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Reflections on “Lawfare” and Related Terms

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Wednesday, November 24, 2010 at 12:01 AM

Khost, Thursday, November 18, 2010 — Having outlined, in theory as well as in practice, the military’s and ROLFF’s proper counterinsurgency (COIN) role in Afghanistan, it is time to blog more pointedly—to “drill down,” as the great 101st Airborne Division Rakkasan soldiers I am with today in Khost might say—on the term “lawfare.” Inaugurating this website in September, Ben Wittes defined lawfare initially as “the use of law as a weapon of conflict.” Jack pointed out later out that Major General Charles Dunlap popularized this definition in an influential article nine years ago.

It is important to identify three distinct but overlapping meanings within the “law as a weapon of conflict” definition of the term. Each of these has been identified in the exchanges posted to date, but I will take this opportunity to contribute my own observations.

Meaning A:  Lawfare as Unfair

This is the original and derogatory meaning that Jack noted in his 8 September post before pivoting and suggesting, against something of a headwind in certain circles, that the term need not always be derogatory. According to this original meaning, lawfare is a modern form of perfidy, the sneaky and dishonest yet methodical reliance upon an adversary’s compliance with law to injure him. Every manner of description connoting unfairness in fighting has been employed to elaborate on this meaning, including “handcuffing,” “exploiting our values,” “hijacking the rules,” “misusing the law,” “abusing judicial systems,” “engaging in treachery,” “manipulating human rights,” “creating deadly tentativeness,” “perversely incentivizing,” “cheating,” and—most prominently because the reference appeared in the 2005 National Defense Strategy (NDS) of the United States—“employ[ing] a strategy of the weak.” Popular examples cited as methods of “Lawfare as Unfair,” meanwhile, include the resort to “international fora, judicial processes, and terrorism” (again the 2005 NDS) as well as to false allegations of torture and civilian casualties.

Meaning B:  Lawfare as “War”-fare

This is the meaning that appears to have served as part inspiration for the “Lawfare” website.  Attaching the “-fare” suffix to “law” serves neatly to invoke the metaphor of fighting to refer to legal argumentation. Ben invokes this sense of the word explicitly in his initial post. I call this meaning “Lawfare as ‘War’-fare,” with “war” in quotation marks, because people self-described as waging lawfare in this sense are invoking the metaphor of fighting but are not actually physically fighting. Proponents of this meaning usually at some point qualify their use of martial language by employing quotes of their own around “war” or by referring, for instance, to a war “of sorts” (Jack) or to participation in mere “skirmishes” (Ben). Properly understood, those waging lawfare within this meaning of the term are engaged in sometimes heated discourse over contentious national security issues involving law (Ben: “America is at war with itself over the law governing warfare with others.”). A website by this name is a battlefield, and a strategically crucial one, but one of ideas and commentary rather than soldiers and missiles.

Meaning C:  Lawfare as COIN

This is the meaning that draws upon the body of theory outlined in my post from Tuesday from Kandahar. It denotes one of the key overarching instruments in a comprehensive campaign to defeat an insurgency. By building legal institutions that have credibility and authority, wielders of COIN lawfare serve the ends at once of helping protect the population and of holding all of the other COIN instruments—conventional warfare, counterterror operations, security force capacity building, intelligence collection, physical security measures, public information, cyber security and warfare, economic development, electoral and other initiatives to connect government to the people—to purposes and methods that comply with law and advance the project of unhinging the enemy on a political level. That is, of course, the level where an insurgency must always ultimately be defeated. And Lawfare in this sense is a preferred strategy of the strong, and is in many respects the opposite of the manipulative original connotation of the term. Associated terms include “rule of law,” “transparency,” “anti-corruption,” “legitimacy,” and “governance.”

I want to make several points about these different meanings. First, each contains within it a significant tension, and when stretched to one side or the other, the meanings all overlap with one another. Meaning A struggles a bit with identifying clearly what is “fair” in the hell that is war, pressing heavily on the distinction between perfidy and treachery on the one hand and legitimate ruses and fighting methods on the other. Meaning B aspires to advance clear thinking and sound national security policy through reasoned debate, a worthy end in itself. But a war of only words is vulnerable both to excessive detachment and to propaganda. Meaning C has the tension I foreshadowed in my post on Tuesday; by placing the law in service as a “tool” of war, it risks undermining the authority of law itself.

Second, the “asymmetry” often noted in articles about Lawfare-as-Unfair in reference to terrorists’ desire to sidestep conventional military power is not exclusively a characteristic of Meaning A. All successful offensive combat activity is asymmetrical in the sense that it produces effects or inflicts injury that an adversary cannot immediately match. It is certainly true that manufactured claims by the Haqqani Network of civilian casualties during operations here in Khost meet this standard of asymmetry and can result in a real advantage in military terms for the Haqqani Network. But Meaning B includes a notion of asymmetry as well, one perhaps first identified by Thucydides in Pericles’ funeral oration during the Peloponnesian War; Pericles refers to Athens’ superiority over Sparta in the free exchange of ideas and commerce, which Athens was able to translate into unmatched power, wealth, and eventually military advantage. And Meaning C encompasses the notion of asymmetry in the sense that successful COIN operations overmatch an insurgent with an “anaconda” effect produced by opposing him on too many fronts for him to handle at once. As I’ll discuss in my concluding post tomorrow, they also outflank him—flanking being the fundamental asymmetry in maneuver warfare, and there is an analogue in COIN—by wielding a legitimacy and authority an insurgent force cannot match.

Third, each of the meanings of lawfare emphasizes its newness and rapid development. According to Brooke Goldstein, one adherent of Meaning A, lawfare is “the newest, most visible, and increasingly emergent form of asymmetric warfare.” In describing Meaning B, Ben refers to “a zone in which actions taken to protect the nation interact with the nation’s laws and legal institutions,” a zone so active in the modern era that it merits a dedicated electronic news and commentary outlet that is more responsive to events than traditional legal periodicals. While protecting the population and winning hearts and minds have long been staples of COIN, Meaning C reflects a consciousness of the importance of rule of law in COIN that is new and still rapidly maturing. Reasons for the common emphasis upon these characteristics include the explosive growth of digital and information technology and the emerging importance, for better or worse, of law and lawyers to national security.

Fourth, each of the meanings lays some claim to the political high ground of democracy. Meaning A is so disturbing—and the form of lawfare it describes so important to oppose both tactically and strategically—partly because, in the view of one commentator, “it frustrate[s] and hinder[s] the ability of democracies to fight against and defeat terrorism.” Meaning B, again echoing Pericles, reminds all who subscribe to it that greater collective security is possible when key issues are debated and when policies are adopted with broad public understanding and acceptance, however hard that is to achieve in complicated national security matters. Meaning C links COIN closely to what is attractive across a population for which both government and insurgents compete for political support.

Fifth, the internal definitional tensions and the reliance of its meaning upon disputed notions of asymmetry, modern warfare, and even democracy suggests that “lawfare” is destined to earn W.B. Gallie’s label as an “essentially contested concept.” Like “democracy,” “freedom,” and “equality,” “lawfare” denotes something conceded by all to be critically important, but endless disputes are bound to erupt over its use because of differences in the normative and other basic assumptions made by those using it.

In my final post tomorrow, I will try to synthesize these various observations and address the question of whether our operations in Afghanistan do or do not constitute lawfare.

Brigadier General Martins can be reached at [email protected]

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