Since 1914, the United States Army has published and periodically updated a Law of War Manual. Its purpose is to provide authoritative guidance to military personnel on the customary and treaty law of war.
Having our armed forces conduct warfare in accordance with accepted law of war obligations reflects a desire to diminish the evils of war, by protecting noncombatants and civilians from the effects of combat, while providing humanitarian protection to captured military personnel and detained civilians. An up-to-date manual that accurately reflects existing treaty law, accepted customs, and practices and principles that provide guidance, even when the written rules do not fit unique circumstances, is essential to the well-being of those serving in our armed forces. The law of war also acknowledges the rights of military forces, in particular to capture or kill enemy forces, whether uniformed military forces of a belligerent government or armed nonstate actors such as al Qaeda and the Taliban.
In 1996, following several new law of war treaties and the Goldwater-Nichols Department of Defense Reorganization Act, with its emphasis on joint operations, the Army judge advocate general proposed that a single Law of War Manual be produced for the Department of Defense and the four military services. His suggestion was accepted enthusiastically by DoD leadership and its senior military lawyers.
The manual was to be all new—carefully researched and prepared from the ground up by experienced military and civilian law of war experts, working in concert with similarly qualified State Department lawyers. Over a 14-year period, the DoD law of war working group diligently produced, through close coordination, a 19-chapter, 1,100 page, single-spaced draft manual.
In May 2009, the DoD general counsel hosted an international peer review consisting of senior military law of war experts from Australia, Canada, New Zealand, and the United Kingdom, a leading academician, Oxford professor emeritus Sir Adam Roberts, and four highly experienced international law professors from leading U.S. law schools. Slightly more than a year later, after editing to address suggestions from the peer review, the “final” draft emerged.
The draft manual is the most comprehensive law of war manual produced by any nation. It enjoyed the consensus of the four military services. As a senior DoD lawyer acknowledged, the manual was “on the one yard line,” ready for publication once a final editing was completed.
State Department attorneys participated as full partners in the working group. Justice Department officials in the Bush and Obama administrations were advised of preparation of the manual, but showed no interest in participating in the drafting process.
Hence it came as a surprise when State Department lawyers and their counterparts seconded to the National Security Council—at least one of whom had been a participant in the working group meetings and the international peer review—requested a publication delay while they engaged in a “final review” along with their Justice Department counterparts. In December 2010, it was decided that State and Justice would be given two months in which to conduct their reviews for substantive comments only.
From the outset it was agreed that the manual would be apolitical—it would be based on the law rather than political arguments inconsistent with the law of war. For example, the working group rejected arguments by some Bush administration officials that the law of war did not protect captured al Qaeda and that “enhanced interrogation procedures,” including waterboarding, should not be banned.
Obama administration political appointees, though, have aggressively sought changes in the manual to conform to their political philosophies or legal arguments in detainee litigation, pushing for rules and principles that vary from longstanding law of war treaty-based terminology and norms previously accepted by Republican and Democratic administrations.
One of the more egregious changes proposed by State Department political appointees and human rights activists on the National Security Council was the removal of a paragraph acknowledging that the law of war is lex specialis—the controlling law in armed conflict. Denying the lex specialis status of the law of war would enable activists to inject human rights law into the manual and onto the battlefield. Deletion of the lex specialis text was apparently not sought on the basis that it was legally incorrect, but, we suspect, because it was inconsistent with their political agenda.
Such a change would impose restrictions on U.S. forces in combat so that deadly force could be used only against an enemy who had refused a surrender opportunity or who posed an “imminent threat.” These requirements would place our fighters on a footing comparable to a police officer in the United States in a peacetime environment and at an extreme and unprecedented risk of being killed by the enemy or facing “war crimes” allegations by human rights activists.
Justice Department efforts toward the draft manual echo its continued post-9/11 view of the battle with al Qaeda entirely (and incorrectly) from a law enforcement perspective. It seeks to bring the manual text into conformity with terms and arguments it uses in court (many of which are inconsistent with the law of war).
A change Justice Department lawyers sought involved civilians on the battlefield. Under the law of war, a civilian loses immunity from direct attack if he or she “takes a direct part in hostilities.” The working group agreed that this participation does not, however, necessarily constitute criminal activity. Without consulting with working group experts or senior DoD or State policymakers, Justice Department attorneys have asserted that it does. This extreme (and incorrect) position would place at risk of enemy prosecution the substantial number of U.S. and foreign civilians who accompany our armed forces in the field in time of war and whose support is a major basis for the way in which the United States—with congressional approval—determines its military force structure. Justice Department lawyers created new law to enable the department to win its cases against al Qaeda, disregarding battlefield consequences for civilians lawfully accompanying our own forces.
We do not know whether the proposed changes are the cause of the 30-month delay in publishing the manual. The interagency transparency that existed during the 14 years of manual preparation has ceased without explanation.
We are concerned about the delay, the lack of transparency, and the changes being made to the manual by political appointees without law of war experience, which could endanger the lives of our fighting men and women. The silence of the judge advocates general of the four services, whose predecessors stood up against measures used by the Bush administration that they thought were inconsistent with traditional U.S. law of war positions and practice, is disturbing.
As one law of war authority said in expressing his disappointment that “this project has truly collapsed,” the law of war “is in the midst of a potentially transformative period, and it is remarkable and risky for the U.S. government in general and the Pentagon in particular to sit quietly on the sidelines.”
We believe the confirmations of the new State Department legal adviser and DoD general counsel offer the Senate the opportunity to get answers to these troubling issues.
Hays Parks, a Marine Corps officer in Vietnam, was the special assistant to the judge advocate general of the Army for law of war matters from 1979-2003 and DoD senior associate deputy general counsel, international affairs, from 2003-2010. He chaired the DoD law of war working group during the 14-year preparation of the Law of War Manual. Edwin Williamson, senior counsel at Sullivan & Cromwell LLP, was the State Department legal adviser from 1990-1993.