Are “military responses” to terrorism “counterproductive” as the ABA President claims?

In the midst of an otherwise routine article in the American Bar Association’s Journal about the ABA’s Rule of Law Initiative (ROLI), ABA president Hillarie Bass lashed out at the military claiming that its “responses” to terrorism not only have been “proving” to be “insufficient” but also “counterproductive.”  Besides being factually wrong, her remarks are profoundly insensitive to the enormous sacrifices American and allied militaries – and their families – have made since 9/11 to fight terrorism.

Sure, one might plausibly contend there may be some instances where a particular response by a military force was “insufficient” or even “counterproductive,” but to say in an undifferentiated and unmodified way that “military responses” have those qualities is simply wrong. Does she really think there aren’t any military responses that have been sufficient and productive?

Obviously, the military efforts has been sufficient and productive enough to prevent another attack on the scale of 9/11.  One has to wonder: what would it take for Ms. Bass to find the military responses ‘sufficient’?

Consider that in just the past year, airstrikes against terrorists in Afghanistan have tripled, and ISIS’ physical caliphate in Iraq and Syria has been destroyed.  Indeed, in defeating ISIS there, the military, as columnist Ross Douthet noted in the New York Times, “succeeded without massive infusions of ground troops, without accidentally getting into a war with Russia, and without inspiring a huge wave of terrorism in the West.”

What about Ms. Bass’ claim that military responses are “counterproductive”?  Consider what U.S. Central Command reported earlier this year about what Ms. Bass might call the “military responses” of the 74-nation anti-ISIS coalition:

During 2017, over 61,500 square kilometers of territory was liberated from ISIS across Iraq and Syria, meaning “more than 98 percent of the land once claimed by the terrorist group has been returned to the people,” said Army Lt. Gen. Paul E. Funk II, commanding general of Combined Joint Task Force Operation Inherent Resolve.

More than 4.5 million people were liberated from ISIS oppression in 2017, said Funk, who added this represents a “remarkable achievement by our partners leading to [the liberation of] a grand total of 7.7 million people over the three years of Operation Inherent Resolve.”

Judge for yourself, but in my book those accomplishments of the “military response” were not “counterproductive.”  To suggest they and the other hard-fought successes since 9/11 were somehow affirmatively harmful is, to me anyway, a slap in the face to the families of the thousands of men and women in the armed forces who have been killed and wounded battling terrorists for more than sixteen years.

Furthermore, I would suggest that those who were horrifically victimized under ISIS domination – Yazidi women, for example –  would not say that the  “military responses” that freed them were “counterproductive” as Ms. Bass’s statement would have you believe.

If Ms. Bass thinks the military responses are insufficient because terrorism still exists, her understanding of human nature is flawed.  Most Americans sensibly believe that the U.S. will always face a terrorism threat.  After all, in 2003, the New York Times said that of “the past 3,400 years, humans have been entirely at peace for [only] 268 of them.”  As we look towards the future, emerging technologies will allow, as Thomas Friedman puts it, the emergence of “a single super-empowered person…able to kill all of us.”  In a world of well more than seven billion people it is inevitable that there will continue to be dangerous terrorists – both the lone wolf and groups – among them.

Ms. Bass, who is co-president of international law firm Greenberg Traurig, doesn’t offer evidence to support her charges, and there doesn’t seem to be anything in her background that suggests expertise in military matters.  Why then did she make her allegations?

Could it be that her tactic to promote ROLI is to attack other approaches aimed at defeating terrorism?  Perhaps she sees them as competitors in some way?  Most informed strategists believe that a variety of measures are needed to address terrorism.  Something like ROLI could clearly have a place, but I doubt anyone knowledgeable of the threat would suggest that the rule of law can exist in an environment that isn’t secure.  Very often military responses are needed to ensure that, even in developed countries.

She may think that by deriding the military’s responses will play to the ABA’s liberal constituency (see here and here), but I would suggest that’s an unwise approach.  The evidence is rather strong that no matter where one is on the political spectrum, a significant majority of Americans have more confidence in the military than any other institution.  Most liberals, I would wager, would find at least a few military operations sufficient and productive.  Consequently, I recommend that Ms. Bass and, for that matter, the ROLI program, look for ways to work synergistically with the military.  Both ROLI and the military are needed to confront terrorism.

Teamwork can bring success a lot faster than divisive rhetoric.

Instead of berating the military response to terrorism, I would also suggest that Ms. Bass could productively focus on the legal profession where her expertise lies, and work to protect those in uniform – as well as veterans – from discrimination by attorneys.  In other words, do something to support those currently fighting terrorism and other threats, along with those who have done so in the past.

How?  In 2016 I raised the issue as to why the ABA won’t consider discrimination based on military or veteran status to be an ethics violation – even as it ascribes as an ethics violation discrimination against so many other statuses. (See “Why Doesn’t the ABA Consider Discrimination Based on Military or Veteran Status to be an Ethics Violation?”)   As I said then:

It’s unfortunate that we as a society – or as a professional group – have to even identify specific groups when we are talking about a lawyer’s behavior related to discrimination and harassment. Aren’t all such acts of unlawful discrimination and harassment inherently bad? But if we’re drawing up a list, let’s not leave out the ones who fight and sacrifice to protect our way of life and its structure of laws and freedoms.

Unfortunately, nothing has been done to rectify this situation to give the respect that those who serve, and have served, are due.  Be that as it may, I think there is a better way of promoting ROLI than to so unfairly criticize the military response that so many sacrificed so much to achieve.

As we say on Lawfire, get the facts, check the law, and decide for yourself!