The dangers of lawfare.

• Author: Horton, Scott
• Position: Symposium: Lawfare

1. INTRODUCTION II. A PERPLEXING NEOLOGISM A. Lawfare at Guantdnamo B. Pakistan's Lawfare Coup C. The Netanyahtt Initiative III. CONCLUSION [ILLUSTRATION OMITTED]

   Edouard Manet, The Battle of the Kearsage and the Alabama, 1864.

1. INTRODUCTION

   This painting by Edouard Manet captures an important engagement of the American Civil War--a sea battle between the U.S.S. Kearsage and the C.S.S. raider Alabama, fought on June 19, 1864, off the coast of Cherbourg, France. (1) The Alabama had, over the objections of the United States, been constructed secretly by an English firm in Merseyside and turned over to a Confederate crew. (2) For several years, it had preyed on American shipping---clear evidence of Britain's covert support for the Confederacy during the War, at least in the minds of many Americans. (3) Eliminating this threat was a priority for the U.S. Navy, and when Americans learned that the Alabama had put to port at Cherbourg, the Kearsage blockaded it in the harbor. (4) At length, the Alabama tried to fight its way out. (5) But it was no match for the Kearsage, which won the engagement. (6) The Alabama was sunk, and several days later, while the Kearsage was docked at Boulogne-sur-Mer, Manet visited it and began studies for his painting. (7)

   This is one of two politically themed paintings by Manet in this period. The other, of course, is the "Execution of the Emperor Maximilian" from 1867-68, which can be found in the Boston Museum of Fine Arts. (8) We know a bit of Manet's political sympathies at the time from his correspondence and from the recollections of his friends: he was a republican. (9) He detested the fact that under the Emperor Napolron III, who had betrayed the republican cause, France had sought to undermine the nascent democracies of the Americas by toppling the republic in Mexico to install the Emperor Maximilian. (10) Further, France had covertly supported the Confederacy in the hopes that the United States, then the world's democratic beacon, would be destroyed. (11) Although Manet is a realist in the strict sense, his choice of subject sends a clear message. He was celebrating the victory of the United States over the forces of slavery in one painting, just as he took pleasure in marking the final ignominious failure of Napoleon III's Mexican escapade in the other. (12)

   But what does this wonderful painting have to do with the subject of lawfare? Its relevance is suggested by Mark Janis, who used it as the cover art for his recent magnificent book on the history of the U.S. engagement with international law. (13) The sinking of the Alabama and the final triumph of the Union over the Confederacy did not end the Union's grievances about the losses America suffered from the British-built rebel raider ships, Janis reminds us. (14) At the end of the Civil War, America tallied its losses from British support for the Confederacy. Charles Sumner, then the chair of the Senate Foreign Relations Committee, demanded that Britain pay two billion dollars in damages--half the total cost to the Union of the war effort--or cede all of the newly formed Dominion of Canada to the United States. (15) Major American newspapers, led by Horace Greeley's New York Tribune, beat the drums for war against Britain. They pointed out that America then possessed the largest and most experienced standing army in the world, and that British North America was defended by only a handful of soldiers. It would be child's play for the Americans to simply sweep across the Great Lakes and add Canada to the United States--fulfilling a plan which, in a forgotten chapter of American history, George Washington himself had endorsed in 1775. These plans did not get very far, however.

   The day was captured by other, more level-headed voices: a collection of lawyers, academics, and religious leaders who became known first as the American arbitration movement and then as the international law movement. (16) The American claims relating to the Alabama went to an arbitration tribunal, as Harper's reported in its November 1872 edition, which ultimately ruled for America. (17) Britain paid a damage award of $15.5 million, a sum unprecedented up to that time (roughly $1.25 billion in current dollars). (18)

   This was a decisive step in America's history on the world stage. First, Britain in short order ceased to be viewed as America's hereditary enemy--in the decades to come it would be viewed as an increasingly close ally. (19) Second, in the fifty years following the arbitration, American administrations of both parties, but principally Republicans, took the lead globally in advocating arbitration as a means of resolving differences between nations, including resolving private claims. (20) They also led the way in the formation of the International Law Association in Brussels in 1873, and the Hague Conferences, which codified the law of nations, and particularly the law of armed conflict. (21)

   In 1913, the Judge Advocate General of the Army presented a briefing to the American Society of International Law together with posters and indices. (22) He demonstrated that the American concept of the laws of war, as originally laid down by President Lincoln, had been converted into accepted international legal norms through effective American diplomacy pursued at The Hague and in major capitals around the world. (23) President Theodore Roosevelt received a Nobel Peace Prize for his critical role in brokering the peace between Russia and Japan following their 1904-05 war. (24) This is a proud legacy of American foreign policy, a legacy forged over half a century and involving administrations of both parties, and a legacy that advocated the peaceful resolution of disputes through arbitration as a vital tool for the avoidance of war.

   But then we come to the Bush Administration's 2005 National Defense Strategy:

   "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," it states in stark Neoconservative ideological terms. (25) Note the equation of "international fora, judicial processes, and terrorism." (26) In other words, turning to courts for the enforcement of legal rights, appeals to international tribunals, and terrorism are seen as the elements of a single consistent enemy strategy.

   There is no way to reconcile this attitude with the one that marked American governments between Abraham Lincoln and Franklin Roosevelt. It is a categorical repudiation of a century of American policy promoting the use of international legal process as a means of resolving disputes that might mature into armed conflict. It also marks the emergence of the Neoconservative doctrine of lawfare. Their real target is international law itself.

   But rather than attack international law, they choose instead to go after a far juicier proxy: lawyers, especially those who work within the international process and who argue for American fidelity to that process. (27) This, the Neoconservatives argue, is an effort to usurp the Constitution and undermines popular sovereignty by imposing foreign ideas on a government elected freely by the U.S. population. (28)

   These arguments cannot really be reconciled at all with the ideas of the Founding Fathers. The Founders spoke of a "decent [r]espect to the [o]pinions of [m]ankind" in the Declaration of Independence--an instrument that was guided by very aggressive notions of the rights of peoples against states and the obligations of states amongst one another. (29) And in the Constitution, the Founders gave prominent placement to the Law of Nations. (30) It was clear that in the minds of many of the Founding Fathers, particularly those most engaged in preparing foreign and national security policy for the fledgling nation, international law promised an essential shelter against the heavy hand of the British monarchy. (31)

   The Neoconservatives, however, have a totally different attitude towards international law. They believe that international law in general, and the laws of armed conflict in particular, unduly constrain the actions of America on the world stage. (32) Consequently, they seek at every turn to eliminate or undermine it. (33) Central to their argument is that, at least when presidents govern with Neoconservative advisors, international law imposes no meaningful limitations on their ability to act. (34)

   The notion of "lawfare" has been developed to buttress this attitude. "Lawfare," as it has been applied recently, is intended to intimidate and silence lawyers; it equates them with the enemy and suggests that their arguments contain at least a seed of treason. (35) Using the tactic common to authoritarian regimes around the world, the lawyers are presented as simple extensions of their clients. (36) Their briefs are presented as a continuation of warfare into a courtroom, as former Bush Justice Department lawyer John Yoo has argued. (37) The charge of lawfare is designed to short-circuit the legal process. (38) It assumes the bad faith of the adversary from the outset; it counsels against engaging or answering the charges.

   But if we examine the use of the "lawfare" charge in two powerful historical examples, we can discern a more troubling truth behind the label. The term was not used because the legal attack was frivolous, but rather because the government really had few solid arguments to make in its own defense. The charge of "lawfare" was brought to distract attention from the fact that a government was acting with reckless disregard for its legal duties.

2. A PERPLEXING NEOLOGISM

   What does "lawfare" mean? At this point, it is confusing. I have used it in my own writings to refer to those who espouse the concept, to them as the "lawfare-theorists." (39) Major General Charles Dunlap gets credit for initiating the current American discussions, although a number of others have had a shot at it. (40)...