DAN HENNINGER:The U.S. Military is a Giant Gulliver Tied Down by Washington Lawyers
http://online.wsj.com/articles/danhenninger-g-i-joe-in-lilliput-1410996526
A sense of déjà vu all over again descends as Congress debates President Obama’s commitment to fight the Islamic State terrorists in Iraq, or ISIS. If the United States ever loses its status as global superpower, historians in search of the triggering event can start with the Vietnam War.
After Vietnam, the belief took hold in some quarters—Democrats, midtown New York media, northeastern law schools—that the military and presidency could no longer be trusted with the war-making powers. Notwithstanding that “commander in chief” is embedded in the Constitution, Washington for some 40 nonstop years has defaulted repeatedly to the same, wrong solution: Send in the lawyers. The law is about many things, some of them good. Taking action isn’t one of them.
Listen to the ISIS debate closely, and what you’ll notice is not the sound of U.S. soldiers planning how to defeat the people who killed James Foley, Steven Sotloff and thousands of others but the language of lawyers.
On Tuesday, two newsmaking statements emerged about the U.S.’s mindset in the war—or whatever it is—to defeat the Islamic State terrorists.
Gen. Martin Dempsey, the Joint Chiefs Chairman testifying to Congress, said that “if we reach the point where I believe our advisers should accompany Iraqi troops on attacks against specific ISIL targets, I will recommend that to the president.” The White House pushed back, calling Gen. Dempsey’s remark a “hypothetical.”
The first statement was the voice of a soldier. The second was the sound of lawyers.
David Gothard
Both the White House’s proposal to arm and train the Syrian opposition and Republican House Armed Service Chairman Buck McKeon’s amendment to the authorization bill say Syrian groups and even individuals will be “appropriately vetted.” That is lawyers waving their world of words onto the chaos of the battlefield. How are people swarming the Syrian war zone going to be “appropriately vetted?” Will FBI agents interview friends and business associates?
The complex elements of modern American warfare include not only sophisticated ground-based troops but air power, unmanned drones, electronic surveillance, and the capture and interrogation of enemy combatants. Every one of those elements of U.S. military power has become a litigation battleground.
Whenever these national-security controversies erupt in the news—the CIA’s interrogation techniques, terrorist targeting in the drone wars, the National Security Agency’s metadata sweeps—they look like free-standing political fights. It’s more like a mudslide.
Some get settled with new congressional legislation. On Sept. 2—the day news emerged of Steven Sotloff’s murder—Attorney General Eric Holder sent Democratic Sen. Patrick Leahy a letter supporting his bill to restrict the NSA’s ability to collect telephone data.
Sometimes the executive branch binds itself. Last year President Obama said anti-terrorist drone attacks had to establish a “near certainty” of not harming civilians, an impossible legal standard in war.
A major post-Vietnam phenomenon is courts rewriting the rules of war, such as the Supreme Court’s 2006 Hamdan decision on trials before military commissions and its 2008 Boumediene decision on the habeas corpus rights of captured terrorists.
However intellectually interesting these disputes over our rights and values, each adds another thicket of legal consideration before, or even during, military action. There are now 10,000 lawyers in the Department of Defense. The legal staff assigned to Gen. Dempsey alone could fill a law firm. No one goes to war in this country until those DoD lawyers—plus lawyers at the Justice Department and White House—define in detail the parameters of battle.
The U.S. military has become a giant Gulliver wrapped in a Lilliput of lawyers.
There is an intricate debate in legal blogs now over whether it is legally correct to call ISIS our “enemy.” As its authority for the recent airstrikes on ISIS, the Obama administration has cited Congress’s 2001 Authorization for Use of Military Force, or AUMF. Some lawyers say the language of the AUMF applies to original al Qaeda, and that because ISIS officially broke from al Qaeda, the government must seek new legal authority to wage war on ISIS. This dispute puts in play whether the administration must conform to the War Powers Resolution of 1973 and its 60-day limit on military action not approved by Congress.
Pentagon lawyers are also wrestling with another ISIS conundrum: What happens when, inevitably, U.S. forces capture some of these guys? Then what? No homicidal ISIS jihadist will be going to Guantanamo. President Obama stopped Gitmo admissions. Give them to the Iraqis? We didn’t do that during the Iraq war and won’t now. Maybe they’ll all end up in lower Manhattan. Until the lawyers rule, any U.S. soldier in Iraq or Syria has no incentive to capture and hold an ISIS terrorist.
The hyper-legalization of war since Vietnam has been mainly about diminishing the U.S.’s ability to act, that is to say, its superpower status. That movement will soon remobilize to tie down the effort to defeat ISIS. No serious member of Congress should be a party to this toxic legacy.
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