Small Wars Journal

'Lawfare' Could Become Trump Tool Against Adversaries

Tue, 01/24/2017 - 6:33pm

'Lawfare' Could Become Trump Tool Against Adversaries

Steve Herman, Voice of America

Use of the law as a weapon of war may find favor with the Trump administration, according to some scholars and attorneys.

The concept is popularly known as "lawfare," and is used to reach strategic objectives traditionally achieved by the use of lethal weapons.

One lawfare specialist predicts the new U.S. president will find the practice familiar, noting Donald Trump's use of law as a weapon in his business.

Trump "sued his business adversaries some 1,900 times in the past decades, which, according to the study, is far out of proportion from what similar businesses were doing," said Arizona State University law professor Orde Kittrie. "And if you look at quotes from Donald Trump, and you look at quotes from people associated with him, they see law as a weapon to be used to advance their business interests and crash their adversaries in business."

The Trump administration is still putting into place its top layers at various agencies, including the State Department.

"I don't know what plans the Trump administration may have to incorporate lawfare into its foreign policy strategy, but if we have an opportunity to use law instead of more traditional weapons to address foreign policy issues, I'm all for it," said professor Charles Dunlap, executive director of Duke University's Center on Law, Ethics and National Security.

Economic Sanctions

Economic sanctions often were used by the Obama administration. But some key Trump Cabinet members have questioned the effectiveness of sanctions, especially against countries such as North Korea.

"I consider economic sanctions as a form of lawfare because you are using a legal prohibition instead of force to coerce another nation," explained Dunlap, a retired U.S. Air Force major general who was a deputy judge advocate general.

Lawfare, he says, is "the strategy of using — or misusing — law as a substitute for traditional military means to achieve an operational objective."

Kittrie, author of the book Lawfare: Law as a Weapon of War, sees the concept as neutral "just like a rifle or a missile" that "can be used by the United States or by our enemies."

Some critics consider lawfare as only something negative.

"Lawfare is a tool that is used by the enemies of the West — very strategically to undermine our freedom," said human rights attorney Brooke Goldstein, who points to those affiliated with violent extremists whom she says are abusing the legal system and manipulating it as a means of asymmetrical warfare.

"I see it as the opposite of pursuit of justice," Golstein, founder of the Lawfare Project and author of Lawfare: The War Against Free Speech, told VOA, citing what she called malicious lawsuits filed against those accused of Islamaphobia.

‘Great Tool’

Kittrie, who as an attorney spent more than a decade at the State Department, acknowledges that lawfare is being used most aggressively by both the Israelis and Palestinians against each other, but he also points to China turning it into a weapon against the West.

"The Chinese are eating our lunch when it comes to lawfare because they're much more serious, they're much more systematic about it," he said.

"With regards to the South China Sea, the Chinese have this whole strategy of pushing the limits on the law of the sea, creating these islands, fortifying these islands, then claiming the area around them," Kittrie explained. "They're doing the same thing in the cyber arena, where the Chinese are making the argument for their own reasons, that the law of armed conflict doesn't apply to cyber conflict."

Both Trump and the presumptive secretary of state, Rex Tillerson, have been expressing skepticism that economic sanctions harm business interests.

Iran would be an obvious lawfare target for the new administration, with more than $53 billion in uncollected judgments in U.S. courts against the Islamic Republic, including $1 billion specifically against the country's supreme leader, Ayatollah Ali Khamenei.

"So, if you're going to squeeze Iran, this is a great tool," Kittrie told VOA. "You can use it to collect judgments, any Iranian assets coming through the U.S., and potentially Iranian assets going through Europe."

Kittrie sees it as ironic that American lawyers use the law very aggressively in domestic courtrooms, "but when it comes to the international arena, under the Obama administration, and even before that, we've been treating law with kid gloves. I'm not arguing that we should violate law, but when law cuts to our advantage, we should use it and we should approach it very systematically."