Wednesday night, by a vote of 90-9, the Senate approved an amendment to the Defense appropriations bill offered by Senator John McCain that would prohibit the use of cruel, inhuman, or degrading treatment of any detainee in U.S. custody. It also mandates that the U.S. Army Field Manual be regarded as the authoritative guide for all military personnel concerning which interrogation techniques are lawful and which are not.
The amendment, which is opposed by the Bush Administration and by Duncan Hunter, who chairs the House Armed Services Committee, must survive a House-Senate conference committee to have even a chance of becoming law. Furthermore, President Bush, who has yet to veto a bill, has threatened to veto the entire Defense appropriations bill if it comes to him with the McCain amendment attached.
Has Senator John McCain, who flew combat missions in Vietnam and was held by the North Vietnamese in the Hanoi Hilton, become an enemy combatant? Sadly, yes--at least according to those who espouse the concept of "lawfare."
What is lawfare? According to the Council on Foreign Relations, it is a "strategy of using or misusing law as a substitute for traditional military means to achieve military objectives."
Like terrorism, lawfare is a form of asymmetric warfare in which the weak, seeking a comparative advantage that cannot be found on the traditional battlefield due to the overwhelming military superiority of their opponents, resort to unconventional means of waging war. But while terrorists attempt to sow fear and destruction by blowing themselves up, their allies on the lawfare front do the same thing by filing motions and passing amendments requiring respect for the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment. Rather than "Death to America!" the lawfare warrior announces his presence with the words, "May it please the Court."
Absurd? Absolutely. But that hasn’t prevented the concept of lawfare from being carried from the fevered imaginations of wingnuts to the halls of the Pentagon and the West Wing.
In March of this year, a new edition of the National Defense Strategy for the United States of America was issued by the White House. In its description of security threats facing the United States there was this line: "Our strength as a nation will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism."
I teach a course called "International Organizations and Law." My course was transformed by that statement in the National Defense Strategy. It went from being a routine (although richly rewarding and hugely entertaining) Political Science offering to being a training ground for subversives. (I've just informed the class of this fact and have told them that they can still get out if they want to.)
Just think, if I had assigned The Anarchist's Cookbook along with Inside the UN and Carter, Trimble, and Bradley's International Law, we'd have the anti-American trifecta.
But maybe the wingnuts are on to something. There is, after all, a certain logic--and even some historical continuity--to the view that lawfare is indeed something to worry about.
Can law be used as a political weapon? Can it be used to weaken one’s political opponents? Ask Bill Clinton. Indeed, there's a delicious irony in the fact that some of those who most fear the use of lawfare in the war on terror are the same ones who perfected it in the war on Clinton.
But (to get back to Senator McCain and the other 89 senators who voted to end the deliberate ambiguation of torture) we're witnessing lawfare against the Bush administration, aren't we? Yes, and it's about time, because those who fight on the side of law are defending American values.