{"id":3966,"date":"2013-05-12T17:55:31","date_gmt":"2013-05-12T21:55:31","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/nsj\/?p=3966"},"modified":"2013-05-12T17:55:31","modified_gmt":"2013-05-12T21:55:31","slug":"on-wikipedia-lawfare-blogs-and-sources","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/nsj\/2013\/05\/on-wikipedia-lawfare-blogs-and-sources\/","title":{"rendered":"On Wikipedia, Lawfare, Blogs, and Sources"},"content":{"rendered":"

By Benjamin Wittes* & Stephanie Leutert**<\/strong><\/p>\n

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 It makes irrational, outdated choices about what sources constitute acceptable reading for the public\u2019s delicate eyes. Its conservatism about reputation and sources stifles the contribution of new media to the discussion\u2014and thus has the effect of perpetuating stale ideas.<\/p>\n

We\u2019re not talking about the CIA, the NSA, the military, or the media.<\/p>\n

We\u2019re talking, of course, about Wikipedia<\/a>.<\/p>\n

In June 2012, we tried to edit the crowd-sourced encyclopedia\u2019s entry on the word \u201clawfare\u201d\u2014a portmanteau of the words \u201claw\u201d and \u201cwarfare\u201d 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>, 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<\/a> and add material to his Wikipedia entry. The goal in editing the \u201clawfare\u201d entry on Wikipedia was not to advertise the Lawfare Blog\u2014though 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 \u201clawfare,\u201d by incorporating into Wikipedia\u2019s dry and narrow definition of the word some of the rich discussion of the term\u2019s meaning that has taken place on the Lawfare site, where a number of prominent scholars and practitioners have reflected on the word\u2019s meaning.<\/p>\n

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 \u201clawfare,\u201d 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\u2019s most renowned national security law scholars.<\/p>\n

The incident, which we presume is not unique, suggests that Wikipedia\u2019s policies may require reconsideration.<\/p>\n

The Inadequacy of Wikipedia\u2019s \u201cLawfare\u201d Page<\/strong><\/h2>\n

Created originally in 2005, Wikipedia\u2019s \u201clawfare\u201d page<\/a> seeks to chronicle the word\u2019s evolution over the past forty years.<\/p>\n

The Wikipedia reader learns that the first mention of the word \u201clawfare\u201d in the national security context occurred in John Carlson and Neville Yeomans\u2019s 1975 essay, \u201cWhither Goeth the Law\u2014Humanity of Barbarity.\u201d 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 \u201cpeace, love, and harmony.\u201d And thus unsurprisingly, Carlson and Yeomans considered lawfare to be a tactic of peace, envisioning a world in which \u201clawfare replaces warfare and the duel is with words rather than swords.\u201d[1]<\/sup><\/sup><\/a><\/p>\n

The Wikipedia reader also learns about the term\u2019s famous use in the 1999 book Unrestricted Warfare<\/a> by Qiao Liang and Wang Xiangsui, two officers in China\u2019s People\u2019s 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 \u201cnon-military\u201d forms, including \u201claw warfare.\u201d They called for powerful states to set the terms of conflict by \u201c[s]eizing the earliest opportunity to set up regulations,\u201d the Wikipedia page notes.<\/p>\n

The Wikipedia reader also learns, correctly, that today\u2019s 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, \u201cLaw and Military Interventions.\u201d<\/a> Citing that and a later paper<\/a>, the Wikipedia entry reads:<\/p>\n

Dunlap defines lawfare as \u201cthe use of law as a weapon of war.\u201d He later expanded on the definition, explaining lawfare was \u201cthe exploitation of real, perceived, or even orchestrated incidents of law-of-war violations being employed as an unconventional means of confronting\u201d a superior military power.<\/p>\n

Notably, and not on the Wikipedia page, Dunlap\u2019s later definition<\/a>\u2014in response to the growing debate surrounding the term\u2014defined lawfare as \u201cthe strategy of using\u2014or misusing\u2014law as a substitute for traditional military means to achieve an operational objective.\u201d That is, Dunlap refined his definition over time to make clear that not all lawfare constituted misuse of law in conflict.<\/p>\n

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\u2019 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\u2019s possible tactics in a time of war\u2014or, in other words, misusing the law. Most famously, the 2005 U.S. National Defense Strategy<\/a> included a sentence which seemed to link such activities with violent asymmetric attacks on the United States: \u201cOur 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.\u201d [See page 5, emphasis added.]<\/p>\n

An advocacy group has even arisen devoted to combating lawfare. The Lawfare Project<\/a> describes its missions as:<\/p>\n

(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.<\/p>\n

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<\/a> from people who considered its name deeply offensive.<\/p>\n

The Wikipedia page largely reflects this pejorative understanding that lawfare\u2014whatever it is precisely\u2014is a bad thing. In its introductory paragraph, the Wikipedia page notes that lawfare is \u201casserted 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\u2019s time so that they cannot pursue other ventures such as running for public office, similar to a SLAPP lawsuit.\u201d And in its \u201cOther Examples\u201d section, it cites a Wall Street Journal editorial<\/a> on the Jos\u00e9 Padilla civil lawsuit, stating that \u201cthe lawyers suing for Padilla aren\u2019t interested in justice. They are practicing \u2018lawfare,\u2019 which is an effort to undermine the war on terror by making U.S. officials afraid to pursue it for fear of personal liability.\u201d 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.<\/p>\n

We don\u2019t mean to take a position on the substance of any of these claims here, except to say that the page\u2019s definition of the term is frankly inadequate. The reason is, quite simply, that the term has come to have broader usages\u2014usages not intended to evoke opprobrium. Specifically, the page entirely misses some more nuanced and complicated uses of the term\u2014and debates over its meaning\u2014that have taken place on the Lawfare site.<\/p>\n

Lawfare\u2019s first post<\/a> in September 2010 expanded subtly on the use of the word, defining it not merely as \u201cthe use of law as a weapon of conflict\u201d but also with reference to \u201cthe depressing reality that America remains at war with itself over the law governing its warfare with others.\u201d What\u2019s more, the post affirmatively identified the founders of the blog as, in some sense, engaged in lawfare: \u201cThis latter sense of the word\u2014which is admittedly not its normal usage\u2014binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America\u2019s lawfare, even as we participate in many of its skirmishes.\u201d In other words, from its inception, the site used the term not as one of opprobrium but more neutrally with respect to lawfare\u2019s common usage\u2014and more playfully as a shorthand for legal disputes over matters pertaining to conflict.<\/p>\n

In subsequent posts, distinguished national security experts fleshed out these more neutral senses of lawfare, expanding the understanding<\/a> 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<\/a>. These posts pay particular attention to U.S. activities in Afghanistan<\/a>, where American forces were seeking to build rule of law institutions<\/a> as a feature of counter-insurgency. None of this evolving discussion is available to Wikipedia\u2019s readers.<\/p>\n

We decided to fix this deficiency.<\/p>\n

Our Edits to the Wikipedia Page<\/strong><\/h2>\n

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:<\/p>\n

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.<\/p>\n

We also created a new section outlining a less pejorative understanding of the word:<\/p>\n

The founders of the Lawfare Blog have argued for using the term without negative connotations.<\/p>\n

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, \u201cThe 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.\u201d<\/p>\n

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:<\/p>\n

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\u2014especially those aspects that involve the construction of legal institutions as a tool to defeat insurgents. The latest example is the brand new \u201cRule of Law Field Force (ROLFF),\u201d which aims \u201cto 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.\u201d<\/p>\n

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,<\/p>\n

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\u2014formal and informal\u2014upon which the authorities\u2019 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.<\/p>\n

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 \u201cwaging lawfare\u201d as a reference to blogging on the Lawfare Blog.<\/p>\n

As noted above, our changes were short-lived.<\/p>\n

Enter Wikipedia\u2019s Platonic Guardians<\/strong><\/h2>\n

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\u2019s \u201clawfare\u201d page did not like our changes\u2014descending from the heavens with remarkable speed to make sure that we did not despoil \u201clawfare.\u201d<\/p>\n

Just over an hour after we posted them, nearly all of the changes had disappeared, with an explanation on the editing page that: \u201cBlogs are not encyclopedic, and articles are not venues to advertise them. At most this blog gets a reference in External links,\u201d and \u201cDelete advertisement for blog\u2014newspapers or scholarly articles only please. These are respected scholars, so find a respected source for this.\u201d<\/p>\n

The irony of this last sentence was apparently lost on Wiki-editor \u201cElijahBosley\u201d (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 \u201crespected scholars\u201d 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.<\/p>\n

We asked ElijahBosley what made the Lawfare Blog additions unacceptable, given that he acknowledged that the writers themselves were reputable. He responded<\/a>:<\/p>\n

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\u2019s scrutiny. It is more dependable for being vetted. My own personal blog, or my best friend\u2019s blog, or even a professor I deeply respect\u2014does not have outside scrutiny. No matter how expert the blogger, if nobody else has reviewed the work, best not to cite it.<\/p>\n

Wikipedia\u2019s 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 \u201carmy of volunteer\u201d editors, who can each monitor up to 8,000 wiki pages through their \u201cwatchlists.\u201d The official guidelines<\/a> warn that self-published \u201cpersonal or group blogs \u2026 are largely not acceptable as sources,\u201d but they make an exception for \u201cSelf-published expert sources \u2026\u00a0 when produced by an established expert on the subject matter,\u201d and \u201cwhose work in the relevant field has previously been published by reliable third-party publications.\u201d [Emphasis removed.]<\/p>\n

We\u2019ll leave it to others to decide whether this definition should or should not include Lawfare\u2019s content. But the next line<\/a> makes things a little more complicated: Wikipedia warns editors to \u201c[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.\u201d Or in ElijahBosley\u2019s words<\/a>, \u201cIn 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.\u201d This is no doubt a good description of scholarship in, say, 1993\u2014and 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.<\/p>\n

The \u201clawfare\u201d page isn\u2019t 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<\/a>, who specializes in U.S. labor history, attempted to alter the Wikipedia page on the topic<\/a>. 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\u2019s 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.<\/p>\n

The broad question here is whether Wikipedia\u2019s 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 \u201clawfare\u201d page\u2014nearly a year after we sought to change it\u2014still gets too narrow and politically-inflected a conception of a term whose meaning remains the subject of dispute. In this case, at least, Wikipedia\u2019s 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.<\/p>\n

Conclusion<\/strong><\/h2>\n

There is an almost comic irony here: Wikipedia, an experiment in new media that has succeeded beyond anyone\u2019s imagination, is so prejudiced against new media that it cannot see value in an active duty military officer\u2019s blogging from Afghanistan. The site\u2019s greatest strength\u2014its ability to flexibly construct knowledge as events occur and new sources emerge\u2014is ultimately undermined by its inability to provide clear and flexible guidelines that allow common-sense source judgments.<\/p>\n

As publication outlets proliferate in an era of rapidly-developing communications technology, these policies\u2014to the extent they are followed\u2014all 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\u2019s scholarly conversation on national security\u2014and other\u2014matters 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.<\/p>\n

Until Wikipedia manages to change its policies, however, we have a solution for the problem of its \u201clawfare\u201d 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\u2019s page. So by the time you read this article, we will have tried our luck with changing the Wikipedia \u201clawfare\u201d page once again\u2014verbatim the same changes we made before, only all sourced to this very reputable publication.<\/p>\n

Stay tuned.<\/p>\n

 <\/p>\n

*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\u2019s Task Force on National Security and Law and the author or editor of several books on related matters.<\/p>\n

**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.<\/p>\n


<\/p>\n
\n
\n

[1]<\/sup><\/sup><\/a> John Carlson and Neville Yeomans, \u201cWhither Goeth the Law\u2014Humanity or Barbarity,\u201d published in The Way Out\u2014Radical Alternatives in Australia (M. Smith & D. Crossley, eds., 1975) (quoted in Wouter G. Werner, \u201cThe Curious Career of Lawfare,\u201d 43 Case W. Res. J. Int\u2019l L. 61, 63 (2010).<\/p>\n<\/div>\n<\/div>\n","protected":false},"excerpt":{"rendered":"

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