By Benjamin Wittes* & Stephanie Leutert**

A large, powerful organization with enormous influence over public debate is stifling discussion of an important national security issue. It has censored emerging ideas by prominent intellectuals and practitioners in the field. It makes irrational, outdated choices about what sources constitute acceptable reading for the public’s delicate eyes. Its conservatism about reputation and sources stifles the contribution of new media to the discussion—and thus has the effect of perpetuating stale ideas.

We’re not talking about the CIA, the NSA, the military, or the media.

We’re talking, of course, about Wikipedia.

In June 2012, we tried to edit the crowd-sourced encyclopedia’s entry on the word “lawfare”—a portmanteau of the words “law” and “warfare” which has come to refer, broadly speaking, to the use of law as a weapon of war. One of us (Wittes) is a co-founder and the editor in chief of the Lawfare Blog, a multimedia website devoted to the intersection of national security and law. The other (Leutert) is a research associate at a prominent foreign policy-oriented think tank in New York, who was helping Wittes, on a freelance basis, to develop a separate personal web site and add material to his Wikipedia entry. The goal in editing the “lawfare” entry on Wikipedia was not to advertise the Lawfare Blog—though that certainly would have been a happy collateral outcome. The goal, rather, was to expand the debate on national security and, in particular, the conversation surrounding the term “lawfare,” by incorporating into Wikipedia’s dry and narrow definition of the word some of the rich discussion of the term’s meaning that has taken place on the Lawfare site, where a number of prominent scholars and practitioners have reflected on the word’s meaning.

Rather to our surprise, our edits were almost immediately undone; the material we added was, literally within minutes, removed. The reason? The disreputable nature of blogs. Wikipedia is, as we shall explain, somewhat inconsistent on this point, but as to the word “lawfare,” it enforced its no-personal-blog rule with a brutal kind of rigor. The consequences are bizarre: As a result of this rule, Wikipedia denies its readers access to the thoughts of an active-duty brigadier general who currently serves as chief prosecutor of the U.S. military commissions, as well as those of a Harvard Law School professor who happens to be among the world’s most renowned national security law scholars.

The incident, which we presume is not unique, suggests that Wikipedia’s policies may require reconsideration.

The Inadequacy of Wikipedia’s “Lawfare” Page

Created originally in 2005, Wikipedia’s “lawfare” page seeks to chronicle the word’s evolution over the past forty years.

The Wikipedia reader learns that the first mention of the word “lawfare” in the national security context occurred in John Carlson and Neville Yeomans’s 1975 essay, “Whither Goeth the Law—Humanity of Barbarity.” Although the Wikipedia entry does not mention this amusing fact, this article does not use the word in anything like its contemporary sense; reflecting ideas prevalent during the seventies, these authors called for an embrace of “peace, love, and harmony.” And thus unsurprisingly, Carlson and Yeomans considered lawfare to be a tactic of peace, envisioning a world in which “lawfare replaces warfare and the duel is with words rather than swords.”[1]

The Wikipedia reader also learns about the term’s famous use in the 1999 book Unrestricted Warfare by Qiao Liang and Wang Xiangsui, two officers in China’s People’s Liberation Army, which contrasts starkly with the earlier optimistic, peaceful definition. To these foreign military officials, warfare was moving increasingly beyond the battlefield and taking on additional “non-military” forms, including “law warfare.” They called for powerful states to set the terms of conflict by “[s]eizing the earliest opportunity to set up regulations,” the Wikipedia page notes.

The Wikipedia reader also learns, correctly, that today’s common use of the term can be attributed largely to a seminal 2001 paper by retired Air Force Major General Charles Dunlap, then a colonel, entitled, “Law and Military Interventions.” Citing that and a later paper, the Wikipedia entry reads:

Dunlap defines lawfare as “the use of law as a weapon of war.” He later expanded on the definition, explaining lawfare was “the exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting” a superior military power.

Notably, and not on the Wikipedia page, Dunlap’s later definition—in response to the growing debate surrounding the term—defined lawfare as “the strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.” That is, Dunlap refined his definition over time to make clear that not all lawfare constituted misuse of law in conflict.

This point is important because just a few years after Dunlap introduced the term into the post-9/11 discussions of counterterrorism, lawfare came to be used as a pejorative description. Commentators (generally by those on the political Right) used it to describe the legally-oriented activities of human rights activists, lawyers, and advocacy groups (generally of the political Left) who were challenging in courts or before international bodies the United States’ conduct in the war on terror or Israeli actions with respect to Palestinians. Conservative pundits, government officials, and others have accused their opponents of lawfare, insinuating that legal attacks were trying to constrain the United States by limiting the government’s possible tactics in a time of war—or, in other words, misusing the law. Most famously, the 2005 U.S. National Defense Strategy included a sentence which seemed to link such activities with violent asymmetric attacks on the United States: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” [See page 5, emphasis added.]

An advocacy group has even arisen devoted to combating lawfare. The Lawfare Project describes its missions as:

(i) to raise awareness about the phenomenon and specific instances of lawfare, assuring the subject matter receives the credibility and immediacy that it warrants; (ii) to facilitate (legal and non-legal) responses to the perversion and misapplication of international & national human rights law; (iii) to identify potential lawfare threats and mobilize human and institutional resources to combat them; and (iv) to bring diverse and interested parties together in a common forum to discuss the phenomenon.

Understandably, given some of these developments, the word has come to be understood by legal activists of the Left as a kind of slur. In fact, when the Lawfare Blog was founded, its editors received numerous complaints from people who considered its name deeply offensive.

The Wikipedia page largely reflects this pejorative understanding that lawfare—whatever it is precisely—is a bad thing. In its introductory paragraph, the Wikipedia page notes that lawfare is “asserted by some to be the illegitimate use of domestic or international law with the intention of damaging an opponent, winning a public relations victory, financially crippling an opponent, or tying up the opponent’s time so that they cannot pursue other ventures such as running for public office, similar to a SLAPP lawsuit.” And in its “Other Examples” section, it cites a Wall Street Journal editorial on the José Padilla civil lawsuit, stating that “the lawyers suing for Padilla aren’t interested in justice. They are practicing ‘lawfare,’ which is an effort to undermine the war on terror by making U.S. officials afraid to pursue it for fear of personal liability.” The page also devotes a substantial section to lawfare in the context of the Israeli-Palestinian conflict, a section entirely devoted to claims that Palestinians and human rights NGOs are using lawfare to delegitimize Israel.

We don’t mean to take a position on the substance of any of these claims here, except to say that the page’s definition of the term is frankly inadequate. The reason is, quite simply, that the term has come to have broader usages—usages not intended to evoke opprobrium. Specifically, the page entirely misses some more nuanced and complicated uses of the term—and debates over its meaning—that have taken place on the Lawfare site.

Lawfare’s first post in September 2010 expanded subtly on the use of the word, defining it not merely as “the use of law as a weapon of conflict” but also with reference to “the depressing reality that America remains at war with itself over the law governing its warfare with others.” What’s more, the post affirmatively identified the founders of the blog as, in some sense, engaged in lawfare: “This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.” In other words, from its inception, the site used the term not as one of opprobrium but more neutrally with respect to lawfare’s common usage—and more playfully as a shorthand for legal disputes over matters pertaining to conflict.

In subsequent posts, distinguished national security experts fleshed out these more neutral senses of lawfare, expanding the understanding to encompass the strategic use of law not just by civil society and legal groups in wartime, but also by the U.S. government and its lawyers and soldiers. These posts pay particular attention to U.S. activities in Afghanistan, where American forces were seeking to build rule of law institutions as a feature of counter-insurgency. None of this evolving discussion is available to Wikipedia’s readers.

We decided to fix this deficiency.

Our Edits to the Wikipedia Page

Here are the totality of the edits we made to the Wikipedia page. We added the following to the introductory paragraph to counter the solely-negative connotation of lawfare:

Other scholars see [the term] more neutrally as a reference to both positive and negative uses of law as an instrument of warfare or even to the legal debates surrounding national security and counterterrorism. Benjamin Wittes, Robert Chesney, and Jack Goldsmith appropriated the word as the name of the Lawfare Blog, which focuses on national security law and which has explored the term and continued the debate over what lawfare means, and whether it should be considered an offensive term.

We also created a new section outlining a less pejorative understanding of the word:

The founders of the Lawfare Blog have argued for using the term without negative connotations.

In introducing the blog, Benjamin Wittes, a Senior Fellow at the Brookings Institution, argued that lawfare should not have only a negative connotation, but that it also refers to the sharply contested legal debates in the U.S. surrounding national security, and national security law. Wittes writes, “The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others.”

The site quickly came under criticism for its name from those who think of the term only as a slur. In response, Goldsmith wrote about two uses of the term lawfare that are not derogatory:

First, there is a war of sorts going on over the content and applicability of the laws of war to terrorist activities. Second, it is natural to see contemporary U.S. counterinsurgency (COIN) operations as an attractive form of lawfare—especially those aspects that involve the construction of legal institutions as a tool to defeat insurgents. The latest example is the brand new “Rule of Law Field Force (ROLFF),” which aims “to bring ordinary Afghans criminal justice capacity, dispute resolution services, and anti-corruption institutions, all with the aim of promoting the legitimacy of the Afghan government and defeating the insurgency.”

Goldsmith asked Brigadier General Mark S. Martins, then head of the ROLFF to write on whether he was engaged in lawfare in Afghanistan. Writing on his blackberry from Afghanistan, Martins concluded,

This is affirmative lawfare in Afghanistan: a conscious and concerted reliance upon law to defeat those inside and outside of government who scorn it. Surely, it must be waged as part of a comprehensive COIN campaign and must be focused upon the building and protection of those key rule of law nodes and institutions—formal and informal—upon which the authorities’ legitimacy depends. Great care must also be taken to preserve the initiative of the individual troops who continue to shoulder the most dangerous and significant burdens of this decentralized conflict. But if prosecuted effectively within these ground rules, it may well prove decisive.

The Lawfare Blog site, in its history of the term[,] uses lawfare to refer to both positive and negative uses of law as an instrument of war, and ha[s], in jest, used the term “waging lawfare” as a reference to blogging on the Lawfare Blog.

As noted above, our changes were short-lived.

Enter Wikipedia’s Platonic Guardians

While anyone can edit Wikipedia, the longevity of those changes is far from guaranteed. Wikipedia ultimately operates as a kind of Hobbesian state of nature, in which the editor most committed to his or her position wins. Individuals have deep-seated commitments to the pages to which they contribute, and they watch them like hawks. The system will notify users of changes to pages they are watching. And the self-appointed guardians of Wikipedia’s “lawfare” page did not like our changes—descending from the heavens with remarkable speed to make sure that we did not despoil “lawfare.”

Just over an hour after we posted them, nearly all of the changes had disappeared, with an explanation on the editing page that: “Blogs are not encyclopedic, and articles are not venues to advertise them. At most this blog gets a reference in External links,” and “Delete advertisement for blog—newspapers or scholarly articles only please. These are respected scholars, so find a respected source for this.”

The irony of this last sentence was apparently lost on Wiki-editor “ElijahBosley” (whoever that may be), a self-described lawyer, writer, and student of political philosophy. ElijahBosley would apparently have no trouble with contributors citing a newspaper article about lawfare by a young, inexperienced reporter writing on a tight deadline; and he would apparently not mind an outlying scholar of no reputation writing in a third-tier law review. But “respected scholars” using the site to advance concededly-relevant ideas was not acceptable. Wikipedia, perhaps the most radically successful new media experiment in the world, could not tolerate Jack Goldsmith or General Martins to the extent they decided to write on a blog.

We asked ElijahBosley what made the Lawfare Blog additions unacceptable, given that he acknowledged that the writers themselves were reputable. He responded:

The distinction is between edited and unedited blogs. A blog on the New York Times website, or Huffington Post for instance, has to pass an outside editor’s scrutiny. It is more dependable for being vetted. My own personal blog, or my best friend’s blog, or even a professor I deeply respect—does not have outside scrutiny. No matter how expert the blogger, if nobody else has reviewed the work, best not to cite it.

Wikipedia’s actual policies on this point are a bit murky. The Wikipedia pages dedicated to defining what constitutes a reliable source do little to set out concrete guidelines for their “army of volunteer” editors, who can each monitor up to 8,000 wiki pages through their “watchlists.” The official guidelines warn that self-published “personal or group blogs … are largely not acceptable as sources,” but they make an exception for “Self-published expert sources … when produced by an established expert on the subject matter,” and “whose work in the relevant field has previously been published by reliable third-party publications.” [Emphasis removed.]

We’ll leave it to others to decide whether this definition should or should not include Lawfare’s content. But the next line makes things a little more complicated: Wikipedia warns editors to “[T]ake care when using such sources [self-published blogs]: if the information in question is really worth reporting, someone else will probably have done so.” Or in ElijahBosley’s words, “In the case of a professional researcher writing in their field, normally that researcher would have a sheaf of articles and bundles of books to cite, and need not resort to citing a blog.” This is no doubt a good description of scholarship in, say, 1993—and probably still a decent one in 2003. Whether it is still an apt description today presents an interesting question. Certainly, the Lawfare Blog contains a large amount of commentary and thought from its major contributors that has never been published elsewhere.

The “lawfare” page isn’t the only incident in which scholars have been unable to edit Wikipedia pages within their areas of expertise. After reading through the transcripts of the 1886 Haymarket bombing trials, Bowling Green State University professor Timothy Messer-Kruse, who specializes in U.S. labor history, attempted to alter the Wikipedia page on the topic. He tried to change the section alleging that there was no evidence presented against the defendants, something he found contradicted by the primary sources. However, since Wikipedia’s rules require a secondary source, something published in a book, he was unable to make the adjustment. Even after publishing his findings in two of his own books, he continued to encounter difficulties in making the change, since his revisionism ran against conventional wisdom and thus the overwhelming weight of published work.

The broad question here is whether Wikipedia’s policies are encouraging an undue conservatism about sourcing, in general. While we have not surveyed a broad enough range of subjects to venture an opinion on this question, certainly the reader of the “lawfare” page—nearly a year after we sought to change it—still gets too narrow and politically-inflected a conception of a term whose meaning remains the subject of dispute. In this case, at least, Wikipedia’s doctrinally-pure stance about what constitutes a legitimate source clearly does a disservice to its viewers, who miss the broader discussion occurring across other media platforms.

Conclusion

There is an almost comic irony here: Wikipedia, an experiment in new media that has succeeded beyond anyone’s imagination, is so prejudiced against new media that it cannot see value in an active duty military officer’s blogging from Afghanistan. The site’s greatest strength—its ability to flexibly construct knowledge as events occur and new sources emerge—is ultimately undermined by its inability to provide clear and flexible guidelines that allow common-sense source judgments.

As publication outlets proliferate in an era of rapidly-developing communications technology, these policies—to the extent they are followed—all but guarantee that Wikipedia will fall behind the conversation. There are today simply more authoritative spaces than Wikipedia acknowledges where scholars and policymakers can express their ideas and debate one another across fields. Rather than going on hiatus while waiting for the next issue of some academic or policy journal to come out, today’s scholarly conversation on national security—and other—matters moves as quickly as the next blog post. An institution, even one as radically forward-leaning as Wikipedia, that fails to understand this will ultimately pay a price.

Until Wikipedia manages to change its policies, however, we have a solution for the problem of its “lawfare” page. Now that the Harvard National Security Journal has published this piece, a reputable academic source has published all of the text we tried to inject into Wikipedia’s page. So by the time you read this article, we will have tried our luck with changing the Wikipedia “lawfare” page once again—verbatim the same changes we made before, only all sourced to this very reputable publication.

Stay tuned.

*Benjamin Wittes is a Senior Fellow in Governance Studies at the Brookings Institution and Editor in Chief of the Lawfare Blog. He a member of the Hoover Institution’s Task Force on National Security and Law and the author or editor of several books on related matters.

**Stephanie Leutert is a Research Associate at a foreign policy think tank in New York, where she focuses on Latin America. She received a BA in International Affairs and Spanish Literature from Skidmore College.



[1] John Carlson and Neville Yeomans, “Whither Goeth the Law—Humanity or Barbarity,” published in The Way Out—Radical Alternatives in Australia (M. Smith & D. Crossley, eds., 1975) (quoted in Wouter G. Werner, “The Curious Career of Lawfare,” 43 Case W. Res. J. Int’l L. 61, 63 (2010).

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