Lawfare and counterlawfare: the demonization of the Gitmo Bar and other legal strategies in the war on terror.

• Author: Frakt, David J.R.
• Position: Symposium: Lawfare

If "lawfare" is "the wrongful manipulation of the law and legal systems by our enemies to achieve strategic military or political ends" against the United States and other democratic allies, then the United States needs a "counterlawfare" strategy in response. This article proposes and defines the term counterlawfare as "defensive measures to reduce vulnerabilities to the enemy's use of lawfare and actions to contain and minimize the effectiveness of lawfare, including, but not limited to- preparing the legal battlespace; denying, disrupting, and degrading the enemy's ability to use lawfare; and delegitimizing the enemy's lawfare efforts" and uses the concept to analyze the Bush Administration legal strategies in the war on terror. The article analyzes several specific legal actions, including the efforts to discredit and malign attorneys who represented Guantanamo detainees, which attacks have continued to come from defenders of Bush-era policies.

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In dealing with terrorists, our tax dollars should pay for weapons to stop them, not lawyers to defend them.

--Senator Scott Brown (R. Massachusetts) (1)

The habeas lawyers were not doing their constitutional duty to defend unpopular criminal defendants. They were using the federal courts as a tool to undermine our military's ability to keep dangerous enemy combatants off the battlefield in a time of war.

--Marc Thiessen (2)

1. INTRODUCTION II. LAWFARE DEFINED III. DEFINING "COUNTERLAWFARE" IV. APPLYING A COUNTERLAWFARE PARADIGM TO THE WAR ON TERROR A. Preparation of the Legal Battlespace B. Deny, Disrupt, and Degrade C. Delegitimize D. Attacking the Gitmo Bar." Legitimate Counterlawfare? V. CONCLUSION I. INTRODUCTION

   These quotations, one fairly mild, one rather nasty, are examples of the campaign to discredit and demonize the Guantanamo (Gitmo) Bar attorneys who represented Guantanamo detainees in habeas corpus litigation or otherwise participated in court challenges to Bush Administration detention policies. This campaign has been going on for some time, reached its apex in early March 2010 when some leading conservative commentators ratcheted up their rhetoric to unprecedentedly shameful levels. (3) The March campaign included an infamous advertisement released by Liz Cheney, Bill Kristol, and Debra Burlingame's "Keep America Safe" organization, in which Department of Justice (DOJ) attorneys, who had formerly assisted Guantanamo detainees, were called the "Al-Qaeda 7." (4) The ad referred to the DOJ as the "Department of Jihad" and openly questioned the loyalty of those lawyers who represented "terrorist detainees," asking "Whose values do they share?" (5) The campaign also included opinion articles and interviews, including pieces by Ms. Burlingame, Andrew McCarthy of the National Review, and Marc Thiessen of the Washington Post, all supported by a Fox News "Investigation." (6) A common tactic of this campaign to discredit the lawyers representing detainees is to call the lawyers "A1 Qaeda lawyers" or "terrorist lawyers," in much the same way that lawyers who represent known mafia figures are sometimes called "mob lawyers." The critics conveniently ignore the fact that the overwhelming majority of detainees represented by counsel were never even accused of terrorist acts, much less proven to have committed them.

   Here is a typical example of such an attack in the conservative press, railing against "Michael Ratner and the lawyers in the Gitmo Bar": (7)

   Lawyers can literally get us killed... We may never know how many of the hundreds of repatriated detainees are back in action, fighting the U.S. or our allies thanks to the efforts of the Guantanamo Bay Bar ... Allowing lawyers to subvert the truth and transform the Constitution into a lethal weapon in the hands of our enemies--while casting themselves as patriots--makes a mockery of the sacrifices made by true patriots ... If Sens. Patrick Leahy and Arlen Specter, chairman and ranking members, respectively, of the Senate Judiciary Committee succeed in their plan to turn enemy combatant cases over to the federal courts, we will sorely rue the day that we eliminated lawyer-tree zones." (8) The shameful smear tactics employed by Liz Cheney and her counterparts were quickly denounced by mainstream legal organizations and were the subject of media analysis for several news cycles. (9) Many lawyers, including prominent conservatives, were quick to come to the defense of the Gitmo Bar. (10) Those who criticized the attack ads and defended the work of the

   detainee bar included many of the key architects of Bush Administration legal policies in the detention and interrogation arena, "a virtual 'who's who' of officials who worked on counterterrorism policies under President Bush," according to one article. (11) For example, former Attorney General Michael B. Mukasey noted in a Wall Street Journal op-ed that "lawyers now employed at the Justice Department who, while in private practice, volunteered to represent suspected terrorist detainees, or argued legal positions supporting various rights of such detainees, have been portrayed as in-house counsel to al Qaeda." (12) He called such attacks "shoddy and dangerous." (13) The Brookings Institution released an open letter signed by several leading conservative lawyers. (14) The letter decried the "shameful series of attacks on attorneys in the Department of Justice who, in previous legal practice, either represented Guantanamo detainees or advocated for changes to detention policy" calling efforts to "delegitimize the role detainee counsel play" "unjust" and "destructive." (15)

   What many of the lawyers critical of Cheney and her ilk failed to realize, or at least failed to acknowledge, is that such extreme attacks on the character and values of the detainee bar were the logical extension of the very policies, positions, and strategies that conservative lawyers had created, developed, and supported over the preceding eight years, a strategy that I propose to call "counterlawfare."

   In this Article, I hope to define the term "counterlawfare" and explain how the concept can help us to understand much of the legal strategy employed by the Bush Administration during the "Global War on Terror." I will begin, in Section II, by explaining the concept of lawfare and its predominant usage today, as well as exploring several, in my view, misapplications of the term. In Section III, I explain my proposed concept of counterlawfare. In Section IV, I apply the counterlawfare paradigm to the actions of the Bush Administration to see if it can provide a coherent explanation for the legal strategy in the war on terror, up to, and including, attacks on the character and motives of the Gitmo Bar. In Section V, I conclude that while there may be other compelling explanations, counterlawfare does help to explain many, if not all, of the legal strategies deployed by the Bush Administration.

2. LAWFARE DEFINED

   In order to define "counterlawfare," it is important first to have an understanding of the term "lawfare," a descriptive noun popularized, if not actually coined, by now Retired U.S. Air Force Major General Charles Dunlap. According to General Dunlap, "lawfare is the strategy of using--or misusing--law as a substitute for traditional military means to achieve an operational objective." (16) "Lawfare" is typically described as a form of asymmetric warfare by adversaries of unequal power. According to General Dunlap, "It can be positive or negative." (17) In other words, in General Dunlap's view, both the proper use of the law and the misuse of the law to achieve operational objectives constitutes lawfare. However, a survey of the legal and popular literature reveals that the term is used almost exclusively in this second, negative sense. For example, according to an article by David B. Rivkin, Jr. and Lee A. Casey in the Wall Street Journal, "The term 'lawfare' describes the growing use of international law claims, usually factually or legally meritless, as a tool of war." (18)

   In a Spring 2010 speech by Brooke Goldstein, she proposed what I consider to be a useful working definition of "lawfare":

   When I say lawfare I denote the wrongful manipulation of the law and legal systems to achieve strategic military or political ends. I emphasize wrongful because lawfare is an inherently negative undertaking, it consists of the negative exploitation of the law to achieve a purpose other than or contrary to that for which the law was originally enacted. (19) So, what exactly are the military or political ends pursued by lawfare? What is it that a military enemy is theoretically trying to accomplish through manipulative legal actions? Presumably, if the legal claims are weak or meritless, the enemy would not expect to prevail in a court of law, so there must be some other objective. General Dunlap describes the purpose of lawfare this way:

   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. A principle way of bringing about that end is to make it appear that the U.S. is waging war in violation of the letter or spirit of the law of armed conflict. (20) Rivkin and Casey echo this view, asserting that "Al Qaeda and the Iraqi insurgents ... routinely claim that American forces systematically violate the laws of war" with the goal of "undermining America's political will to win." (21)

   Another commentator has described the lawfare concept a bit more skeptically:

   The idea seems to be that weak states or non-state actors could be expected to flood our courts with frivolous lawsuits, using the rights traditionally afforded by the American legal system to further their hostile ends. As the concept has been fleshed out by conservative commentators and some academics, the theory goes that "lawfare" would divert commanders' attention...