Lawfare: a rhetorical analysis.

AuthorAnsah, Tawia
PositionSymposium: Lawfare

This Article offers a rhetorical analysis of the term "lawfare. " It examines the term within the context of its historical genesis, and reviews its evolving definition. Drawing upon insights from non-legal disciplines, the Article argues that rhetorically, "lawfare" indicates alternative and critical ways to think of law in relation to war.

  1. INTRODUCTION II. WAR BY LAW A. Law as War B. Law of Empire III. LAWFARE AS BORDER CONCEPT: EVOLVING MEANINGS AND SIGNIFICATIONS A. Lawfare in 2001 B. Lawfare in 2009 IV. LAWFARE AS PASSAGE CONCEPT (A BRIEF PSYCHOANALYTIC INTERPELLATION) V. CONCLUSION I. INTRODUCTION

    In an essay published shortly after the events of 9/11 and the U.S. responsive attack on Afghanistan, Colonel (as he then was; now Major General) Charles J. Dunlap Jr., U.S. Air Force attorney (JAG), introduced the term "lawfare" within the discourse on law and war. (1) In Dunlap's essay, the term had the specific meaning of indexing law itself as a weapon and a strategy of war. (2) But Dunlap's use of "lawfare" also implied various significations having to do with the broader issue of the parameters of law in relation to war, and of both law and war in relation to the exercise of governmental power. Several years later, in an essay published in 2009, Dunlap "refined" his own definition of the term "lawfare," (3) taking account of the subsequent career of the "war on terror." (4)

    In this brief essay, I propose a rhetorical analysis of lawfare. (5) I will be concerned with both Dunlap's intended meanings and the textual implications and latent significations within the discourse on law and war from which the term "lawfare" evolves and which it references. That is, I want to know what ideas attach to law and to war as specific human products, and how lawfare expresses ideas about each of them, and to ideas about their interrelationship. At its simplest, a rhetorical analysis suggests that lawfare might express a certain expansiveness of law in relation to war, and vice versa. Lawfare might also index the limits of law's idiom as war, as well as war's representation of law. Rhetorically, then, "lawfare" projects the will to expansion between law and war, inter se. And linguistically, it subtends the point at which "law" and "war" are contained within, and constrained by, each other.

    The dual themes, then, in this rhetorical analysis of lawfare are expansion and containment. The working thesis is that conceptually, we think of war as an alternative to law, a deeply felt mythology captured in Cicero's famous saying in Pro Milone, "inter armes silent leges," or "during war, law is silent." Likewise, we think of law as a constraint upon the sovereign's power to declare and conduct war. In that mythology, war is violent and irrational, while law is pacific, deliberative, and rational. But of course the relationship between law and war is more complicated: war is itself a "construct" of law, (6) just as much as war, ontologically, tests the basis and the limits of law. (7)

    At any given historical moment, these ideas and mythologies are given greater or lesser expression. Lawfare indexes a specific shape to the ideas we harbor about the relationship between law and war. Thus, "lawfare" as a term of art has its own specific, intended, and, indeed, doctrinal definitions, and the literature on lawfare within the past decade certainly attests to this. (8)

    What this Article hopes to contribute is a sense of the implied meanings and projected significations beyond doctrinal definition. The deployment of lawfare registers the extent to which a conception of law as formalistic and instrumental to war has become normative. The point of a rhetorical analysis of lawfare is to index a recognition of this and to interrogate the consequences for law outside of the war context. The object is to treat lawfare as a "threshold" concept between law and war, and thereby excavate the potential for alternative meaning-production. The object is to think through lawfare as a term that captures a certain meaning of law in order to apprehend alternative ways of thinking, more objectively and less naively (mythically) about law in relation to war.

    Lawfare's doctrinal meaning, as described in Parts I and II, suggests a bounded, or enclosed, conception of law within which law's relationship to war subtends law's capture and colonization by war: the more "war" is indexed as metaphor in legal discourse, and the more this reflects the entrenchment of a war paradigm governing legal thought, the more law becomes pregnant with war value. Lawfare, doctrinally, represents the loss of a sense of law as other in relation to war. In the alternative, however, lawfare imagined as a threshold concept might point to the recognition of a conception of law that maintains a relationship--contingent, provisional, historical, and imperfect--with war rather than a seamless collapse within it.

    At stake, then, in a rhetorical analysis of lawfare is both a critique of the war paradigm that it represents and enforces, and a recognition of the contingency of law in relation to the paradigm, whatever that paradigm is, within which it is situated. What I hope to establish in this Article is the relational aspect of law. Lawfare as projection and the case study, so to speak, of the "war on terror," makes stark how important it is to remember that law is never pure, is always contextual. Law cannot be divorced from its milieu. Thus, a rhetorical analysis of lawfare allows us to look at law more objectively, to see what has happened to law, under the aegis of war.

    In Part II, I review the nexus of law and war from a historical and doctrinal perspective and I analyze the discourses of power contemporaneous to lawfare's early deployment within the context of the "war on terror." The question here will be how much lawfare imports, and reflects its pre-2001 history. In Part III, I review Dunlap's evolving definitions of the term. In Part IV, drawing upon analytical methodologies outside law (e.g., theology and psychoanalysis) to underline the concept of law as relational both within and beyond the war model, I see lawfare as a threshold concept and as a "passage." This enables me to look at the conflicting desires and investments harbored by the term in its deployment as an instrument of war and of law.

    In the result, 1 conclude that lawfare represents a traditionally bounded or "determinate" view of law in relation to war. This view renders the law-war nexus dyadic and inevitable: expansion and constraint on the continuum between war and the criminal justice system ratifies law as the legitimation and the formal/instrumental expression, merely, of different forms of violence. A critique of lawfare from a rhetorical perspective submits a relational view of law, (9) a view that requires thinking of law as always and already "related" to an outside or a beyond of the law/war nexus. Whence, what will "constrain" or attenuate the resort to war (and the ac quiescence in a "war paradigm" (10) to resolve conflicts) may not be law in the traditional sense of an opposition between the war paradigm and crime paradigm. (11) Rather, war--or, perhaps more precisely, dehumanizing violence, (12) including the violence of the law--may be constrained by a conception of law that embodies relational thought.

    I borrow from theology and psychoanalysis to suggest that the more formal or bounded view of law already harbors this juridical desire in relation to war, but that the war paradigm suppresses and elides it--again, and as such, as an aspect of the paradigm itself. Thinking of lawfare, then, beyond its definitional limits to its linguistic and cultural significations-that is, figuring lawfare as a border (13) concept between law and not law, war and not war--gives us a sense of its potential discursive deployment as critique of the war paradigm. (14)

  2. WAR BY LAW

    Lawfare as a border concept expresses and projects conflicting desires concerning the relationship between law and war. In this first part, I review the historical context of lawfare's origins (as a legal term). Here, I look at the doctrine of the international laws of war, and the debates around American power before 9/11. As I will argue in Part III, lawfare expresses a strict view of the war as separate from international legal limits (law "and" war), but also continuous with, and legitimated by, domestic law as such. This latter view maintains the basic rubric of lawfare as paradigmatic of the war framework.

    1. Law as War

      There has been much criticism of the war paradigm (or the war framework) used to characterize the 9/11 events and the subsequent U.S. response. One element of the critique was that the 9/11 terrorist attack was not an "act of war" but rather a "crime," whence the Bush Administration's resort to a "war" rather than the criminal justice paradigm in pursuing its remedies was fatally flawed. (15) Following what the critics consider this original error, the problem of how to characterize and adjudicate those captured by U.S. forces in Afghanistan and other places where the terrorists were sought led to a protracted debate about how to treat the detainees. (16) The debate centered on whether the detainees should be treated as war criminals, thereby according them prisoner of war status under the laws of war, or whether they should be granted all the procedural protections of ordinary criminals under the domestic and international criminal justice laws. (17)

      It was within this context that Dunlap introduced the term "lawfare," and this seemed to index the newness of the legal matrix or pressure in relation to this war, or this extension of the modern definition of warfare. Nathaniel Berman, however, notes that whilst the relationship between law and war is ancient, what does seem new is the extent to which the recent events--in which he includes the "fourteen year conflict with Iraq"--have destabilized the...

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