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4 September 2016

The Game of War versus the Game of Life

How 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 Tribunal’s Appeals Chamber said it shouldn’t be: “the product or slave of logic or intellectual hair-splitting.”

“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.

It’s 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 Berkeley’s 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 something’s a good idea, and odds are he’ll tell you instead whether he thinks it’s 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 aren’t clearly illegal, they must be legal. If U.S. targeted killings are not manifestly unlawful, they must be lawful, and if they’re lawful, they needn’t 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, you’re 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 it’s 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 post–World 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 society’s 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 don’t 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 don’t 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 don’t 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 military’s 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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