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.