Waging lawfare

Over the course of the process that culminated in the confirmation of Samuel A. Alito, Jr., as an Associate Justice of the Supreme Court, exhaustive inquires sought to determine how the nominee’s judicial philosophy would impact the Nation on any number of fronts.

Almost entirely missed, however, was an opportunity to raise awareness of what is developing into the most significant legal phenomenon of the new century – one that we ignore at our own peril, moreover, as it constitutes a very threatening form of asymmetric warfare being waged against the United States. What is this menace? Lawfare.

Lawfare can generally be defined as a strategy of the weak employed to debilitate and defeat the United States through the manipulation of international and domestic legal fora, opinion and processes. Lawfare’s effectiveness lies in the fact that ours is a country so strongly committed to the rule of law that it will often bend over backward to appease charges of illegality – however specious – to the detriment of its own interests. This arrangement is recognized, appreciated, and most importantly actively encouraged by adversaries of American power.

Lawfare’s Three-Pronged Attack

In this campaign to diminish American prowess, lawfare is waged on three tactical fronts – the establishment of treaty obligations, the procurement of artificial "legal norms" and the imposition of those by agents within the bureaucracy and on the federal bench.

• At the diplomatic level, foreign governments wage lawfare by pressuring the United States to become party to international regimes that assume decision-making authority in critical areas. One of their favorite tactics, accordingly, is the creation of treaties whose provisions "level the playing field" with the United States. Of course, these agreements are often aimed at little more than limiting the flexibility our government needs to develop policies capable of defending America and advancing its interests. Hence, the U.S. has been rabidly castigated for its unwillingness to submit to the International Criminal Court, the piece de resistance of lawfare advocates.
• In addition to these formal apparatuses, lawfare is buttressed by demands that the U.S. abide by so-called legal norms, both domestic and international. These "standards," however, are often artificially created by nothing more than the policy pronouncements of politicians, NGOs and/or the U.N. General Assembly. But because champions of American interests too often ignore rather than challenge their assertions, otherwise legally insupportable, politically charged policy declarations are coming to define the parameters of legal thought in the minds of America’s citizens.

  By using legal-norms arguments to shape public opinion, pressure is indirectly applied on policymakers to adopt practices inimical to the Nation’s security. A prominent example of this approach can be seen in the campaign to paint the Patriot Act as a threat to the civil liberties of law-abiding Americans, leading many Senators who supported the original legislation into their current attempt to water-down or kill provisions critical to its effectiveness.

• Loath to wait patiently for authority-subordination and political influence operations to take hold, however, lawfare’s prescriptions are, increasingly, simply imposed by its agents on the federal bench and within the bureaucracy. As an example of just how egregious such violations can be, consider the following:

  Despite the Senate’s 1977 refusal to accede to Protocol I to the Geneva Convention that effectively grants POW rights to non-state militias, in November 2003 – amid increasingly strident claims by foreign governments, NGOs, and a minority of American politicians that the U.S. was operating illegally in the detention of terrorists at Guantanamo Bay – federal District Judge James Robertson determined that "general international understandings" were sufficient in extending POW status to al-Qaeda operatives held at Gitmo.

  Similarly, State Department lawyers have unilaterally determined that the utilization of riot control agents – non-lethal substances such as tear gas – by the U.S. military would violate the 1992 Chemical Weapons Convention. This despite the fact the Senate demanded, as a condition for approval of the CWC, and received assurances that certain applications of RCAs by the military were permissible, an understanding that until now was upheld by Republican and Democratic administrations alike.

The Bottom Line

It is time for the United States to fight back – a counteroffensive that first requires the identification of lawfare as a very threatening form of asymmetric warfare being waged against this country. From there, U.S. policy-makers alarmed by the phenomenon can reject treaties that would constrain the flexibility necessary to meet current and future challenges; discontinue conceding the legal-norms debate to self-professed authorities hostile to U.S. interests; and block the appointment of jurists and hiring of bureaucrats who would make legal determinations based on anything other than U.S. law and precedent.

The Alito nomination presented a valuable opportunity to open a national discussion – one that, unfortunately, was almost entirely missed when Senate hearings devolved into a partisan show trial. But for thoughtful questioning from Senators Jon Kyl of Arizona and Tom Coburn of Oklahoma, we would not have discovered that, thankfully, Judge Alito appears stationed firmly in the anti-lawfare camp.

Fortunately, Congress maintains the ability to play an important role in calling attention to the many ways in which lawfare is being waged against us, most immediately by initiating a series of hearings on the subject. In absence of such an exposition, lawfare’s supporters will be all too happy to continue to fill the ideological void.