Peace, War, and Lawyers

Lawyers have long composed this country’s first patriots. Almost two-thirds of the fifty-five delegates who attended the American Constitutional Convention were lawyers.

And, it was a lawyer—Francis Scott Key—who wrote the lyrics to this country’s most symbolic and proudest tune, U.S. national anthem The Star Spangled Banner.

When it comes this country, peace, war, and lawyers, Stewart Baker, author of a Foreign Policy (FP) article titled “Denial Of Service,” asks a pointed question:

“Lawyers don’t win wars. But can they lose one?”

The shape of war has certainly changed. Today, the subject of most controversial war strategies surrounds everything “cyber.” From cyberattacks, to cyberweapons, to cyberwar.

It turns out that the latter—cyberwar—is difficult to define, both legally and militarily. And, American lawyers are pressing the U.S. government to hold off on retribution tactics until it can be.

According to the FP, top Defense Department officials recently attempted to create a unified cyberwar strategy, one that prioritized defense over conducting any offensive operations.

Even then, however, Marine Gen. James Cartwright, then vice chairman of the Joint Chiefs of Staff, complained publicly that a purely defensive strategy would fail, reports the FP.

“If it’s OK to attack me and I’m not going to do anything other than improve my defenses every time you attack me, it’s very difficult to come up with a deterrent strategy,” quotes the FP.

Apparently, the current stalemate in cyberwar policy is the fault of lawyers. Not, for example, the military, government, or international community’s inability to evolve with today’s world of “cyber”-everything and provide definitions for terms already decades past their initial innovation.

“Today, just a few months later, Cartwright is gone, but the lawyers endure. And apparently the other half of the U.S. cyberwar strategy will just have to wait until the lawyers can agree on what kind of offensive operations the military is allowed to mount,” laments Stewart in his FP article.

Stewart feels furthered burdened by the length of time it has taken Justice Department lawyers to question whether or not the military violates the law of war if it mimics the tactics of (wait for a new term…) cybercriminals, i.e., if the military, like cybercriminals, erases its data-cracking, computer-violating tracks when operating in other countries.

According to Stewart, no branch of the military is immune to lawyer intervention.

“The Air Force recently surrendered to its own lawyers, allowing them to order that all cyberweapons be reviewed for ‘legality under [the law of armed conflict], domestic law and international law’ before cyberwar capabilities are even acquired,” Stewart writes in his FP article, just before calling the result “predictable, and depressing.”

To some, the idea of spending time on definitions and domestic and international law seems like a waste of time. But those people should review their American history to find that definitions and words among legal doctrines are the basis for our system of justice.

It took years for three legally-implicit, yet terrifying words to get overturned. “Separate but equal” was an accepted constitutional doctrine that prolonged discrimination in America until lawyers, in Brown v. Board of Education, redefined them as the embodiment of racial segregation and in violation of the Fourteenth Amendment.

Although slow to create, legal definitions pull at the heart of the U.S. Constitution.

The lesson from history to be learned is absolutely about putting limits on war, including cyberwars, and developing these rules and regulations through the legal system. As America has always done.

Most iconic American lawyer of all, Abraham Lincoln summarizes the role of a lawyer in his Gettysburg Address:

“Four score and seven years ago our fathers brought forth on this continent a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal,” Lincoln declared.

And yes, sometimes it is difficult to decipher legalese. But, despite this intermittent confusion regarding legal language, one thing is clear:

Attorney representation and intervention has ensured this “…government of the people, by the people, for the people, shall not perish from the earth,” even when faced with past war and future cyberwar.

Occasionally, days like today, require a sincere reminder of why lawyers are essential, equalizing pillars of the American government system.

-WB

To read the original Foreign Policy Argument article by Stewart Baker, published September 30, 2011, go here.

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