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“Lawfare,” Common Article 3, and Military Commissions in Rumsfeld’s “Known and Unknown”

Jack Goldsmith writes the following on Lawfare Blog about Donald Rumsfeld's new book "Known and Unknown." Specifically, he references Chapter 40, entitled "Law in a Time of War." 

In this chapter, Goldsmith writes that Rumsfeld discusses his views on “lawfare,” the origins and travails of military commissions, and the Supreme Court detention and habeas cases. Goldsmith writes: 

"Rumsfeld defines “lawfare” as the use of “international and domestic claims, regardless of their factual basis, to win public support to harass American officials – military and civilian – and to score ideological victories.”  He concludes that the “mere threat of lawsuits and legal charges effectively bullies American decision makers, alters their actions, intimidates our security forces, and limits our country’s ability to gather intelligence and defend the American people.”  Rumsfeld also discusses the background to this memorandum on the “Judicialization of International Politics,” that he sent to several top government officials in April 2003.  (I was working in the DOD General Counsel’s office at the time and drafted the memorandum for DOD General Counsel Haynes and Secretary Rumsfeld; I discussed the memorandum on pages 58-64 of my book The Terror Presidency.)"

Another theme of the chapter, Goldsmith notes, is that lawyers had too prominent a role, at the expense of policymakers, in making important legal policy decisions in the war on terrorism. Rumsfeld writes:

"Though I didn’t follow the novel reasoning of the Supreme Court majority in Hamdan, I agreed fully that there should be a proper standard of care for all detained enemy combatants, even those not technically entitled to POW privileges.  Had a standard beyond humane treatment, such as Common Article 3, been established as a matter of policy earlier, the administration might have avoided the sweeping setback  that Hamdan represented.  It is possible that we would have come to a better outcome had we approached the issue as a policy matter to be decided by policy makers with legal advice, rather than viewing it as a legal matter to be determined by lawyers."

For the full text of the Lawfare post, click here

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