Rosa Brooks, How Everything Became War and the Military Became Everything: Tales from the Pentagon (New York: Simon & Schuster, 2016):
"The Game of Law versus the Game of Life
" 'To a lawyer, nothing beats a good game of law.
"It stands to reason: law is the game lawyers are trained to play. In law school, the pedagogic emphasis is on 'learning to think like a lawyer,' and law students quickly come to understand that law and justice are two quite different things: the law is about rules and precedents, and the careful parsing of words and phrases. Often, the law is precisely what the International Criminal Tribunal's Appeals Chamber said it shouldn't be: 'the product of or slave of logic or intellectual hair-splitting.
" 'Justice' is a far messier and more dangerous concept: mention justice, and emotions quickly start running high. This give lawyers even more incentives to stick to law.
"When lawyers talk about war, they like to talk about 'armed conflict,' the legal distinctions between international and noninternational armed conflicts, and the legislative definition of 'traditional military activities.' Lawyers like to talk about 'collateral damage' and 'proportionality' and 'incidental harm,' and debate the quantum of activity that constitutes 'direct participation in hostilities.' To buttress their arguments, lawyers cite other lawyers and legal scholars and judges. They argue by syllogism and analogy, citing past cases and commentaries to prove that the concept of co-belligerency can be mapped onto the newer notion of 'associated forces,' or that the newly articulated 'unwilling or unable' doctrine merely restates older rules about neutrality.
* * *
"Somehow, lawyers have come to dominate Washington debates about war, and that's a shame. Legal categories should reflect a society's deepest moral beliefs. But ask a lawyer if something's a good idea, and odds are he'll tell you instead whether he thinks it's legally permissible. If we live today in a world in which everything has become war and the military has become everything, it is partly because far too many top decision makers have spent the last fifteen years playing the game of law, instead of the game of life.
"For lawyers, the game of law is safe and rule-bound: he who hews to the law can do no wrong. Whatever is not prohibited is permitted, we reason: if indefinite detention and mass surveillance aren't clearly illegal, they must be legal. If U.S targeted killings are not manifestly unlawful, they must be lawful, and if they're lawful, they needn't keep us up at might, dreaming of dead and broken bodies.
Id. at 362-363. Powerful, and sad, critique of lawyering by a Georgetown law professor.
