Power and Constraint: The Accountable Presidency After 9/11 by Jack Goldsmith
5th October 2012
Goldsmith also presents two theses. The first is that pushback against Bush’s anti-terrorism policies produced a consensus about what tools the President can use in fighting terrorism, which explains why President Obama retained so many of Bush’s policies as they stood in 2009. The second is that we should be relatively sanguine about the process that produced the current consensus, and about that consensus itself.
…
“Lawfare” refers to the relatively recent phenomenon of law and lawyers affecting the conduct of war. Lawyers, Goldsmith shows, are now at the heart of the military decision-making process. They not only review operational plans in advance, but also participate in the field, providing counsel to commanders regarding proper targets, for example.
…
Goldsmith finds that “lawfare” constraints have impeded our military operations and increased the number of U.S. casualties. They even enabled Mullah Omar, the leader of the Taliban, to escape after a lawyer dissuaded the military from striking a building because civilians were probably present. As Goldsmith explains, “[S]urrounded by law and under the gaze of many potential retroactive critics, it is entirely rational for soldiers up and down the chain of command to hesitate before acting.” Such hesitation is sometimes incompatible with waging effective warfare.
October 5th, 2012 at 13:31
“lawfare” – Thanks, Tim. That should keep me from sleeping for the foreseeable future.