A Brief History of the Term and the Site

Lawfare went live on September 1, 2010. Ben’s first post set forth our general aims and, relatedly, our reasons for selecting our title:

Welcome to Lawfare, a new blog by Robert Chesney, Jack Goldsmith, and myself. For those readers familiar with our prior writings, our subject will come as no surprise: We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. We will, I am sure, construe this subject broadly to include subjects as far-flung as cybersecurity, Guantánamo habeas litigation, targeted killing, biosecurity, universal jurisdiction, the Alien Tort Statute, the state secrets privilege and countless other related and not-so-related matters. . . .

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the reality that America remains at war with itself over the law governing its warfare with others—as well as the law governing its own national security strategy. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.

The focus of Lawfare’s coverage over the years has evolved along with U.S. national security priorities. At its founding, post-9/11 debates still loomed large: were the Bush administration’s aggressive actions—including its expansive use of war powers, its detention and interrogation program, and its surveillance and data collection programs—justified? It was already clear that 9/11 had been paradigm-shifting; it redefined the legal framework and policy focus of U.S. national security to focus on what was then known as the “global war on terrorism.” The Obama administration began with executive orders to close Guantanamo and shut down the CIA’s detention and interrogation program, but went on to maintain several Bush-era policies and practices—sometimes due to congressional or legal barriers, and sometimes not. Over those eight years, a kind of institutional consensus on the Bush-era debates emerged, albeit not without its detractors. New questions also emerged, including those relating to drones, cybersecurity, and climate change.

But with the election of Donald Trump, and throughout his presidency, there came a series of seismic shifts in national security strategy. The focus now was on Russian election interference and information operations, attacks on Muslims and the press, public health, and great-power competition. And there was, as Lawfare’s co-founders put it, a “shocking emergence of foundational, domestic security concerns having to do with the fragility of bedrock elements of the country’s political order—including but not limited to rising domestic extremism on the right, the abuse of presidential power, serious and not-serious talk about a “deep state,” and the involvement of foreign actors in the political system.”

A Note on the Term "Lawfare"

Since the term “lawfare” is controversial in some circles, and subject to a variety of interpretations and uses, a bit more explanation about our understanding of the concept is in order. Going back to the 1950s, the term has frequently been used in contexts wholly unrelated to national security, ranging from divorce law to courtroom advocacy to colonialism to airfare for lawyers. But its most prominent usage today very much concerns national security. Its first use in this context, seems to have appeared in "Unrestricted Warfare," a military strategy book written in 1999 by two officers in the People’s Liberation Army who used the term to refer to a nation’s use of legalized international institutions to achieve strategic ends. More significantly, however, the term “lawfare” was popularized in the modern parlance in an influential 2001 paper by then-Air Force Colonel (and later General) Charles Dunlap, who is now the Executive Director of Duke Law School’s Center on Law, Ethics and National Security. As Jack explained in his first post on this blog:

General Dunlap first used the term in a 2001 paper that came on the heels of the 1999 Kosovo campaign, in which both lawyers and public debates about the legality of the war figured prominently. “Is lawfare turning warfare into unfair?,” he asked, and his basic answer was “Maybe.” General Dunlap defined “lawfare” as the “use of law as a weapon of war,” which he described as “the newest feature of 21st century combat.” . . . General Dunlap subsequently wrote many more essays about “lawfare,” and in part (I think) to rebut misinterpretations or misappropriations of his work, he expanded the definition of the term to mean “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.”

At the time we launched this blog, “lawfare” in some quarters carried solely negative connotations. That is, for many people the terms signified, for better or worse, only the misuse or distortion of legal forms, as distinct from the broader, value-neutral sense involved in General Dunlap’s expanded definition. We do not regard the term as having only negative connotations. For one thing, it seemed to us that the term also resonated on a symbolic level--as Ben’s initial post suggested--with the simple fact that in the post-9/11 era, there have been innumerable sharply-contested legal debates relating to national security—a “war” over the content of national security law, as it were. In addition, Jack’s initial post went on to “offer two examples in which lawfare in the ‘a weapon of war’ sense captures an important reality that is in no way derogatory towards the rule of law”:

First, there is a war of sorts going on over the content and applicability of the laws of war to terrorist activities. It is a war in which battles take place across the ocean (the United States and Europe disagree, for example, whether there can be a war against terrorist groups, and whether terrorists can be detained without trial or be tried in military commissions); between proponents and opponents of the Goldstone Report; between the ICRC and government lawyers about the meaning and applicability of “direct participation in hostilities”; and among lawyers representing alleged terrorists, government lawyers, and judges in the D.C. Circuit. All of the combatants in this “war” believe they are fighting on behalf of the international rule of law, properly understood, and all use legal argument strategically to achieve this end.

Second, it is natural, I think, to see contemporary U.S. counterinsurgency (COIN) operations as an attractive form of lawfare – especially those aspects that involve the construction of legal institutions as a tool to defeat insurgents. The latest example is the brand new Rule of Law Field Force (ROLFF) in Afghanistan, commanded by the redoubtable General Mark Martins. The basic idea of ROLFF is to revive governance and rule of law functions in the Pashtun south where the insurgency is strongest during the “hold” phase of COIN operations (i.e., just after an area has been cleared of insurgents). General Martins, his soldiers, and their Afghan partners are literally fighting to bring ordinary Afghans criminal justice capacity, dispute resolution services, and anti-corruption institutions, all with the aim of promoting the legitimacy of the Afghan government and defeating the insurgency. If that’s not “using law as a weapon of war” I don’t know what is. . . . .

Lawfare will continue to address the meaning of the term explicitly as well, as occasions arise. More often, however, our focus has been and will continue to be directed to the merits of the underlying legal and policy debates themselves—the “Hard National Security Choices” that also form part of our title.