Known and Unknown - Donald Rumsfeld [321]
Jackson’s reasoning, which prevailed in 1950, reflected what I believed. But by 2008, Jackson’s thoughtful predictions were brushed aside by judges and an almost hysterical campaign by NGOs, detainee lawyers, and academics. Their arguments are impractical as a security matter, inverted as a moral matter, and unprecedented as a legal matter. By proving persuasive to many, even to some members of Congress and some judges, including a bare majority of the Supreme Court, these activists have successfully placed “the litigation weapon” in the hands of our enemies.
As never before in history, today lawyers and legal considerations pervade every aspect of U.S. military operations. Besides contending with enemy bullets and bombs, the men and women in our nation’s military and intelligence services must also navigate legal traps set by our enemies, by some of our fellow citizens, by some foreigners, and even by some members of Congress and officials at international institutions such as the United Nations. The rules, regulations, and consequences in legal venues have to be and are taken into account on every corner of the battlefield. American military personnel have found themselves named in lawsuits across Europe and in the United States. The mere threat of lawsuits and legal charges effectively bullies American decision makers, alters their actions, intimidates our security forces, and limits our country’s ability to gather intelligence and defend the American people. This is a new kind of asymmetric war waged by our enemies—“lawfare.”
Lawfare uses international and domestic legal claims, regardless of their factual basis, to win public support to harass American officials—military and civilian—and to score ideological victories.20 Each legal action is a thread. The cumulative effect binds the American Gulliver. Enemies who cannot score military victories can nevertheless impair our defenses by litigating warfare. Lawfare is particularly effective against the United States, because it exploits America’s laudable reverence for the law and uses our own finest instincts and institutions—our very respect for law—to make us vulnerable to enemies who have nothing but contempt for those very instincts and institutions.
We cannot yet know what the full consequences of lawfare will be, but the trend is troubling. At home, judges—not elected representatives in Congress or in the executive branch—increasingly determine how a president can operate during wartime against our nation’s enemies. Terrorists have been given legal privileges and protections they are not entitled to by any standard. They violate nearly every law of war, yet our courts now perversely award terrorists more rights than any of our traditional military enemies have had throughout our country’s history. As a result, whenever and wherever American military personnel capture suspected terrorists, they must assemble evidence and facts to be ready to defend their actions, not only up the military chain of command but in courts of law, in addition to defending themselves in combat.
I received my first lesson in lawfare from a friend who had several close encounters with its spear point. In 2001, Henry Kissinger told me that when he traveled abroad he still faced threats of legal action for his work as secretary of state in the Nixon and Ford administrations three decades After the fact. Various critics have alleged he was complicit in war crimes and other offenses from Southeast Asia to South America.21 This dedicated public servant and Nobel laureate has had to live with periodic threats of arrest resulting from the action of some rogue magistrate or grandstanding prosecutor—not in the nations of America’s enemies, but in Europe, in countries with whom the United States is allied.
I came to appreciate keenly the dangers of lawfare during my second tenure as secretary of defense. In the spring of 2003, General Franks was named in a lawsuit brought before a Belgian court for his role in the Iraq war. The Belgian parliament had passed