The Role of the United States Military Lawyer in Projecting a Vision of the Laws of War

I. INTRODUCTION Over the years dealing professionally with US military lawyers on matters of the laws of war, I have often been struck by the following disjunction. On the one hand, the public attitude of career US military lawyers who deal with matters of the laws of war has typically been unapologetically lawyerly. By that, I mean an attitude which is strongly professional, in the sense of representing a client who happens to be the US government, deploying a body of technical law in a technical and narrowly legal way. Consistent with this markedly lawyerly attitude, the US military lawyer's legal language is strongly declarative of the US military's realistic interest in the outcome. In his or her view, the lawyer exists to shape in legal language the client's interests, whether that be the continued use of landmines in the Korean peninsula or the illegality of taking civilian hostages in the Iraq war. The language of the US military's lawyers thus is typically a language that, while not devoid of moral concerns, is more centrally concerned with protecting a technical legal result in technical legal terms-lawyerly language for a lawyerly result-and thus protecting a client's real interests. It is a language conspicuously devoid of references to an underlying moral vision of the laws of war, a technical language with little to indicate that a moral vision even exists in which this lawyerly language and concern for client interests are embedded. On the other hand, when I speak privately with US military lawyers, it is abundantly evident that, almost to a person, they have a clear moral vision of the meaning of the laws of war and why they are so important. In private, they are almost always able and indeed happy to articulate how and why it is important that their professional and public legal work be embedded within a moral framework. Sometimes they draw inspiration from the particularly American law of war tradition of the Civil War jurist Frances Lieber and the "Lieber Code," which President Lincoln made applicable to Union armies.1 At other times they may draw on the theological traditions of the just war, or on early modern jurists such as Grotius, or they may simply draw on the general tradition of the "laws and customs of war"-which, by placing a soldier's killing and destruction within the confines of law and honor, makes the profession of arms more than mere killing. Yet this moral background is rarely articulated in public. By that I mean that the moral underpinnings of the technical law are rarely articulated in ways that give support to one conclusion of law over another; lawyers do not appeal to those moral underpinnings as a source for interpreting and understanding the technical law, and in my experience, the US law of war policymakers do not explicitly appeal to those underpinnings to shape the laws of war in new circumstances, such as the war on terror. This is often true even in circumstances in which at least some outsiders like myself would have thought that an appeal to that moral vision would give US positions much greater weight on various topics concerning the laws of war: issues such as the International Criminal Court, landmines, or "acceptable" collateral damage. Instead the emphasis remains on narrow legal arguments conjoined with a claim that "this is how we do it and this is good for the US," which is a distinctly non-moral argument. Yet something of the private moral vision does emerge, to be sure, amidst the professional detachment. It is hard to describe, because it is not precisely an analytic quality, not a form of legal argument, but rather an emotional affect coloring the background. In my experience, it emerges not as a form of argument, but rather as an emotional desire to find common ground with those on the other side of the arguments over the laws of war, those who have already claimed the moral high ground, a ground which US military lawyers feel privately ought to be theirs-or, at least, a moral ground that they share. …