The Role of Law in Military Strategy

The role of legal counsel in military strategy is to offer a starting point toward the most principled outcomes of difficult situations, former General Stanley McChrystal told Law School students during a lunch talk last month. McChrystal—who is best known for commanding the Joint Special Operations Command (JSOC) for five years during the mid-2000s—drew upon his decades of military experience to discuss the subject with Deputy Dean Daniel Abebe, and in doing so revealed the complex relationship between the legal and military spheres.

During the talk, “Adapting Domestic and International Law to Shifting National Security Concerns,” which was organized by the International Law Society and Law School Veterans, McChrystal drew three nested boxes on the board. The outside box represented what was physically possible, the middle was labeled “Legal,” and the innermost “Moral.”

McChrystal drew the boxes after a student asked whether legal advice was seen as an obstacle or an aid to JSOC operations, particularly when difficult, or even morally gray, issues were involved.

“This is the way it worked in my mindset,” McChrystal said referring to the boxes. “You’re trying to get inside the moral box, because you want to live there. If you start living out here,” he said pointing to the legal box, “and here,” he said pointing to the outermost box, “you end up in places you don’t want to be. It’s a slippery slope, and expedience is the thing that drags.”

For instance, when McChrystal took command of JSOC in the Fall of 2003, he had the authority to use sleep deprivation and stress positions—but he didn’t because he felt that those techniques fell outside of the moral box.

In response, Abebe, whose scholarship focuses on US foreign affairs law, public international law, and international politics, questioned the relevance of law given the significance of moral over legal constraints on strategic decision-making.

“Much has been made about the increasing judicialization of military decision-making and the presence of lawyers in these situations,” said Abebe, the Harold J. and Marion F. Green Professor of Law. “But based on that particular story, it makes me wonder to what extent the legal rules are really constraining, and maybe it’s the moral decision that really matters?”

McChrystal clarified that without the lawyers’ insight and expertise, it would have been much more difficult to determine a moral solution in the first place.

“The legal box wasn’t constraining, it was guiding,” he said. “It started you somewhere and got you closer to that moral box. We knew if we didn’t stay within the legal box, it was going to come back and hurt us in the long run. Once you’re on the wrong moral or legal side of something, it’s indefensible over time.”

At the beginning of the talk, McChrystal discussed the changing approaches to counter-terrorism and cyberwarfare in light of social media and advancing technology. He compared cyberwarfare to nuclear warfare, because both require holding opponents at risk in order to deter the other from making an attack.

“If you think about cyber, we’re in this gray area, because the idea of holding at risk is hard,” McChrystal said. “We haven’t defined it well enough to know how we’re going to respond, and they don’t know how we’re going to respond, so they may not feel we have them at risk.”

There is some debate as to which cyberattacks are considered traditional acts of war, and whether the United Nations Charter or international law should redefine what is permissible as technology continues to advance, Abebe said.

“Many argue that the current regime is sufficient and that we just look at a particular set of factors—what was targeted, how many casualties have there been, what’s the likelihood of repetition—and maybe that’s enough to figure out whether it’s an act of war,” he said. “But others say no, cyberwarfare is completely different, it’s much more complicated, and we need to come up with a new regime.”

After discussing the obligations that McChrystal faced when developing military strategy as commander of JSOC, a student asked whether the legal and moral boxes could also apply in a civilian context.

“I changed the rules of engagement in Afghanistan when I got there, because if we didn’t gain the support of the Afghan people we would lose the war,” McChrystal said. “Corporations in particular need to keep talking about how to operate as good corporate citizens—it’s a moral point as well as a practical one.”