Lawfare18

Lawfare seeks to defeat conventional military forces through aggressive application of law. It originated in the 1960s in law school clinics with professors who embodied a radical conception of the law “affirmatively and imaginatively used against all forms of social injustice” (McGeorge Bundy).

The ICJ responded to a UN request for an “advisory opinion” that Israel’s security fence violates international law. They based their opinion on conventions against disrupting free movement of innocent children, plausible only by ignoring the threat from Palestinian terrorists to equally innocent Israeli children. Regardless of what one thinks about the fence itself, the ICJ should not have taken the case under its own charter. The General Assembly request circum-vented the Security Council, responsible for resolving threats to peace. Israel did not consent to ICJ taking the case, as required. Finally, despite its subsequent recognition as a “nonmember observer state” in the UN, Palestine is not a “generally recognized state” eligible to bring cases to the court. Israel immediately declared that it would ignore the decision.

Some human rights groups are trying, based on the Eichmann standard requiring resistance to illegal orders, to hold government officials personally liable for carrying out national policies. Some groups are claiming that military force can be applied only to the minimum necessary to neutralize an individual, are attempting to ban many weapons as “inherently indiscriminate,” and are trying to redefine and have illegal combatants treated as criminal defendants (apparently preferring to see the problem fester rather than eliminate it).

The International Committee of the Red Cross [ICRC] has been trying since 1993 through the ICJ and other international bodies to extend the Geneva Convention for the treatment of prisoners of war to captured terrorists despite the clear language of the convention against doing so. The ICRC, denying the existence of national sovereignty, nonsensically argues that the rule has become “so widely accepted” that it is binding on the US even without its consent. The failure of the ICRC to protect captured Americans in the Korean, Vietnamese, and First Gulf wars and their lack of any public campaign on their behalf, compared with their very public advocacy on behalf of America’s enemies, exposes its hypocrisy.

Some human rights groups attempt to portray US policies as illegal. The claim to extensive due process rights for captured illegal combatants is unprecedented. This seeks to abolish a distinction first made by the Romans (see above) and subsequently incorporated into international law and legitimated by centuries of judicial precedent. The US Supreme Court reaffirmed these traditional rules in Hamdi v. Rumsfield (2004), upholding the military detention for the duration of hostilities without trial of American-born Yaser Hamdi, captured during the US invasion of Afghanistan. The Court found that “There is no bar to this Nation’s holding one of its own citizens as an enemy combatant. A citizen, no less than an alien, can be part of or supporting forces hostile to the United States or coalition partners and engaged in an armed conflict against the United States.”

In 1942, the Supreme Court ruled in Ex Parte Quirin that United States citizenship of an enemy belligerent does not relieve him from the consequences of belligerency. The Authorization for Military Force Against Terrorists adopted 420-1 in the House and 98-0 in the Senate gives the President broad authority to use force against “those nations, organizations, or persons he determines planned, authorized, committed, or aided attacks” so as to prevent any future acts of international terrorism against the United States.

The Obama administration’s redefinition of an enemy combatant specifically refers to “associated forces that are engaged in hostilities” against the US or its allies. “Associated forces” is an accepted doctrine under the laws of war and was the basis for the US attack on Vichy France in North Africa during WWII even though the Congressional declaration of war did not specifically cover it. More recently, al Qaeda in the Arabian Peninsula fell under it. A federal court ruled that “there are circumstances in which the [President’s] unilateral decision to kill a US citizen overseas is judicially unreviewable.” Subsequently, a US drone attack killed Al-Awlaki, both a leader of al Qaeda in the Arabian Peninsula and a US citizen.

Holocaust deniers, proponents of climate change and "intelligent design," neo-fascists, and Islamists have put lawfare to use trying to silence opponents. The latter have attempted to silence and punish any criticism of Islam, terrorism, or its funding sources. Vague “hate speech” laws have enabled libel and defamation suits in efforts to inhibit terrorism researchers. Libel suits are especially prevalent in Great Britain, where defendants must prove themselves innocent and pay high legal fees including those of winning plaintiffs, giving rise to “libel tourism” against authors with no connection to Britain except the availability of their books for sale by Internet merchants.

Governments and international organizations are beginning to adjust to the existence of lawfare. Several US states have adopted Strategic Litigation against Public Participation [SLAPP] statutes to protect free speech against meritless legal attack or enforcement of lawfare suits brought in foreign courts. More are in the works. It will be ironic if authorities turn lawfare into a counter-terror weapon. Extending the law prohibiting use of force against abortion patients and allowing them to sue for damages to cover free speech rights could force terrorists to fight simultaneous criminal and civil proceedings and would make it difficult for them to focus their defense resources effectively. Criminal defendants can get court-appointed lawyers, but civil defendants must pay for their lawyers and the plaintiff's burden of proof is typically lower. The broader scope of discovery could produce information otherwise unavailable to prosecutors. Simultaneous trials face defendants with the dilemma of remaining silent in the civil suit and probably losing or testifying and forfeiting their right to "plead the Fifth" in the criminal case.