Lawfare or strategic communications?

• Author: Noone, Gregory P.
• Position: Symposium: Lawfare

This essay attempts to trace the evolution of the term "Lawfare." Major General Dunlap inserted lawfare into our legal lexicon over a decade ago as a tool to communicate themes to military commanders. However, since that time it has primarily taken two divergent paths. One as Dunlap intended--as a discussion of applying legal pressure on the other side of a conflict, and the other as a derogatory term with an ideological goal. This essay also addresses lawfare and its potential relationship to "Strategic Communications" with an extensive discussion regarding this umbrella term and all it encompasses. Finally, this essay poses the question of whether there is a legitimate versus illegitimate--or put another way--a legal versus illegal--lawfare construct. Ultimately, lawfare provides for the use and understanding of the law and especially the need to emphasize the pragmatic utility of the law to military commanders in an ideologically neutral way.

1. DUNLAP'S LAWFARE II. LAWFARE' S EVOLUTION III. THE RULE OF LAW IV. STRATEGIC COMMUNICATIONS V. ARE THERE LEGITIMATE / LEGAL AND ILLEGITIMATE / ILLEGAL FORMS OF LAWFARE? VI. CONCLUSION I. DUNLAP'S LAWFARE

   Lawfare, as originally conceived in the late 1990s by retired Major General Charles J. Dunlap, Jr., of the U.S. Air Force, was an ideological neutral term describing an effects-based operation "where the effect created is the focus, not necessarily the means of obtaining it.'' (1) In other words, lawfare was a way to apply legal pressure on the other side of a conflict, often times, but not always, in conjunction with military operations, which then potentially forced the enemy to defend themselves in multiple arenas. The concept was designed for an initial audience of military commanders so that they could better understand the role and potential contribution of the military lawyers (judge advocates--commonly referred to as JAGs). (2) Major General Dunlap provides numerous examples of lawfare. Chief among them is the U.S. Government's legal purchase of all the relevant commercial imagery prior to military operations in Afghanistan in 2001 in order to deprive actual and potential enemies from obtaining and using such information. (3) Major General Dunlap also cites sanctions as the single most important weapon in debilitating the Iraqi air force and the choking off of financial support of terrorist networks and insurgencies as effective lawfare. (4)

   However, sometimes an effort to use lawfare can backfire. As used against the United States and our allies in Afghanistan it had great effect when our military leadership made public the very restrictive rules of engagement in an effort to win the hearts and minds of the Afghan people. (5) In order to demonstrate how serious the coalition was in their desire to end civilian casualties in Afghanistan, the leadership on the ground made it clear that the United States would not drop any ordnance if there were a single civilian present. (6) The unintended consequence of this self-inflicted lawfare included civilians being taken hostage, used as human shields, and or murdered by the Taliban, as well as more coalition deaths, and the ultimately perverse effect of eroding support. (7)

   Major General Dunlap stated a refined lawfare definition in his 2009 Joint Forces Quarterly article as "the strategy of using--or misusing--law as a substitute for traditional military means to achieve an operational objective." (8) With that said, Major General Dunlap encourages the use of the courts and views them as a healthy facet of lawfare. He firmly believes that court challenges to U.S. policy make us "better and sharper" and that the United States should never be afraid of litigation. (9)

2. LAWFARE' S EVOLUTION

   The question now is whether "Dunlap's Lawfare" has evolved into something more than he envisioned. The term lawfare has become a catchy term when describing a bitterly contested divorce as a "war" or child custody "battle," whereby the lawyers are cast as "warriors.'' (10) The term has also been employed by the political far right deriding any legal forums and or procedures that they disagree with. (11) In particular, this faction's two main objectives are to discredit international law and delegitimize their opponents--policy or otherwise--who use legal institutions as a tool. (12)

   First, their attack on international law is relentless as they deride international tribunals and treaties. For example, several conservatives oppose U.S. ratification of the United Nations Convention on the Law of the Sea (UNCLOS), despite the support of every President since Ronald Reagan, the Department of Defense (DoD) and the U.S. Navy, to name just a few. (13) Their efforts are not merely honest disagreements, and can only be considered disingenuous fear mongering as they continually misrepresent what UNCLOS ratification will mean to the United States. (14) One of the loudest arguments that defies reality is that the United States will surrender our sovereignty to the United Nations. In fact, it has been argued by many who understand UNCLOS in the United States that ratification would result in essentially a "U.S. land grab" that would expand U.S. sovereignty and rights throughout the U.S.'s maritime territory. (15)

   Second, the conservatives on the far right attempted the demonization and de-legitimization of lawyers who either oppose policy positions or directly represent individuals that they determine are not worthy of representation--particularly those involved in Guantanamo Bay (GTMO) detention issues. A prime example is in 2007, when the then Deputy Assistant Secretary of Defense for Detainee Affairs, Charles "Cully" Stimson, made statements questioning who was funding the lawyers for GTMO detainees--implying some nefarious financial backing--as well as calling out CEOs to make law firms choose between representing their company or terrorists. (16)

   Is this lawfare? No, because this is essentially a war against law and not the use of law to achieve an objective. In this context, the term lawfare has become "code"; mere mention of the term connotes an entire argument for conservatives (Neo-Cons in particular) for all things international law and those who represent alleged terrorists. The use of code words in politics is not new and examples include terms such as "activist judges," "Obamacare," and "mainstream media.'' (17) Lawfare cannot be allowed to become the new "judicial activism," whereby where you sit is where you stand. After all, those who cry "activist judge" the loudest are those who disagree with the decision in the same way the victors extol the judges' wisdom and fidelity to the Constitution.

   The bottom line is that the conservative lawfare argument is in actuality a public relations campaign and not a legal argument. The far right faction is making a policy argument that challenges the Constitution. Alternatively, conservative lawfare advocates vilify the courts and lawyers who stand for unpopular positions. David Frakt refers to it as "lawfear" whereby the entire phenomenon is invented in order to scare people. (18)

3. THE RULE OF LAW

   Nearly every nation on earth employs lawyers to aggressively practice international law in order to further national interests. A legitimate question is whether lawfare has become a term of art for any attempt to achieve one's national interests through a legal avenue. In other words, is it all just the normal application of international law, but as soon as it is misused, or used against your interests, does it then become lawfare?

   From the U.S.'s perspective, the rule of law offers a powerful mechanism to end violence and the U.S. cites what it considers positive examples, such as the use of law in an attempt to solve issues in Kosovo, Cyprus, and Northern Ireland. (19) The United States hails bringing...