Lawfare: Real Threat or Illusion?
Friday, November 05, 2010
Speech Delivered by Brooke Goldstein
The Lawfare Project is extremely grateful to Pace University Law School and to the Women's Rights and Federal Courts Committees of the NYCLA for their co-sponsorship, and we are most honored to have the opportunity to host three very distinguished colleagues: Mr. Horton, Professor Dershowitz & Dr. Gorka, who have agreed to facilitate & engage in a long overdue discussion about lawfare.
But what is lawfare? Despite the term's now widespread use, there has been a lot of debate surrounding its definition. The most basic is the one proffered by Major General Charles Dunlap, former deputy judge advocate general of the United States Air Force, who, in his 2001 Harvard Law Review Essay, defines lawfare as "the use of the law as a weapon of war, . . . the most recent feature of twenty-first century combat."
"[F]oes of the United States," Dunlap wrote, who are unable to "seriously confront – let alone defeat – America militarily" are realizing their objectives through legal means. Their strategy, to undermine the American people's support for our troops by making us believe that war is being conducted, in an unfair, inhumane way. Because our troops, unlike those of dictatorships, derive their legitimacy and their will to fight from the support of the electorate, which is essential to a democracy's successful military intervention, and there are many examples cited in Dunlap's essay, when the mere orchestrated perception of law of war violations has significantly impacted U.S. military operations.
Now, there is no doubt that democracies have increased the role international law plays both in planning and executing military activities. General Wesley Clark has written about what he calls "the remarkably direct" and "unprecedented" role lawyers play in managing U.S. combat operations. The United Kingdom, for example, now positions an officer from the Army Legal Services Branch in every unit of the British Army. And, during its 2009 Gaza Strip campaign, the IDF, in an effort to minimize civilian casualties as well as ensure adherence to humanitarian principles of armed conflict, not only dropped 250,000 leaflets to warn civilians to flee areas it was attacking, but also deployed lawyers within each of its divisional commands to advise officers on the front lines as to which targets they could and could not attack under international law. In fact most democracies have moved towards systemic implementation of the laws of armed conflict in a way unparalleled in human history – and this is a good thing! But this is not lawfare, nor a direct result of lawfare, and the fact that democracies are endeavoring, more now then ever, to adhere to the rule of law is not itself a determining factor when deciding whether or not lawfare is indeed a credible danger.
If I may add to General Dunlap's 2001 definition, lawfare is about more than just delegitimizing a state's right to defend itself; it is about the abuse of the law and our judicial systems to undermine the very principles they stands for: the rule of law, the sanctity of innocent human life, and the right to free speech. Lawfare is not something in which persons engage in the pursuit of justice; it is a negative undertaking and must be defined as such to have any real meaning. Otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law, on the one hand, and what is lawfare, on the other.
Because that is the essence of the issue here, how do we distinguish between that which constitutes a constructive, legitimate legal battle (even if the legal battle is against us and inconvenient) from that which is a counterproductive perversion of the law, which should be allocated no precedent? The delineation is not as simple as some may like to make it; that is, that lawsuits against terrorists are good, and legal actions against the U.S. and Israel are bad. Now, the question is not "who is the target," but "what is the intention" behind the legal action: is it to pursue justice, to apply the law in the interests of freedom and democracy, or is the intent to undermine the system of laws being manipulated?
Now, the central question we are asking our panelists today, and around which there is considerable disagreement, is whether or not lawfare indeed poses a real and imminent threat to the United States, to its allies, and to liberal democracy in general. Are legal actions, as General Dunlap appropriately asked, "becoming a vehicle to exploit [our] values in ways that actually increase risks to civilians?" Is it operating to undercut our ability "to conduct effective military interventions?" Is international "law becoming more of the problem . . . instead of part of the solution?"
In my humble opinion, the magnitude of lawfare's threat can be measured directly from its manifestations, and there is no shortage of case examples. We are currently witnessing what some have labeled libel-lawfare: legal actions, both at home and abroad, aimed at silencing and punishing free speech about issues of national security and public concern. Such lawfare takes the form of defamation and "hate speech" lawsuits filed against politicians, journalists, counter-terrorism experts, members of the media, cartoonists, authors, anyone brave enough to speak about radical Islam, terrorism and its sources of financing.
What has resulted is an environment where former NYPD counter-terrorism officials, like Bruce Tefft, have been sued for workplace harassment for posting 9/11 briefings on terrorism. Where American officials, like former U.S. Congressman Cass Ballenger, are subject to a libel suits for reporting organizations, such as the Council on American Islamic Relations, to the FBI as a "fundraising arm for hezbollah." Where the Wall Street Journal and the New York Times have each been sued, respectively, for reporting on government investigations into terrorist groups and the monitoring of Saudi bank accounts.
What has arisen is a situation where democratically elected politicians in the Netherlands, Austria, Sweden and Finland are being charged with the crime of "hate speech" for speaking to their constituents about Islamist terrorism. We are living in a time when a Danish cartoonist is thrown into jail for printing images of Islam's prophet Mohammad, in his own country! We live in a time when authors like Mark Steyn are hauled before Canadian "human rights" commissions for writing about Islam and its demographics. When Swiss magazine editors are indicted for the crime of "vilif[ying] members of the Islamic religion." And when U.S.-based cartoon networks and a university printing press are too afraid to republish any image deemed offensive to Islam out of fear of violent reprisal. And they have a point. Film director Theo Van Gogh was stabbed in the streets of Amsterdam for his film on Islam's treatment of women, co-produced by Ayaan Hirsi Ali, currently living in hiding in the United States. Wafa Sultan, Irshaad Manji, Hassan Daioleslam, Geert Wilders, Kurt Vestigaard: all have been targeted with death threats for exercising the fundamental human right to free speech.
At the same time, we are witnessing lawfare at the United Nations by parties like the Organization of the Islamic Conference (OIC), a 57-member voting block very adept at maneuvering within the U.N. to define international law in its best interests. Such is the case with the successful passage of Human Rights Council Resolution 7-19, an Orwellian document, which attempts to outlaw not just speech but ideas that may be offensive to Islam, and which condemns the identification of Islam with violence. What do you think the chances are that this provision will be applied to self-described terror group Islamic Jihad, which advertises killing in the name if Islam? It would be wrong not to mention the OIC's attempt to exclude the targeting of American, British, French and Israeli citizens from any international definition of the crime of terrorism, which has resulted in a complete stalemate. Currently, there is no accepted legal definition of terrorism in international law. We often hear the argument that "one man's freedom fighter is another man's terrorist." How can we expect people, much less the United Nations, to distinguish terrorists and hold state sponsors of terrorism legally accountable when they cannot even define the term?
We see lawfare in the abuse of "universal jurisdiction" laws where Israeli, U.S. and British officials face charges of "war crimes" in England, Spain, Belgium, Switzerland, Canada and New Zealand, as well as other jurisdictions. It is not about the fear of inconvenient lawsuits in inconvenient forums that makes this particular manifestation troubling. But when Israeli officials cannot travel to England because they might be arrested, yet Hamas and Hezbollah members remain free to cross European boarders, we are witnessing hypocrisy and bias in the application of the law. What has amassed, as Dunlap so aptly pointed out in his essay, is a "disturbing [amount of] evidence that the rule of law is being hijacked . . . to the detriment of humanitarian values as well as the law itself."
Whatever you call it, lawfare or otherwise, there is indeed a worrisome trend. And even if lawfare is being used as a "catch-all term," the fact remains that we have a real problem. Arguing that lawfare is a good thing, that our enemies should be entitled to use the system to further their goals, as if this is some alternative to violence, as if their goal will no longer be the destruction of democratic values, saying that lawfare can be a positive action, seems somewhat counterproductive. When international law is interpreted to prove an inadequate guarantor of the basic right to self-defense and the bodies tasked with applying the law are controlled by theocracies, dictatorships, and groups with a special interest in curtailing free speech, and when its courts are politicized, the perception of international law and its organs becomes one of distrust, contempt and, ultimately, indifference. This outcome is not in our interests. What kind of credibility do we give a U.N. that elects Saudi Arabia to a four-year seat on its Commission on the Status of Women? If these trends are allowed to develop and to mature, international law itself may become, as lawyers David Rivkin, Jr. and Lee Casey put it, "one of the most potent weapons ever deployed against the United States" and its allies. There are many questions that remain definitively unanswered.