Monday, July 11, 2011
The Meanings of "Lawfare"
Mary L. Dudziak
One characteristic of post-9/11 American legal thought has been the prominence of the idea of “lawfare.” A new blog is called simply Lawfare, and at the National Security Law Institute I attended this summer, one of our sessions was on Lawfare. Lawfare is thought to be of increasing importance, but it seems increasingly clear that the term itself means different things in different circles, and apparently sometimes different things in the same circle. What follows are various takes on lawfare from legal scholars, and then a military perspective. In the end, I think we’re left with muddiness on the issue of whether there is a normative component to lawfare, and if so whether that normative component is inherently negative.
To me the term implies that law is being used to obtain the objectives of war. The connotation is that those who would like to strike at the US militarily, but cannot do so effectively, will instead use legal processes to achieve their ends.
This is the way I understood the term when I first heard it- perhaps it has taken on a different connotation since.
"Lawfare," however defined, seems to accommodate the military/industrial complex which impacts our economy and thus our national security. Take a look at George W. Bush's "National Security Strategy" October 2002 and consider how it might indirectly define "lawfare," at least back then.
Lawfare is a subset of asymmetric warfare using normally civilian systems in order to limit or defeat a nation in a war. Thus, a good definition of lawfare is the use of the legal system to limit or defeat a nation in a war.
Here are some of the more common features of lawfare:
In a civilian criminal justice system, it is said to be better to release ten guilty men than to convict one innocent one. In a war, this returns enemy combatants to the battlefield.
In a civilian criminal justice system, a defendant has a right to silence. In a war, this defeats intelligence gathering.
Better yet, criminal defendants have a right to due process under the law before being imprisoned or executed. If enemy combatants posing as civilians are granted such protections, you can no longer wage war against them even though they are waging war against you.
Under the 4th Amendment, civilians have a limited right to privacy. In a war, the enemy poses as civilians to protect their communications from intelligence gathering.
Another common technique is to use the laws of war against those countries which observe them.
A captured al Qaeda manual teaches lawfare to its members by telling them to demand an attorney and to falsely accuse the capturing military of torture.
Terrorists and their sympathizers routinely attack common techniques of conventional warfare as disproportionate violations of the laws of war in order to limit effective military action.
As a result, our military and intelligence agencies have battalions of attorneys with which commanders routinely consult and often defer in making military decisions.
Are there facts to back up this conclusion:
"As a result, our military and intelligence agencies have battalions of attorneys with which commanders routinely consult and often defer in making military decisions."
Some military decisions require prompt action. How were the members of these battalions of attorneys trained in "lawfare"? Do any law schools offer courses in "lawfare"? What texts do these attorneys rely upon? Life and death can depend upon the advice of these attorneys. Query whether there are paper trails of such advice? Are such lawyers protected from malpractice? And when they get back in civilian life, do these attorneys suffer from stress from the advice they rendered? And what about military commanders whose actions are questioned - can they rely upon advice of counsel to avoid court martial?
Those are a series of very good questions. Serious discussion of lawfare among legal academicians is a fairly recent phenomenon. During the heat of debate over the Bush war policies, progressives tended to reject the very existence of lawfare. I have noticed a change now that a progressive Dem administration is dealing with these issues.
As to the proliferation of lawyers in United States war fighting, Jack Goldsmith spends some time on this issue in his book The Terror Presidency. See Chapter 3, starting at page 90 in the hardback copy.
I imagine a Nelson Eddy singing a stirring:
sending them into battle. Perhaps one of the benefits may be to have their military service work to pay off their student loans. But might there be a Shakespearian motivation?
I assure you that the songs of attorneys from OLC and State to JAGC concerning the rights of enemy combatants would fundamentally change if they did a tour in an infantry company in Helmund province in Afghanistan and had to live under the rules they like to set for others from a safe office in D.C.
I think "lawfare" is nothing but spin.
In a society with a rule of law, sometimes there will be court challenges to things authorities want to do for one or another military reason. In that sense, the free speech challenges by draft resisters in World War I were "lawfare". The challenges by Japanese internees in World War II were "lawfare". O'Brien's draft card burning suit in the Vietnam War was "lawfare". Youngstown Sheet and Tube's challenge to Truman's steel seizure was "lawfare".
But I suspect most of the people who use the term "lawfare" would weasel out of using that term in those cases.
So in that case, the definition of "lawfare" seems to be nothing more than "someone using legal process to challenge a military decision that I favor". And that, of course, is not a very useful term.
Think SLAPP harassment suits suits used for military purposes. This is hardly a new concept for Americans.
I second Dilan and would only add that we can add other cases that would go back to the very beginning of our constitutional history.
We are a nation of laws. Making the military higher than the civil power was an "abuse" in the Declaration of Independence. Part of the civil power is law and lawsuits.
"The Israeli parliament has passed a law in effect banning citizens from calling for academic, consumer or cultural boycotts of Israel in a move denounced by its opponents as anti-democratic.
The "'Law for Prevention of Damage to the State of Israel through Boycott" won a majority of 47 to 38, despite strong opposition and an attempt to filibuster the six-hour debate. Prime minister Binyamin Netanyahu did not take part in the vote."
Israel is worried about the UN vote.
WSJ "Israeli officials want a public commitment from Washington to protect the Saudi regime should it come under threat.."
US SecDef Gates meets King Abdullah:
SEC. GATES: We had a very good meeting. We met for about an hour and a half, one-on-one. It was an extremely cordial warm meeting. I think the relationship is in a good place. We talked about developments all over the region. We obviously talked about Iran....
Q. Did you talk about the Saudi troops in Bahrain? Did you raise that as an issue?
SEC. GATES: No.
Let's talk about democracy.
Lawfare is a term used by Israel and its defenders as an accusation, against those who challenge Israel by nonviolent means. It's a term the White Citizens Council would have used against King. It's a term England would have used against Gandhi.
I should add something else since my comment concerned semantics more than books.
if Posner's book is as it's being described, it's not an argument from "realism" it's an argument from fascism.
That should be clear.
The unhappy byproduct on the academic model of collaborative reason: if we all agree, it must be true and good. But it's not good when defense attorneys collaborate with prosecutors, so why should it be good the branches of government are joined? Why is unity under demagoguery a good?
There are rules mandating adversarialism in law; there are no rules mandating the same for branches of government. Maybe there should be.
Democracy is the rule of form, not content. It's relativism, but so what? Relativism, or Plato and the Pope, the choice shouldn't be that hard to make.
There is no more truth to dictatorship than there is to democracy, but democracy if we choose it, is founded in mandated formalized conflict. Jack Balkin may want to consecrate the proceedings with the language of redemption, but that's unnecessary. Or rather it's no more necessary for the United States than it is for the World Series or the World Cup. There is no truth in sport, yet people dedicate their lives to it.
The politics of truth is Fascism, always. If you don't want that, then shut up and play ball. And if you think what I've written manifests perversity, read the post and the review of Posner's fascist book.
Pity the poor people of Bahrain. They have been shot, beaten, tear-gassed – and patronised. On 7 March, at the height of the pro-democracy protests in the tiny Gulf island kingdom, a crowd gathered outside the US embassy in Manama, the capital, carrying signs that read "Stop supporting dictators" and "Give me liberty or give me death". A US embassy official emerged from the building with a box of doughnuts for the protesters, prompting a cleric in the crowd to remark: "These sweets are a good gesture, but we hope it is translated into practical actions."
It hasn't been. Syria was subjected to sanctions and Libya to air strikes; Bahrain, however, was rewarded with visits from the Pentagon's two most senior officials – the chairman of the joint chiefs of staff, Mike Mullen, and the then defence secretary, Robert Gates. Disgracefully, at the same time as peaceful protesters were being rounded up and imprisoned, both men offered full-throated endorsements of King Hamad Bin Isa al-Khalifa's brutal regime."
Let's remember what's at stake.
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