David B. Rivkin, Jr. and Lee A. Casey raise a critical question in an op-ed piece in today's Wall Street Journal.
Using the term "lawfare" to describe the "blizzard of litigation initiated in U.S. federal courts on behalf of al Qaeda and Taliban detainees" the former Department of Justice officials refer to the lawsuits that, in their words, "range from habeas corpus petitions...to tort suits seeking monies from U.S. government officials, to challenges regarding the detainees' conditions of confinement."
Along with the litigation, as Rivkin and Casey write, "[then there are the 'progressive'] NGOs [who] routinely demand that irregular enemy combatants like al Qaeda and the Taliban can be treated as POWs or criminal defendants, claim that military force can be applied only to the minimum amounts necessary to neutralize a particular opponent (rather than with a view to achieving ultimate victory), [and who aim] to ban an increasing number of weapons and weapons systems as being 'inherently indiscriminate.'" They argue that:
The effect of this lawfare effort, were it successful, would be to make it exceptionally difficult - if not impossible- for a law-abiding state to wage war in anything like the tradtional manner, bringing the full weight of the national armed forces to bear against an enemy, without prompting charges of war crimes and efforts to intimidate individual officials with prosecutions on ersatz 'war crimes' theories.While this may be all well and good in theory, it would seem that Messrs. Rivkin and Casey raise a point point worth considering: Exactly what alternative method do those who would criminalize war suggest should be used to "[ensure] the welfare and security of the civilian populations that the armed forces of states, and of the U.S. in particular, are raised and maintained to protect"?