The value of claiming torture: an analysis of Al-Qaeda's tactical lawfare strategy and efforts to fight back.

• Author: Lebowitz, Michael J.
• Position: Symposium: Lawfare

1. INTRODUCTION II. CLAIMING TORTURE TO SHAPE THE BATTLEFIELD A. Tactical Lawfare B. Faux Torture C. The Torture Benchmark D. Legal Advice, Courtesy of al-Qaeda, Esq III. MILITARY COMMISSIONS CIRCA 2010 A. Reconciling the National Security Dynamic with Legal Proceedings B. Tackling Torture Issue through Improved Military Commissions Act IV. PROPAGANDA V. REALITY A. GTMO over Supermax: Life's a Beach B. Lawfare Tactic Backfires V. RECOMMENDATIONS A. A Uniform and Attached Detainee Documentation Form B. Indigenous Training C. A Unified Media Plan VI. CONCLUSION I. INTRODUCTION

   Rule #1: "Insist on proving that torture was inflicted.

   This guidance was included in a notorious al-Qaeda handbook that was discovered in a Manchester, England safehouse. (1) That handbook raised eyebrows for not only its meticulously cold direction toward facilitating terrorist operations, but also for its perceptive legal savvy relating to Western courts. (2) But, while the extent of how far this manual was followed is certainly questionable, the fact remains that accused terrorist operatives since September 11, 2001 have followed its principles relating to the torture message and are credited with "paralyzing" international intelligence services and military operations in a manner that is much more effective than bombs and rifles. (3) As such, this tactic goes beyond merely scoring public relations points, and instead achieves tangible tactical victories, albeit in an unconventional manner. The weapon is an attorney and the battlefield is the courts. The battle cry is "torture." It has taken nearly a decade for world governments to develop a means for fighting back.

   Detainees and litigants ranging from Guantanamo Bay, Cuba to Pakistani courts have dutifully followed principles of the step-by-step al-Qaeda handbook instruction as their torture claims blitzed through the media and legal systems. (4) Defense counsel and human rights organizations continued the "torture" narrative as they amassed public relations, political, and legal victories. (5) For example, federal judges in habeas corpus cases ordered accused terrorists freed because the government often could not prove the negative, or in other words, had no evidence one way or the other that could contest both detainee and witness assertions that torture occurred. (6) A military commission case against an Afghani accused of attacking a U.S. Army convoy in 2002 did not fare much better for the government after confessions to American interrogators were thrown out due to assertions that Afghan forces issued verbal threats at the time of capture. (7)

   All of this had occurred masterfully despite the fact that many other torture and mistreatment claims were quietly debunked. (8) Still, the tactic was proving to be a winner with politicians and the media, as well as the courtroom. In 2009, Barack Obama's first act-as President was to remove the international rebuke over Guantanamo Bay (GTMO) by ordering its detainees transferred to a U.S. prison facility. (9) This offered proof that the al-Qaeda guidance of using lawfare--legal recourse as a weapon in shaping the global battlefield--was reaping dividends. (10) And, indeed, the law has been used as a weapon. Consider that the North Vietnamese military tactic in the late 1960s and early 1970s was to use battlefield attrition and guerrilla warfare to wear down the American public's will to continue supporting the fight. In the case of the war against al-Qaeda, a calculated legal effort has accomplished similar tactical objectives without the need to conduct major offensive operations. (11) By following what was tantamount to scripted legal advice, detainees and their advocates in the aftermath of the 9/11 attacks launched a massive campaign through various court systems worldwide. (12) The common theme of these legal attacks was "torture." (13) And the weight of these attacks went beyond the confines of moral and public relations arguments as they also led to policy and strategic pressures that were far removed from the courtroom. The result often manifested itself into a form of tactical lawfare due to al-Qaeda's ability to shape the physical battlefield through its cumulative legal approach. (14)

   However, the story does not end there. Subtle but significant changes in 2010 toward how claims of torture are handled within the Military Commissions courtroom appear to offer a de facto method of fighting back against dubious assertions. (15) And, perhaps even more significant, is widespread evidence that the detainees themselves--longtime adherents to the principles of the al-Qaeda guidance--began clamoring in 2009 to remain in the relative Geneva Convention-sanctioned luxury of GTMO rather than transfer to an awaiting life of isolation and institutionalization within the U.S. prison system. (16) Finally, options exist that can be implemented to significantly phase out the ability of al-Qaeda and its supporters to use the cumulative mistreatment narrative as ammunition for waging tactical lawfare.

2. CLAIMING TORTURE TO SHAPE THE BATTLEFIELD

   If lawfare was al-Qaeda's battlefield tactic, then the "torture" battle cry must also be construed as its ammunition. The first publicized claims of torture relating to the U.S. response to the 9/11 attacks occurred almost immediately after photographs emanating from Guantanamo Bay's Camp XRay leaked to the press. (17) The photos featured men in orange jumpsuits living in outdoor cages. (18) Interestingly, Camp X-Ray was initially built as a detention facility for Haitian migrants during the 1990s. (19) And, despite the fact that the orange jump suits and Camp X-ray cages were limited to the first GTMO arrivals during a two-month span, the image and legacy endures. (20)

   From there, photographs from Iraq's Abu Ghraib prison became a national embarrassment while "waterboarding" became a household term, particularly after the U.S. government acknowledged that this activity took place against at least two detainees. (21) But waterboarding was only one complaint relating to both the confirmed and alleged use of torture perpetrated by U.S. officials. (22) In fact, the U.S. practice of officially condoning limited uses of torture, such as waterboarding, prior to 2005 provided a credible foundation for the al-Qaeda lawfare tactic as it festered and ultimately exhibited signs of exponential growth to be exploited. (23)

   Throughout the decade, countless purported terror suspects seized on this as they continuously invoked the torture message as a means of attacking and shaping policy on the so-called War on Terrorism. (24) By latching onto the torture narrative through the confirmed instances of mistreatment, and further taking this narrative onto the record in various legal forums, the tactic served to irreparably harm the image of the United States, removed the benefit of the doubt pertaining to government efforts to combat torture allegations, and consequently the government's ability to effectively prosecute both a war and its accused war criminals. (25) This, in turn, caused changes in U.S. military tactics. One prime example became known in early 2010 where it was opined that the Obama administration was seeking to kill potential al-Qaeda targets via aircraft and drones rather than capture them for higher intelligence exploitation. (26) That policy is cited as a direct response to the higher legal scrutiny derived from the many damaging torture claims that continue to be made. (27) In this regard, the lawfare tactic has gone beyond being a mere courtroom sideshow. It has actually caused military and intelligence operations to change in a manner historically reserved for battlefield adaption pertaining to enemy combat activity.

   1. Tactical Lawfare

      Captain C. Peter Dungan, an attorney attached to the U.S. Army's 3rd Special Forces Group, stated that the traditional concept of lawfare is "like a computer virus or a hacker's denial of service attack on a network, [where] meritless suits seek to grind the wheels of justice to a halt." (28) While that analogy describes the effects of al-Qaeda's cumulative legal approach into worldwide court systems, the concept of tactical lawfare goes a step further. Tactical lawfare is the added notion of using legal and administrative systems to more directly shape the physical battlefield. (29) For example, detainees captured by indigenous forces in Iraq and Afghanistan often reportedly make a point to claim abuse at the point of capture. (30) The same detainees will then claim abuse when turned over to U.S. or allied forces, and finally report additional abuse if they are retained in custody for pending legal action. (31) What happens is that U.S. or allied forces are duty bound per regulations and law to investigate all claims of abuse. (32) Furthermore, the burden of proof often is on the government when claims of torture or abuse are levied. The result pertaining to the tactical lawfare concept is that multiple layers of resources and manpower relating to both front-line and support roles are diverted directly away from the battlefield in order to participate in the investigatory process. (33) In short, the tactical lawfare approach of waging cumulative abuse claims is just as effective as conventional physical attacks in removing military/intelligence personnel and resources from the battlefield.

      But tactical lawfare is not limited to the area of combat operations. As this cumulative approach of claiming abuse moves from the administrative regulations level and into the courts, a similar scenario plays out in terms of using tactical lawfare to achieve the same results normally reserved for traditional battlefield or diplomatic victories. This includes the "paralyzing" of international intelligence services, releasing captured accused terror operatives back into the fight, altering military operations, opting for targeted killings to avoid having to capture, and...