Rule of law(yers): legal expertise in the United States military and the prosecution of modern warfare

Abstract

On 21st -century battlefields, decisions over life and death have become increasingly influenced by a novel type of combatant: lawyers. The United States military currently employs nearly 10,000 military lawyers who play a crucial role in determining when and how martial violence is wielded. This dissertation unpacks this 'lawyerization' of warfare. It explains why the U.S. military has become so thoroughly 'lawyerized' over the last half-century and demonstrates the ramifications of these changes for future conflicts, arguing that the placement of lawyers at key nodes of the 'kill chain' serves to prohibit certain acts of violence while rendering others more feasible. Regarding the causes of U.S. military 'lawyerization', heightened sensitivity to war crimes accusations and coverage of civilian casualties among U.S. political and military leaders after the Vietnam War created opportunities for revising how force is deployed. However, it was not a foregone conclusion that these reforms would empower military lawyers. To claim a central role in these changes, U.S. military lawyers gradually re-produced themselves as dual experts who could best balance the demands of military necessity and humanitarian concern. The need to maintain this dual expert credibility has also shaped the impact that military 'lawyerization' has on the use of force today. Upholding this hybrid identity pushes military lawyers to function as managers of legal and legitimacy risk in war. Because different types of violence lead to different risk assessments, 'lawyerization' can, under varying circumstances, restrain, permit, or expand the U.S.'s capacity to use military power.