Foreign Policy Blogs

Lawfare On Trial (Part II)

This is Part II of a two-part post on lawfare.  Click here for Part I, in which I critiqued the way in which Brooke Goldstein, director of the non-profit, The Lawfare Project, envisages lawfare.  In this post, I examine the solutions she proposes.
One of Goldstein’s primary concerns is the many lawsuits against people speaking out against Islam.  These include cases against Canadian writer, Mark Steyn; former NYPD counterterrorism official,  Bruce Tefft; and U.S. congressman, Cass Bellinger.  None of these cases have been successful, but, since the lawsuits are expensive, Goldstein wants to ensure that the defendants have access to pro-bono or reduced fee legal services or access to funds.  She also wants to encourage states to pass anti-SLAPP (strategic lawsuit against public participation) legislation.  These are entirely sensible proposals.  (She also asserts that we must enact a version of the New York Libel Terrorism Protection Act on the federal level.  I disagree with this only because it was already done several months ago.  In August 2010, Obama signed the SPEECH Act, which protects American writers from foreign libel lawsuits.)
However, I don’t think her solutions address our greatest threat.  As I wrote in Part I, to me, the biggest domestic legal concern regarding terrorism is one she overlooks, the Holder v. Humanitarian Law Project decision, in which the Supreme Court ruled that it is illegal to try to help terrorist groups develop non-violent methods for achieving their objectives.  If we’re concerned about domestic law hampering anti-terrorism efforts, 18 U.S.C. 2339B, the relevant statue of the case, would be a good one to examine.
When it comes to international legal and institutional reform, I diverge even further from Goldstein.  One of her concerns is the lack of an internationally accepted definition of terrorism.  This has resulted from the international community’s failure to agree on language for the Comprehensive Convention on International Terrorism, and specifically, because the Organization of the Islamic Conference (OIC) wants an exception for acts of national liberation.  Here’s Goldstein’s solution:
It is important to organize an alliance of democratic states to prevent the U.N. from adopting the OIC’s proposal to exclude the murder of civilians of an ‘occupying’ state from any international definition of terrorism.
But there’s no real danger (at least as far as I know) of the OIC succeeding.  The problem is that the convention will remain deadlocked.  The solution, then, would be to develop ways to encourage OIC flexibility.  Forming an alliance of democratic states is unlikely to help accomplish this goal.
Goldstein also wants to change the way that human rights law is made and enforced:
Why should a U.N. human rights council comprised largely of non-democratic member states and controlled by a bloc of Islamic and African states, backed by China, Cuba and Russia, dictate international human rights norms?  We need to reexamine of the process by which human rights are enforced, the bodies by which they are defined and the procedures that dictate the member of those bodies, and drop the absurdity that all members of the international community are equal when it comes to enforcing and defining what is human rights law, especially when that country itself is in flagrant violation of customary human rights norms as defined by free societies.
She seems to be under the mistaken impression that the UN Human Rights Council (UNHRC) is responsible for defining and enforcing human rights.  The UNHRC has no such power.  As the UN General Assembly resolution that created the UNHRC indicates, the primary responsibilities of the UNHRC are to promote human rights and make recommendations.  But Goldstein calls for major international institutional reform:

Perhaps there should be a separate, new organization made up of only liberal democratic states which has the authority to make and interpret international human rights law and whose rulings are binding over and above the United Nations.

She doesn’t address why the rest of the international community would accept the rulings of such a body as binding, nor does she address the ways in which this body would complicate relationships with the U.S.’s human rights-violating allies, such as Saudi Arabia and Egypt.  This idea, while it may sound appealing, is not likely to be effective.

Readers should peruse the work of Charles Dunlap, who shares some of Goldstein’s concerns but approaches the subject with a more even hand.  See his essay on lawfare from 2001 and a speech he gave in 2005.  One of his main prescriptions is that we ensure that the U.S. adheres to the law.  He wrote in 2001:

We also must have a better linkage between those knowledgeable of military affairs and those civilian specialists expert in LOAC.  Only productive cooperation can achieve the critical mass necessary to sustain international law as a guiding element in military interventions.  We should encourage other nations to develop a robust cadre of uniformed lawyers ready to provide insightful advice to commanders in the field.

The stakes are high, as he noted in 2005:

The reality is that illegalities do create operational effects which are literally indistinguishable from conventional military defeats. Lieutenant General Ricardo Sanchez I think captured it perfectly when he said the events at Abu Ghraib had the same effect as a traditional defeat. The reality is Americans have died and will continue to die as an indirect result of this. It energized the enemy, it eroded the Coalition, it achieved all those kinds of things that you would want if you were going to impose it through a battlefield defeat.

This important prescription – ensuring that the U.S. adheres to the law – is something that, if Goldstein truly desires to combat lawfare, she should consider advocating.