trample it. The only thing that protects us from them is force—or more accurately, those willing to use force on our behalf. As Churchill is credited with saying, perhaps apocryphally, "We sleep soundly in our beds because rough men stand ready in the night to visit violence on those who would do us harm."

Regardless of its source, the words ring true. It is warriors, not lawyers, who protect us from our enemies.

The Landing Zone is Dowd’s monthly column on national defense and international security featured on the American Legion's website.