On Legal Subterfuge and the So-Called Lawfare Debate

Introduction

In 2001, Major General Charles Dunlap popularized the term “lawfare” to describe a phenomenon that he associated with the use by “adversaries” of “America” to attack the United States and gain so-called “operational objective[s]."(1) Dunlap himself subsequently nuanced his use of the term in an article published in the Yale Journal of International Affairs(2) admitting that lawfare can be used like any other tool or weapon of warfare, depending upon “who is wielding it, how they do it, and why.” Unfortunately, having – perhaps inadvertently – popularized the notion that terrorists were using the rules of humanitarian law, domestic law and human rights law to gain improper advantages over the United States, others have since occupied the field and redefined the term in a highly contentious manner to suggest that any use of the law by a so-called “adversary of America” (or Israel) is improper and a form of “lawfare.” That would presumably include the habeas corpus petitions of Guantanamo detainees(3) and suits by individuals subjected to torture or extraordinary rendition.(4) A group has even formed known as The Lawfare Project, which has listed (pejoratively) as examples of lawfare the case brought to the International Court of Justice on the legality of Israel’s security barrier,(5) human rights litigation sponsored abroad by “terrorist entities” such as Hamas (regardless of the merits of the case),(6) cases involving universal jurisdiction and other forms of legal action. According to The Lawfare Project, these legal actions (and others) hinder the ability of democracies to defend themselves against terrorism.(7) These arguments echo those embodied in the Bush Administration’s 2002 National Security Strategy and 2005 National Defense Strategy which predicted that: “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."(8)

This strange conflation of the word “terrorism” with the words “judicial processes” and “international fora” is worrisome. Since when is filing a lawsuit the same as mounting violent and bloody attacks on civilians and civilian objects? This false equivalence between law and war is shocking. Moreover, the irony behind the theories and contentions of The Lawfare Project is not lost upon anyone familiar with the approach to international law and human rights articulated by the Justice Department and White House Counsel during the administration of former President George W. Bush. From 2001 through 2006 and even beyond, as Professor Sadat has written in earlier articles on this topic, government lawyers “sought to redefine legal norms in ways that [were] neither particularly plausible nor persuasive."(9) Indeed, it is hard not to see the current emphasis on the illegitimacy of terrorist “lawfare” as part and parcel of the frontal assault on the constraints imposed by international human rights law, humanitarian law and constitutional law on U.S. freedom to engage in activities that clearly violate those norms. The only difference, perhaps being that the argument has shifted from attempts to redefine the law using legal subterfuge to efforts to attack the end users of those norms. As David Luban noted in an essay penned in 2007, advocates of the lawfare theory have targeted not only “terrorist adversaries” of America, but also the lawyers representing them.(10)

This very short paper will explore some preliminary etymological background on the term lawfare, explain its current use (and misuse), and finally conclude with some concrete suggestions on how to move forward from this singularly unhelpful term and this fruitless – and even dangerous – rhetorical debate. Although there are undoubtedly lawsuits brought by seemingly undeserving individuals that tax the patience of the public and courts, and many cases involve difficult questions of politics that reasonably minded individuals could contest, one of the most enduring strengths of the United States and one of its greatest contributions to world civilization has been respect for the rule of law, legal processes and legal outcomes. Attacking terrorists by attacking our most cherished values, as lawfare advocates do, provides neither physical safety nor moral surety to Americans attempting to navigate a dangerous world.

Etymological Background

The use of the term “lawfare” has significantly increased in the last decade.(11) A “Google” search returned 240,000 results.(12) Wikipedia defines “lawfare” as “a form of asymmetric warfare. Lawfare is waged via the use of domestic or international law with the intention of damaging an opponent."(13) Where there was previously no entry, external pageDictionary.comcall_made now describes “lawfare” as “the use of the law by a country against its enemies, esp by challenging the legality of military or foreign policy."(14) Yet, no results can be found in the Oxford English Dictionary.(15) Perhaps that is because it has no real meaning at all. Analyzing the term reveals that “law” is defined as “a rule of conduct imposed by authority"(16) while “fare” is an Old English, now archaic, word meaning a voyage or expedition.(17) Thus, “herring-fare” would be an obsolete way of referring to a “voyage to catch herrings."(18)In the same vein, “warfare” means “a going to war...the action of carrying on, or engaging in, war."(19) Using this method, “lawfare” would indicate a voyage into the law. However, the term is probably more accurately described as a play on the word “warfare.”

In late 2001, Major General Charles Dunlap first used the term “lawfare” in its present incarnation.(20) In Law and Military Interventions, Dunlap explains,

Lawfare describes a method of warfare where law is used as a means of realizing a military objective...There are many dimensions to lawfare, but the one increasingly embraced by U.S. opponents is a cynical manipulation of the rule of law and the humanitarian values it represents. Rather than seeking battlefield victories, per se, challengers try to destroy the will to fight by undermining the public support that is indispensable when democracies like the U.S. conduct military interventions.(21)

Although Dunlap did not coin the term, he popularized its use as a substitute for the word “warfare” in which the conflict is with words as opposed to swords.(22)

A search for the term “lawfare” in the Hein Online Law Journal Library database from 1957 to the present time generated 149 results.(23) The earliest is a 1957 article regarding divorce which states: “The canton, clearly reduced in status, still is a state with standing in court to wage some lawfare on behalf of its folk, and with liability for some behavior of its folk."(24) The next result was a 1983 book review referencing a courtroom advocacy tactic labeled as “guerilla lawfare."(25) From 1990 to 1999, all ten references to “LawFare” were used in advertisements for discounted airfares for lawyers.(26) In early 2001, anthropologist John Comaroff used the term “lawfare” to describe a coercive legal tactic used to dominate a colonized people.(27)

Use of the term has multiplied in recent years. Of the total 149 results for “lawfare” on Hein Online, 122 of them are dated from 2006 to 2010 (nearly 82% of the total results ranging from 1957 to the present).(28) The term is most commonly used in the military and international law context.(29) The 149 results in Hein Online for “lawfare,” are further categorized into subject areas with 36 results in Military Law, 36 in International Law, and 9 in Comparative Law.(30) The law journal titles that most commonly cite the term “lawfare” are mainly military in nature.(31) The country of most frequent publication of the term is the United States, with 113 out of 149 results (nearly 76%).(32) The next country is Canada with 4 results.(33)

While previous usages of the term lawfare addressed airfare discounts and colonialism, most uses from 2006 and onward are military ones.(34) The military dimension of the term is evidenced by the existence of organizations like The Lawfare Project, which recently convened a conference on the subject.(35) The Lawfare Project defines lawfare as “the use of the law as a weapon of war, or more specifically, the abuse of the law and legal systems for strategic political or military ends."(36) It describes lawfare as a threat and tactic waged by the enemies of Israel and the United States as a way to undermine democracy and the rule of law.(37) Its two principal directors, Brooke Goldstein and Aaron Eitan Meyer use the term “legal jihad” as a synonym for “Islamist lawfare tactics,"(38) and indeed, the comments of many “lawfare” proponents share not only a pro-Israeli perspective, but also have a decidedly anti-Muslim sentiment as their subtext. Even the brochure for this conference (at Case Western Reserve University Law School) seems to identify the Goldstone Report as a problem, while ignoring the actual human suffering inflicted by Operation Cast Lead, to which the Report was a response.

Arguably, such controversial interpretations of the term lawfare are distorting Dunlap’s ideas. In Lawfare Today: A Perspective, Dunlap expressed concern about lawfare’s misuse,(39) explaining:

Lawfare is a concept that is ever more frequently discussed in government, academic, and media circles. Regrettably, that discussion is not as informed as it might be.(40)

...It is a mistake, however, to reduce “lawfare” to a mere component of a glorified propaganda campaign. In truth, it is a richer and far more complex concept – and one, lamentably, subject to misunderstanding.(41)

A LexisNexis search of the term “lawfare” in both newspapers and law review articles reveal that the term is applied to contexts as varied as the Mexican drug war, Israel and the Goldstone Report, Guantanamo Bay, hate speech litigation and so on.(42)

Conclusion

In all societies, a tension exists between the human rights of individuals, and the needs of public security. This is as true for international law as it is for domestic law, and the architects of international humanitarian law and international human rights law must be aware of and balance those tensions, just as the legislature and the courts attempt to strike that balance in municipal law. Thus, while it is perfectly appropriate to challenge a particular legal provision, and suggest amendments of modifications thereto, suggesting that use of the law itself is improper is deeply problematic. The image of the brochure for this Conference appears to depict soldiers aiming their guns at a courthouse that looks much like the United States Supreme Court. This image suggests to us what the dominant meaning of lawfare – as currently used – is really all about. It is an effort to attack and dismantle legal norms – and even some legal or international institutions – in order to promote the efforts of America’s (or Israel’s) military. In that sense, it is not really about law at all, but is a crude policy argument that poses a frontal challenge to the U.S. constitutional system, as well as the specific rules of war, international human rights law, the international legal system, and even U.S. constitutional rights such as the right to habeas corpus. The notion of “lawfare” may make for good television sound bites, or catchy conference titles, but it substitutes those sound bites for careful analysis. Through innuendo and sleight of hand, lawfare advocates equate judicial processes with terrorists, thoughtful and probing investigative reports like the Goldstone report with attacks on State security, and petitions for habeas corpus with war. As Charlie Dunlap himself has written in his contribution to this symposium, we are better off using law rather than bullets to resolve international disputes.(43)

Dunlap himself did not necessarily advocate for this distortion, but since the term has no real fixed meaning, as our survey shows, it was both easy and perhaps predictable that his popularization of the term in the military context would have this result. For even his own discussion of lawfare has a tendency to see individuals fighting the United States as inherently less deserving of legal protections than U.S. citizens and residents. He suggests, as do more extreme proponents of lawfare ideology, that the United States and Israel are suffering from military disadvantages because of the application of humanitarian law to a particular conflict or the invocation of human rights norms to protect individuals caught up in that conflict. The remedy to these disadvantages proposed is either to change the law or remove those individuals from its protections, while keeping protection for US and Israeli nationals. The latter solution runs into serious moral objections, given the inherent sanctity, dignity and equality of all human life, and thus it is unsurprising that this approach garners little favor with most States and international lawyers.

Lawfare advocates appear to be waging a public relations campaign, not really making legal arguments, which makes the topic for this conference a puzzling one. (Are we supposed to develop a theory of lawfare? Lawfare rules? Propose amendments to the Geneva Conventions to exclude certain individuals? The purpose is unclear). Lawfare advocates are attempting to portray strong parties (the U.S. and Israeli governments, for examples) as “victims” suffering at the hands of weaker parties, and particularly in the ugly theatre of middle east politics, hope that lawfare will help bring them public sympathy. But at what cost? Arguing that the law and those that use the law are the enemy has a dangerous ring to it, and corrodes respect for the rule of law more generally. Law is created by the State, after all, and an attack on the law is, in a sense, an attack on the foundations of society.

Lawyers are often a most unpopular class of individuals, and rules of law can annoy as much as protect. Yet a society – even an international society – without law and lawyers is a chaotic and poor place, one even more prone to disorder and violence than the one we inhabit today. Aristotle wrote in the 4th century before the birth of Christ, that the only stable state is one in which all men are equal before the law. This is true of the international legal system as well. Formulating international legal rules so that they apply equally to both rich and poor, powerful and weak, creates a better ordered community in which peace and stability may not just be the imaginings of a utopist future, but the features of a real present.

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