Air University Review, May-June 1982

Rolling Thunder Reconsidered

Alfred P. Rubin

While W. Hays Parks’s case study creates a false impression of military-civilian split in the Department of Defense regarding Rolling Thunder, it is absolutely correct in pointing out the utility of legal input to policy at all levels.* However, "Rolling Thunder and the Law of War" raises questions that need serious consideration, particularly by those who think international law is a mere technical specialty that can be ignored without significant political or military consequences.

*W. Hays Parks, "Rolling Thunder and the Law of War," Air University Review, January-February 1982, pp. 2-23.

Having been a civilian in the Pentagon in 1961-67 (with a little military experience beforehand) and a lawyer for Assistant Secretary of Defense/International Security Affairs (ASD/ ISA) particularly charged with responsibilities for our Southeast Asian entanglements in 1963-65, I have very mixed feelings about parts of the article. The law is no doubt sound. The criticism of civilian leadership is a bit too harsh, particularly when it implies an absence of military input to key decisions. In fact, no lawyers, civilian or military, were consulted about Rolling Thunder to my knowledge. My first reaction when I heard of it was that it was surpassingly foolish from both a legal and political point of view.

International Security Affairs is also condemned with rather too broad a brush. If I remember correctly, about half or more of the ISA people involved in our Vietnam entanglements were military, seconded from the services and maintaining back-channel, if not front-channel, communication with their home services. I heard as much nonsense from them as from the civilians.

Thus, in my opinion the problem was never lack of military input but unwillingness at all levels, military and civilian, to listen to anybody, military or civilian, who had any insights than the leadership, military and civilian, was uncomfortable hearing. The implication that the Air Force Chief of Staff and the Joint Chiefs did not have a direct channel to the President through which their unhappiness could have been expressed is patently false. And I am not aware that they consulted their lawyers either; certainly no rumor of such a consultation reached me, as it should have if the military lawyers were exercising their usual diligence in marshaling allies within the bureaucracy to back a request for reconsideration of Presidential policy.

There is ample blame to spread around without singling out civilians in McNamara’s Pentagon, and I would place it first on the military leaders who obeyed orders without using the levers at their command to make the countercase and press it in the usual way. One of the facts of political life in the United States is the subordination of military to civilian leadership, but to balance the picture, the bureaucracy is available to military as well as civilian leadership to assure that the final decision is based on an expert evaluation of the facts. When the top civilian leadership fails to use its expert resources, the top military leadership is at fault for not leaping into the gap.

There is an even deeper problem that Parks correctly hints at, but, by properly focusing his article on a narrow issue, he does not bring it fully out in the open. That is the relationship between the law of war and broad national policy. In my opinion, military strategists, civilian and military, who draw up plans in disregard of the law of war as it impinges on major policy decisions, like the fundamental decision to resort to bombing at all in Vietnam or, to put it in current terms, the fundamental decision to prepare for some sorts of chemical or nuclear warfare, are begging for disaster when they regard international law, particularly the law of war, as unimportant. The disaster comes from the loss of contact with the broad constituency that elects congressmen and ultimately controls policy through control of public money. Unless that constituency is satisfied that the overall policy is "legal," its implementation gets caught in a political web in which "morality" becomes the issue. The issue does not disappear when strategists disregard it; it is reflected in elections (like the recent "nuclear freeze" votes in Vermont, which must be noted by the congressional delegation from Vermont and elsewhere) and ultimately in appropriations and statutory restrictions on military action.

If most international lawyers were convinced that some aspect of military policy reflected military considerations in disregard of the fundamental rules of "necessity," etc., set out so well by Parks in his article (which is extraordinarily clear and convincing on these points), then to plow ahead with that policy is to beg for congressional repudiation. That is not the way to safeguard our national security. In fact, in the Vietnam situation I doubt that the preponderance of lawyers was convinced of the illegality of much that we were doing, but the refusal to "make the case" left the dissenters unrebutted. And when parts of the case were finally made, the papers came out weak and argumentatively unconvincing. I suspect that was a result of many years of disregard by the civilian and military leadership of the need to hire international lawyers who are better than technicians to write adversary briefs in support of decisions made in disregard of the law. It is a sign of evils to come that the Office of the Assistant General Counsel (International Affairs) in the Department of Defense—ISA’s international lawyers—was abolished by the Carter administration and has not been reconstituted. The office was not strong, but it is hardly strengthened by being abolished.

And Parks is absolutely correct, in my opinion, in pointing out that attention to the law at the start would have shown there to be much greater scope for military operations than was perceived by an ignorant leadership, military and civilian.

Alfred Rubin is Charles H. Stockton Professor of International Law at the Naval War College, Newport, Rhode Island.

The conclusions and opinions expressed in this document are those of the author cultivated in the freedom of expression, academic environment of Air University. They do not reflect the official position of the U.S. Government, Department of Defense, the United States Air Force or the Air University.

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