The Pentagon and ‘lawfare’

The Pentagon didn’t quite call it “lawfare,” but there it was, amid the bureaucratese of this year’s National Defense Strategy, a candid reference to the ill-intentioned use of international law and the courts to harm American interests. As it reads: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” We’ve finally come around, then, after much talk of “asymmetric warfare,” to officially defining one type of asymmetric warfare as the use of law for nefarious ends. Better to talk turkey about “lawfare” — especially in an important document like the NDS, which lays the groundwork for the 2005 Quadrennial Defense Review — than to pretend it doesn’t ever happen. It does.

It’s not so much the activists and lawyers that the Pentagon is worried about as the people who spin them. For example, U.S. officials know al Qaeda briefs its cadres on U.S. law to prepare them in case of capture. This isn’t just a matter of detainees either: During the Iraq war, too, Saddam Hussein’s forces intentionally ensnared civilians in combat and sought to portray coalition forces as unlawful attackers. The Iraqis knew Westerners observe the laws of war and condemn attacks on civilians, so they figured — correctly — that portraying American and British forces in that light would be a uniquely effective defensive tactic. As it happened, Saddam was routed and the plans were exposed. But the lesson any spin-doctor could tell you, and others undoubtedly learned, was that perception matters.

That’s not to say Westerners are always innocents in this game. Last year, for instance, the International Court of Justice grossly distorted Article 51 of the U.N. Charter — the guarantee of self-defense for states under attack — in its opinion condemning Israel’s security fence. Specifically, it claimed that Article 51 applies only when states are the attacker. Such reasoning would seem to require calling the U.S. war against the Taliban illegal. Clearly, these are not the people we want making our security decisions.

Some, particularly on the left, are appalled at the Pentagon’s language in the NDS. They are confusing wishes with facts. The sad truth is that our enemies know we’re a law-abiding people, and that this at times can make us vulnerable. Better to admit it than pretend every well-intentioned prosecutor at the International Criminal Court has all the relevant information.

We’re pleased and surprised to see acknowledgement of this cropping up in what, by all accounts, is a consensus document. Maybe Secretary of Defense Donald Rumsfeld’s refusal to sugar coat is rubbing off after all.