professional socialization: (1) learn the right answers in law school as part of legal culture, (2) legal academy an “echo-chamber of approbation” where a tribe of like-minded scholars mutually reinforces received wisdom and recycles fashionable opinions, (3) contrarians face scorn, stigmatization, and even ouster, (4) incentives exist for legal faculty, even if privately conflicted, to embrace the prevailing ideological hegemony and ape the arguments of leading scholars without regard to logic or consequence, (5) ideological fence around a zone of “decent opinion” create a hostile environment for opposed scholars: if CLOACA consensus deems coercive interrogation torture, TK murder, and U.S. leaders war criminals, how can less-senior scholars, let alone the untenured, resist these diktats?
subject matter ignorance: (1) law degree + intellect does not make expertise in any subfield, (2) expertise earned only through research and time-intensive theory development and testing, (3) duty of candor to disavow expertise; those who arrogate foundationless expertise to themselves engage in fraud; (4) LOAC scholarship is augmented by knowledge of military history and by experience; (5) CLOACA counts almost no one in its ranks who ever joined the brotherhood of arms so it lacks the “thorough understanding of the…very special ‘business’ of war” without which its “legal erudition goes for naught.”; (6) CLOACA disregards the salience and difficulty of developing expertise in LOAC; (7) inverse correlation between martial expertise and LOAC radicalism
law as politics: (1) CLOACA exploits the open texture of LOAC treaties and domestic statutes, (2) makes dubious claims regarding the applicability of controversial soft-law sources, (3) misapprehends the import of provisions and language divorced from historical context or read in isolation, (4) subjugates military necessity—while denying engagement in a political project; (5) asserts as “truths” its politically-motivated judgments regarding U.S. policies that would prejudice American self-defense if implemented, (6) scholarship and partisanship, if not identical, inform each other, non-motivated knowledge does not exist
law as politics: (1) CLOACA exploits the open texture of LOAC treaties and domestic statutes, (2) makes dubious claims regarding the applicability of controversial soft-law sources, (3) misapprehends the import of provisions and language divorced from historical context or read in isolation, (4) subjugates military necessity—while denying engagement in a political project; (5) asserts as “truths” its politically-motivated judgments regarding U.S. policies that would prejudice American self-defense if implemented, (6) scholarship and partisanship, if not identical, inform each other, non-motivated knowledge does not exist
academic narcissism: Whether CLOACA members suffer from narcissism is impossible to ascertain indirectly. Yet CLOACA scholarship and advocacy grants its members entrance into and status within the prestigious legal academy, public forums within which to contravene and condemn orthodox LOAC and U.S. policies as part of a transformative project, and peer and public attention and admiration.
appropriation of LOAC ownership: (1) “Ownership” connotes “authority to declare, interpret, and enforce [LOAC], as well as [to] shape [LOAC] now and in the future.”; (2) legal absolutists in CLOACA have fed skepticism about whether professional self-regulation can secure compliance by those whose mission is to win wars rather than observe law, arguing for a paradigm in which activists and international courts exogenously determine and enforce LOAC, (3) CLOACA claim primacy over LOAC, relegating military establishments to a consultancy role and discounting their time-tested interpretations and practices
lack of political accountability: (1) U.S. leaders waging war are politically accountable to a people for their safety, unelected Islamists and CLOACA are not; (2) CLOACA has the luxury to render motivated judgments regarding the form and function of LOAC, lodge intemperate criticisms of U.S. policies and personnel, and “inflate [their] sense of self-importance [as to] that upon which they should…be heard.; (3) CLOACA can offer its condemnations with absolute immunity—legal, political, and reputational
human rights absolutism: (1) LOAC accepts that military necessity requires use of force to kill people so long as those targeted are combatants and the methods and means are consistent with proportionality, distinction, and humanity; (2) human rights law purports to prohibit all casualties not strictly required to safeguard human life, saddles the state with the burden of showing that lethal force was “absolutely necessary” to protect life or public order and requires states to minimize not only civilian but military casualties—including both lawful and unlawful combatants—and may resort to force only if non-lethal measures such as arrest or incapacitation would subject military to overwhelming risks and/or costs
human rights absolutism: (1) LOAC accepts that military necessity requires use of force to kill people so long as those targeted are combatants and the methods and means are consistent with proportionality, distinction, and humanity; (2) human rights law purports to prohibit all casualties not strictly required to safeguard human life, saddles the state with the burden of showing that lethal force was “absolutely necessary” to protect life or public order and requires states to minimize not only civilian but military casualties—including both lawful and unlawful combatants—and may resort to force only if non-lethal measures such as arrest or incapacitation would subject military to overwhelming risks and/or costs
legal nullification: (1) reflexively resolves differences of opinion on LOAC against the U.S. and its policies, and uniformly claims, contrary to facts, the plain language of legal sources, the well-settled interpretations of civil and military courts, and the practice of national militaries that the U.S. was not attacked on 9/11 and cannot engage in self-defense, that there is no such thing as unlawful combatants, that stress without injury constitutes torture, and that use of a UAV in Pakistan to kill an Islamist is murder whereas the same act with a sniper rifle across the border in Afghanistan is lawful. By mulishly denying that their legal aspirations are faithful only to their political program, CLOACA commits acts of nullification
