4 September 2016
The Game of War versus the Game of Life
Everything Became War and the Military Became Everything: Tales from the
Pentagon, Rosa Brooks.
The Game of War versus the Game of Life
To a lawyer, nothing beats a good game of law.
It stands to reason: law is the game lawyers are trained to play. In law
school, the pedagogic emphasis is on learning to think like a
lawyer, and law students quickly come to understand that law and justice
are two quite different things: the law is about rules and precedents, and
the careful parsing of words and phrases. Often, the law is precisely what
the International Criminal Tribunals Appeals Chamber said it
shouldnt be: the product or slave of logic or intellectual
Justice is a far messier and more dangerous concept: mention
justice, and emotions quickly start running high. This gives lawyers even
more incentive to stick to law.
When lawyers talk about war, they like to talk about armed conflict,
the legal distinctions between international and noninternational armed
conflicts, and the legislative definition of traditional military
activities. Lawyers like to talk about collateral damage
and proportionality and incidental harm, and debate
the quantum of activity that constitutes direct participation in
hostilities. To buttress their arguments, lawyers cite other lawyers
and legal scholars and judges. They argue by syllogism and analogy, citing
past cases and commentaries to prove that the concept of co-belligerency
can be mapped onto the newer notion of associated forces, or
that the newly articulated unwilling or unable doctrine merely
restates older rules about neutrality.
Its probably not a coincidence that President Obama is a former University
of Chicago law lecturer, or that it was lawyers and legal academics like
UC Berkeleys John Yoo who came up with justifications for CIA black
sites and enhanced interrogation during the Bush administration.
More than half of U.S. senators hold law degrees, along with more than a
third of the House of Representatives. The secretary of state and the secretary
of homeland security are lawyers too.
Somehow, lawyers have come to dominate Washington debates about war, and
that's a shame. Legal categories should reflect a society's deepest moral
beliefs. But ask a lawyer if somethings a good idea, and odds are
hell tell you instead whether he thinks its legally permissible.
If we live today in a world in which everything has become war and the military
has become everything, it is partly because far too many top decision makers
have spent the last fifteen years playing the game of law, instead of the
game of life.
For lawyers, the game of law is safe and rule-bound: he who hews to the law
can do no wrong. Whatever is not prohibited is permitted, we reason: if
indefinite detention and mass surveillance arent clearly illegal, they
must be legal. If U.S. targeted killings are not manifestly unlawful, they
must be lawful, and if theyre lawful, they neednt keep us up
at night, dreaming of dead and broken bodies.
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When you leave the game of law for the game of life, youre thrown back
into the messy world of policy and morality. Suddenly you have to argue about
right and wrong, good and evil, fear and hope, cruelty and compassion. Few
lawyers are good at that sort of conversation, but its a conversation
we need to have.
As technologies and geopolitics have changed, the legal categories and
institutions we once thought we could rely upon to protect our rights and
our lives have become more and more arbitrary, with potentially fearsome
consequences for American democracy, for individual rights and the rule of
law, and for the fragile international order that for decades has stood between
us and global chaos.
As we have seen, there is nothing natural or inevitable about the legal and
cultural categories with which we are currently operating, or the rules
associated with those categories. No divine power proclaimed that war should
be defined in a particular manner, or that certain tasks and no others should
be the proper province of those wearing uniforms. We came up with the concepts,
definitions, laws, and institutions that have come to be so freighted with
significance and we can change them.
In particular, there is nothing eternal about the legal constructs inherited
by post-9/11 America. The modern law of war is hardly sacred. It should be
viewed as no more than what it is: a somewhat arbitrary set of legal constructs
and categories created mainly by the postWorld War II West to reflect
the realities, assumptions, and aspirations of that time. Like Melanesian
or Liberian or Native American war rituals, the modern law of war represents
only a particular societys efforts to label, order, and constrain violence
at a particular moment in time.
Law never does this more than imperfectly, but law and institutions can
and should be reimagined when the imperfections grow too glaring.
We dont have to accept a world in which the globe is a battlefield
in a boundary-less war that can never end, and law has lost any ability to
guide or constrain us. If the secrecy and lack of accountability of U.S.
targeted killings bothers us, or we worry that mass surveillance will enable
government abuses, we can mandate new checks and balances that transcend
the traditional war/ peace and foreign/ domestic categories. If we dont
want future technologies to encourage the reckless use of force or coercion,
we can search for new rules and institutions to manage them. If we dont
want our military to become too hidebound to adapt to new challenges, we
can change the way we recruit, train, and treat those who serve, and change
the way we define the militarys role. If we worry that the tensions
between human rights, national self-defense, and sovereignty are pushing
us toward global instability, we can create new rules and institutions for
global decision making.
We tend to forget this. Instead, we defer to the lawyers: we ask, Does the
law define such and such kinds of contested relationships as armed
conflict? Does the law permit State A to use force inside the borders
of State B in such and such circumstances? Does the law permit us to locate
an ordinary young man thousands of miles away, and guiltlessly transform
him, with the push of a button, into a mass of pulverized flesh and bone?
We should be asking a far more urgent question: What kind of world do we
want to live in and how do we get from here to there?
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