Charlie's Wars

I'm on the road but wanted to share a couple of interesting articles friends have e-mailed to me over the past few days:

"Lawfare Today: A Perspective," by Air Force Maj. Gen. Charlie Dunlap. "Lawfare" is a kind of warfare waged through legal processes and institutions; if warfare is a continuation of politics by other means, then lawfare is the reverse, where combatants seek to wage war through political and legal means. Conservatives diplomats and lawyers, including John Bolton, Jeanne Kirkpatrick, David Addington and Dunlap, have decried lawfare for some time, characterizing law as a constraint on American power that needed to be sharply circumscribed. Dunlap has moderated his views somewhat in this article for the Yale Journal of International Affairs, but he still sees law as a significant threat to American interests.

I've talked with Charlie over a beer about lawfare, and I agree with some parts of his argument. We do need to evaluate the ways that our enemies are using law and develop effective responses. But I think his basic premise -- that law threatens American national security -- is fundamentally wrong. Law and legal institutions are a source of strength, not weakness. Law confers legitimacy on U.S. actions, enables transparency, and provides a mechanism for the discussion of normative questions over the use of force. When America embraces the rule of law -- and even submits to it -- we attract friends and allies, and we become stronger. Being the good guys -- and being seen as the good guys because we adhere to the law -- helps us win hearts and minds.

"Listen to the Airman," by Army Lt. Col. Gian Gentile. All Charlie, all the time -- that's what we bring you here at Intel Dump. Seriously, Dunlap (who serves as the No. 2 JAG officer for the Air Force) also has an interesting new monograph about the role of the Air Force in modern warfare, particularly counterinsurgency, that deserves a read. In the current issue of Military Review, Gentile reviews the book and tells all of us knuckle-dragging, unwashed, ground-pounder types that we need to read it, because it offers some important criticisms of the Army and Marine Corps' new counterinsurgency doctrine. Among Dunlap's critiques: that counterinsurgency runs contrary to the American way of war; that this doctrine underutilizes core American warfighting strengths like air and seapower; and that the doctrine contains too many internal contradictions to be executed in practice. Maybe I'm just a unrepentant counterinsurgent at heart, but the new "small wars" manual seems a pretty good guide. Still, I agree with Gian that we need to fully ventilate and criticize this doctrine in order to make it better, and Dunlap's article should lead to some important discussion.

By Phillip Carter |  April 16, 2008; 3:08 AM ET  | Category:  Counterinsurgency
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"Charlie"? Pretty familiar for an Army field grade's choice of salutations to a major general. But I digress. Maj Gen Dunlap consistently shoots from the hip with some pretty far out, disjointed theories (especially in COIN), and I continue to wonder why the AF leadership hasn't come down on him. More power to him, I guess, and more evidence that the AF leadership really doesn't know what it wants to do with its future strategic vision.

Posted by: Jason | April 16, 2008 9:30 AM

The entire notion of "lawfare" is just pure right-wing poison like "judicial reform" and all the rest of their dishonest legal goo. The reality is that such people hold the law in contempt becasue the only thing they really believe in violence. They are nothing but congenital terrorsts themselves, and when they start talking like that it's nothing but projection -- the Bush administration has been waging war on the Constitution and the US Code for six years now.

The US military, like the US government, is entirely a creature of law, and has no purpose or function outside the law.

Posted by: Charles Gittings | April 16, 2008 10:53 AM

Charles,

Don't worry. With respect to "Lawfare", the current condition of the Army JAG Corps is on par with the rest of the Army - breaking. A quick review of the Fall 2007 JAG Selects (Law School 3Ls) reveals a depressing decline in the academic quality of the entering cohort - the decline is marked from just 3 years ago when I graduated Law School. In fact, the trends are so bad that the Army JAG took the unprecedented step of not realising the names of the schools of the applicants selected on the Spring 2008 list - my guess is that it would be too embarrasing.

Without further ado ... the Army's Fall 2007 JAG Selection List by school (if there's no number next to the name, there was one selectee):

Hint: Most of those from the "better" schools are ROTC Ed. Delays that owed service time from undergrad anyway and aren't "off the street" applicants.

U. Wisconsin - 3
Albany
U. Georgia
U. Washington - 2
U. San Diego - 2
U. Richmond - 3
Regent U. - 3
Pace U. - 2
UT-Austin - 2
U. Pittsburgh - 3
U. Florida - 2
Suffolk - 2
Thomas Cooley - 3
Emory
William Mitchell - 2
UNC
Texas Tech - 4
Indiana-Bloomington - 5
St. Thomas (FL)
SMU
American - 3
Creighton
Wake Forest - 2
SUNY-Buffalo
Virginia - 4
Mercer - 2
Michigan
Western New England
Michigan State
Wayne State - 4
Washburn
Duke
Seton Hall - 4
Whittier - 2
Southern Illinois - 2
Gonzaga
Missisippi College
U. Wyoming - 3
John Marshall - 3
Loyola - Chicago - 3
Howard
St. Louis - 2
Hamline
Penn State - 3
South Carolina
Roger Williams - 4
Alabama - 2
Temple - 5
Case Western - 3
Seattle U.
Tulane - 4
Yale
U. Oklahoma - 2
Syracuse - 5
Wash. U.
UC-Davis
Boston College - 3
Cardozo
Idaho
Iowa
Cal Western - 2
Maryland
George Mason - 2
Marquette - 3
New England Law - 4
Tennessee - 2
U. Arizona
Nortern Illinois
Campbell - 2
USC
Valparaiso - 2
Indiana-Indianapolis - 3
Southern
Vanderbilt - 5
Louisiana State - 2
Capital - 2
Samford
Northern Kentucky - 2
Touro
Ohio State - 4
Loyola - LA
Charleston Law School - 2
Northwestern
U. Penn
Catholic U.
Houston
U. Minnesota
Georgia State
Arizona State
George Washington
Montana
Florida Coastal
Illinois
Northeastern
William & Mary - 3
Harvard
Washington & Lee
Williamette
Hofstra
Boston U.
Akron
Pontif. Catholic U. - 2
Vermont - 2
Golden Gate
Georgetown
Brooklyn - 2
St. Thomas (MN) - 2
South Texas
Stanford
U. Miami
Columbia
St. Mary's - 2
Notre Dame
Ave Maria
U. Pacific - 3
Thomas Jefferson - 2
Widener
Loyola - New Orleans
Oregon
Nebraska - 2
NC-Central

Posted by: IRR Soldier... | April 16, 2008 12:34 PM

IIR-

I like what you're saying, but wish you could put that list in columns. . . ;-)>

"Lawfare"?

This term has a 100% match with information operations: D5E, Sam Gardiner and all that stuff. So what does that tell us? . . .

The mention of Bolton is nice, what exactly is his claim to fame, anyway?

Being a right-wing hack lawyer who could play "crazyman" with girls and pencil necks? That, being back in the "lean days" of the movement? Yea, I could see him as sort of a "folk hero" among the lower catagories of Bush followers. Able to crawl up through those ever darker tunnels, to pinacles of power and influence in Bush's administration, that is above all the 20ish JC types who just cut and folded? That is of course serving the big swindel.

"You must a college man, now I'm scared."

Jimmy Cagney, "The Strawberry Blonde" (1941)

But, the distinction, the contradictory concepts, the choice goes back much farther than that. To 1861, and then even back to 1776, when being a Rebel was the only choice one had. "Empire or Republic"? Cross or stripes?

My lot go with Republic and law every time. Funny that.

Posted by: seydlitz89 | April 16, 2008 5:41 PM

At least Regent University has only three graduates on the list. You may remember that this was the alma mater of Monica Goodling and a slew of other DOJ hacks hired by this administration. See http://www.boston.com/news/education/higher/articles/2007/04/08/scandal_puts_spotlight_on_christian_law_school/ for more.

Cheers,

JP

Posted by: almost drafted | April 18, 2008 9:04 AM

I am flattered that Phil has commented on my varied works. Actually, I don't believe that law threatens American national security; quite the opposite, I believe that for a democracy especially, scrupulous adherence to the rule of law is an absolutely essential element of national security policy.

That said, I recognize that our adversaries do try to exploit law and quasi-legal arguments. In other words, law has been weaponized - it can be used by either side in a belligerency.

Still, as Scott Horton points out, http://harpers.org/archive/2007/11/hbc-90001803 I did not make clear in my earlier writing on the subject that I considered law as a positive good. I am disappointed at the way some have used the term lawfare to mean that law is a negative. Phil's commentary underlines that I need to do a better job at explaining my views, which really are quite close to his.

Regarding my COIN writings, I really don't shoot from the hip on this subject in particular. If you look at the monograph Phil references, you will find 67 pages of text and 438 footnotes that consume some 41 additional pages. Yes, I do try to be provocative so as to stimulate discussion on this very important topic, but I try to do my homework first - and I'm always being 'educated' by experts.

It is true that AF leadership does not necessarily endorse my writings, and I always try to make it clear that I am expressing (as here) my personal opinion. Nevertheless, I believe that wide-ranging dialogue on these things is helpful, and that would include independent thinking from a nontraditional source.

As an aside, the role of general officers in public debates is something I've tried to address in a piece called "Voices from the Stars?" found at page 8 of http://www.abanet.org/natsecurity/nslr/2006/NSL_Report_2006_11.pdf

Again, I am flattered to be a small part of the discussion of these big issues.

Charlie Dunlap

Posted by: Charlie Dunlap | April 20, 2008 8:55 AM

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