Wednesday, June 22, 2016

OPLAW: the next ideological battleground?

This article from the right-wing Daily Caller takes aim at the sheer number of civilian and military lawyers providing operational law advice to commanders. Excerpt:
Critics have charged that, as the number of lawyers in the military has swelled, lawyers are trumping commanders about military strategy and operations. Others contend that the growth in military lawyers reflects the risk-adverse nature of the Obama administration on military matters.
*   *   *

Non-governmental organizations also have attempted to inject an added legal layer to military decision-making by invoking what they call “international humanitarian law.” These rules seek to limit armed action by Western military forces. The IHL is often cited by activist groups when they accuse the West of committing “war crimes.”[*]
Watch this space. This ominous article heralds the opening of an assault on the rule of law in military operations. It ought to be of concern to both commanders and judge advocates, not to mention public interest organizations.

Comments welcome on this post. (Real names, please.)

* Love the quotation marks. [Editor's footnote added.]

1 comment:

  1. Devastating.  Sadly, the assault on the Rule of Law is not limited to the military context--it is seen every day as people insist upon getting their way by simply interpreting "away" or interesting their way "around" any legal text with which they disagree.  

    From John Yoo and Jay Bybee in the White House Office of Legal Counsel (the key staff responsible for the infamous "Torture Memos," among many other embarrassments which were later embarrassingly withdrawn as precedent) to those seeking today to avoid the obvious meaning of the Second Amendment--that prior to the 20th Century, the federal government could not and did not have veto (infringe) authority over a citizens decision to exercise the right to keep and bear arms--by simply reinterpreting what its text means (in defiance of both the text and the history of the amendment) rather than trying to actually amend it using the amendment process.

    When it comes to self-discipline in obeying the letter and spirit of the laws--even those we do not like or agree with--we spend a lot of time and energy doing what we want and then justifying it instead of just accepting it and obeying the law as it is written and/or means.  And it is no wonder since politicians and businessmen have taught Americans that the law is not some higher ideal--but simply something to be bought, traded, negotiated and written or interpreted in a manner that in the end, the law is a tool legitimizing one's conduct and behavior instead of guide to controlling one's conduct and behavior.

    Indeed, it seems that the law is now just something to be circumvented or played with rather than obeyed.

    And that is all fine and dandy so long as we each remain in the majority who do the interpreting--but we are going to be in serious trouble, individually, when we are in the minority and counting on legislative or executive grace to spare us from the abuse of the majority voting for their own specific subjective convenience over general objective principles.

    It has been reported that outside of Independence Hall, when the Constitutional Convention of 1787 ended, a Mrs. Powel of Philadelphia asked Benjamin Franklin, "Well, Doctor, what have we got, a republic or a monarchy?"  Apparently, with no hesitation whatsoever, Franklin responded, "A republic, if you can keep it."

    Sadly, when legal technicalities and creative wordsmithing are the tools of the day, we are not being good caretakers--instead we are channeling the spirit of King George, III, himself. He would be so proud that is way word Colonies have returned (or are trying to return) to their royal roots.


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