The "Lawfare" Scare

Late last month, The Wall Street Journal featured another entry in a series of op-eds from the conservative legal team of David Rivkin and Lee Casey railing against those who would challenge the administration's policies of detention, interrogation, and trial in the post-9/11 world. This time, Mssrs. Rivkin and Casey accuse lawyers who have opposed such administration policies in court of engaging in "lawfare," a term they define as "the growing use of international law claims, usually factually or legally meritless, as a tool of war."

The effect of this lawfare effort, were it successful, would be to make it exceptionally difficult -- if not impossible -- for a law-abiding state to wage war in anything like the traditional manner, bringing the full weight of the national armed forces to bear against an enemy, without prompting charges of war crimes and efforts to intimidate individual officials with prosecutions on ersatz "war crimes" theories. In fact, the criminalization of traditional warfare seems to be the goal.

Given such dangerous effects, the authors contend, the administration should seek legal sanctions whenever possible to deter and punish lawyers whose advocacy would threaten to regulate any of the more "traditional" methods for waging war.

At the risk of giving what is little more than political gamesmanship more airtime than it deserves, it may be worth a few words to point out why this latest effort hurts more than helps the authors' anti-legal cause.

Neither the term "lawfare," nor the idea behind it, is original to the authors. Both have been regularly advanced over the past five years by a small faction inside the Bush administration that advocates an extraordinarily expansive view of executive power. As the Pentagon's March 2005 National Defense Strategy for the United States put it: "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." By these lights, Americans who engage the courts to challenge government policies they believe are unlawful employ strategies comparable to those of the terrorists who flew civilian airliners into commercial buildings. As one of the approximately 950,000 lawyers in America, I find it hard to put into words just how patently silly, and deeply offensive, this is.

The latest Rivkin and Casey attack comes close on the heels of remarks by former Deputy Assistant Secretary of Defense for Detainee Affairs Cully Stimson, who (prior to resigning) urged corporate law firm clients to withdraw business from firms that have provided legal representation to detainees held at Guantanamo Bay. Under the circumstances, it is difficult not to see such instances as part of an orchestrated effort to turn one of this country's most important debates about policy and law into a campaign to impugn lawyers. It is a sorry, and losing, approach.

To the extent that Rivkin and Casey's latest writings amount to an attempt to intimidate lawyers who seek to challenge unlawful administration policies in court, after all, the reaction to the Stimson remarks should have made clear that Americans are having none of it. After Stimson's tactics were rebuked by everyone from the American Bar Association to the American Conservative Union to former Bush administration Solicitor General Ted Olson, the Pentagon disowned the remarks, Stimson lost his job, and countless commentators have celebrated the white shoe law firms representing Guantanamo detainees pro bono for their courage.

Neither will it help to try painting lawyers who take on such cases with the amusingly anachronistic labels "leftist" and "radical," as Rivkin and Casey did. Among the most powerful voices against the government positions in many of these cases have been retired uniformed military leaders, who have filed briefs challenging the indefinite detention of the Guantanamo prisoners, the procedural failings of military commissions, and the lack of command responsibility borne by former Defense Secretary Donald Rumsfeld for the torture conducted on his watch. I suspect these men and women would be surprised to learn that they have been waging asymmetric warfare against the country they served. In any case, detainees have also been represented by the most established of blue blood law firms. Calling such an assemblage "leftist" just doesn't wash.

Indeed, the authors themselves seem confused about the nature and specifics of the "lawfare" threat. The definition they proffer describes the lawfare tool as an instrument of international law, but the cases they find most "pernicious" -- actions against Rumsfeld seeking some kind of remedy for victims of torture -- involve claims brought under U.S. constitutional law in U.S. courts against U.S. officials. And while Rivkin and Casey are able lawyers, even they would surely be hard-pressed to make a convincing case for the notion implicit in their argument: that what holds the greatest potential to "undermine public support for the war effort" is not, say, disastrous mismanagement or the shame of Abu Ghraib, but rather legal briefs concerning the scope of the writ of habeas corpus.

In the end, far more troubling than the authors' vision of "lawfare" is their vision of victory in the "war on terror" -- evidently a place where American war may be waged free from the constraints of all law. But for those who continue to believe that ours is a government of limited powers, and that the "law of war" is more than an expression, the fact that America's courts remain at least partially open to claims of government error is one of the surest signs out there that the war is not yet lost.

Deborah Pearlstein is an Associate Research Scholar at the Woodrow Wilson School of Public and International Affairs at Princeton University. She is of counsel in the case of Ali v. Rumsfeld, a lawsuit brought in U.S. federal court on behalf of Iraqi and Afghan nationals who were tortured in U.S. custody.

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