The term "lawfare" is increasingly used to characterize the pervasive role of law in the conduct of war, but there is nothing new about the concept. Law has always played a role in war, requiring that a pragmatic balance be struck between the necessities of war and the need to protect the innocent. The significance of this balance between military necessity and humane treatment under the law has never been more central to the credibility of U.S. military operations than it is today. The real question raised today is whether "lawfare" will come to define a fundamental distortion of this historic balance.
During the initial phase of what President Bush designated the Global War on Terror, many experts condemned what was perceived as the distortion of this balance in favor of necessity over humane treatment. Like others who had spent their careers studying the role of law in war, I understood that such an approach would undermine the credibility of the United States as an icon of respect for the law. I also knew it would ultimately weaken the authority of the legal principles that have so effectively enabled military professionals in past conflicts to negotiate the moral landmines that permeate the battlefield.
Although President Barack Obama has repudiated the Bush administration's terminology, he has embraced the underlying premise that the struggle against transnational terrorism is indeed a military conflict. Nevertheless, in the latest phases of this conflict, as a result of the involvement of the courts and the Congress, as well as internal rethinking and refinement among legal and policy experts in the past and current administration, there has been a steady retreat from the "authority without constraint" paradigm.