The Landing Zone | 5.14.15
By Alan W. Dowd
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.
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
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
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.
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.
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."
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.
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.
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.
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.
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.
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."
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
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.
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.
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."
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.
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.
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
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.
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.
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.
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.