“The first thing we do, let’s kill all the lawyers,” said Shakespeare in “Henry VI, Part 2,” though we need not heed his advice literally.
Since the United Nations came into being, some politicians, lawyers and organizations have pushed the notion that wars can be clean, if lawyers outrank political leaders, army generals and field commanders in the trenches and in the war rooms.
Yet the concept of a clean, surgical war is a foolish idea held by people who play video games, never were in a war, nor ever really studied the history of combat.
“War is hell,” observed Gen. William Tecumseh Sherman, a brilliant general who knew war well. He wanted it to end — quickly. Sherman, along with General Ulysses S. Grant, ended the bloodiest war in American history, the Civil War.
Grant and Sherman did what President Abraham Lincoln had begged them to do — bring victory for the North over the South. This was the same Lincoln, a man of great mercy, who suspended the right of habeas corpus — in order to win as fast as possible.
Sherman starved the South and half-starved his own men, foraging off the land as the North’s army carved its way through Georgia and the Carolinas. When the South surrendered, Sherman brought in food. Lincoln declared “with malice toward none, charity towards all.” After surrender. No time-outs for Ramadan or the Red Cross.
Another American president who knew war and history well was Harry Truman, who decided to drop two atomic bombs on Japan for the same reason that Sherman burned half of Georgia: It brought the war to a swift end and saved lives.
In his papers, Truman says bombing Hiroshima and Nagasaki was the hardest decision of his life. He made it as a God-fearing man, on moral and strategic grounds, using common sense, not a team of lawyers.
Truman saved hundreds of thousands of lives (American and Japanese) by forcing Japan’s surrender without a full ground invasion of the Japanese home islands.
Since Truman’s era and the start of the U.N., lawyers have invaded our lives, even in military planning and execution. They debate when force is proportional or not — the kind of thing that is opposed by military thinkers, like Clausewitz, who want disproportional force to achieve quick victory.
Waging war with lawyers has progressed to where some armies have full-time legal escort teams, especially when fighting terrorist groups such as Hamas and Hezbollah, who put rockets in schools or hide behind people taken hostage as “human shields.”
The media often recite “international law prohibits torture” or “the Geneva Convention bans” striking terrorists protected by “human shields,” Actually, what we are hearing is one lawyer’s view or one group’s view about “international law,” torture, interrogation or “human shields.”
Not all lawyers, terrorists or human shields are equal. Hamas, which rules Gaza, calls for people to stand on the roofs of houses used as launching bases for rockets. Some Gazans have done so voluntarily.
Professor Yoram Dinstein of Tel Aviv University wrote that volunteer human shields can be attacked because “civilian protection can be lost if the person who purports to benefit from it crosses a red line by directly participating in hostilities.” In blunt terms: “The bullet that kills him may lawfully have his name engraved on it.”
So there is also more than one view about human shields and treating captured terrorists, because, unlike the Ten Commandments, there is no single monolithic document etched in stone called “international law.”
Attorney General Eric H. Holder Jr., whose firm defended terrorists and who has personally freed convicted Puerto Rican terrorists, feels terrorists should have the same rights as regular U.S. citizens involved in criminal cases, such as public civilian trials and the right to an attorney before answering questions.
Many other lawyers think that terrorists do not even merit the rights of prisoners of war, because they carried out operations while not in uniform and because they deliberately seek to hurt civilians. Many lawyers feel, therefore, that the Geneva Accords allows terrorists to be summarily tried and executed like saboteurs or spies.
Sadly, many “legal critiques” about fighting terrorism are not unbiased or scholarly opinions, but instead political views from nongovernmental organizations whose research budgets are dwarfed by their public relations budgets and political agendas.
True, wars — like most human acts — should be aimed at a just end and be fought with just means. This idea begins with the Bible’s injunction against cutting down fruit trees of a besieged city, and it continues through thinkers like Augustine, Aquinas and Maimonides.
It is going too far, though, when the media or prominent nongovernmental organizations, such as the American Civil Liberties Union or Amnesty International, say their legal teams will determine when “too much force is used,” when an artillery barrage is “just” or “proportional” and when it is “unjust” or “disproportional.”
Most of us nonlawyers realize that being a lawyer or running an nongovernmental organization does not make someone a great moral compass, or a great military strategist or tactician. We understand that war is hell best ended by defeating a hellish terrorist enemy quickly.
Michael Widlanski is the author of “Battle for Our Minds: Western Elites and the Terror Threat” (Threshold, 2012).