‘The use of the law as a weapon of war’

Next month, an organisation called The Lawfare Project (TLP) is putting on a conference about lawfare, which it defines as: the abuse of the law and legal systems for strategic ends.

The role of the organisation is set out on their website.

The scope of the Lawfare Project’s focus is limited to lawfare as it is used to:
(1) Frustrate the West’s ability to fight terrorism,
(2) De-legitimize the sovereignty of democratic states such as the U.S. and Israel, and
(3) Silence free speech about issues of national security and public concern.

Interestingly, David Schizer, Dean of Columbia Law School, is chairing the conference. The Dean is responsible for awarding the prestigious Medal of Excellence to a notable alumnus, which this year went to Obama’s Attorney General, Eric Holder.

In 2005, the award went to Michael Ratner, a well-known human rights attorney and President of the Centre for Constitutional Rights for, among other things, his work on behalf of Guantanamo detainees. Presumably this work is precisely the type of lawfare TLF was once concerned about.

International law has always been an unwieldy instrument basing its legitimacy on a combination of treaties and non-binding instruments – such as the Convention on the Law of the Sea – and practical application of principles in international settings – such as the creation of international organisations that set food, health and environmental standards.

Within this somewhat shifting framework of international law, human rights law as a subcategory rests on some clearly identifiable principles. At a foundational level, this stems from the liberal concept, stated in the preamble to the Universal Declaration of Human Rights, that the:

recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world.

In other words, humans are subjects of ‘states’, defined in contrast to them, not subject to their political whims or discriminatory fancies. Organisations like TLF fly in the face of these traditionally accepted principles.

One of TLF’s stated aims is to facilitate a response to the perversion and misapplication of human rights law. In light of the organisations stated objectives, this immediately sounds warning bells. Isn’t arguing that human rights must be calibrated to the objectives of the state – in fighting terrorism or supporting the US and Israel – an example of a perversion of human rights law?

The whole logic of TLF is counterintuitive, and that is what makes it so dangerous. They argue that terrorists and their sympathisers understand where they can’t win with brute force so they undermine our willingness and ability to fight them using legal grounds. This suggests that the concept of terrorism is no longer defined by the use of violence for political ends.

TLP uses terrorism as a label for national and transnational organisations that are politically, morally and legally delegitimising the ‘war on terror’. So anyone who relies on political, moral or legal grounds to make an argument about foreign policy is now potentially a terrorist. Everyone from church groups to Amnesty International to the Greens would seem to fall into this category.

This thinking is not just an American phenomenon. It is precisely the argument that MI5 used to justify its behaviour in the recent case concerning Binyam Mohamed, a former Guantanamo detainee from Britain. Lawyers for the international media (including Associated Press, the Guardian and the New York Times) had been seeking access to documents pertaining to Mohamed’s treatment while in Guantanamo on the grounds of pressing public interest.

Last month, the Government’s barrister, Jonathan Sumption QC, requested that paragraphs highly critical of MI5 behaviour be removed from the draft appeal court judgement. This was done without informing lawyers for the media, or Mohamed. When the court learned of this and promptly published the crucial paragraphs, MI5 claimed that this was an example of a propaganda victory for terrorists. ‘For their part, our enemies will also seek to use all tools at their disposal to attack us’, wrote Jonathan Evans, head of MI5. ‘That means not just bombs, bullets and aircraft but also propaganda and campaigns to undermine our will and ability to confront them.’

The release of the Counter-Terrorism White Paper last week, signals that Australia may be heading in the same direction. Australians are not numb to the threat of terrorism as Kevin Rudd claims; but, we are also plagued by ennui about the growing threats to civil liberties. In September last year, the Federal Court of Australia denied an application by peace activist Scott Parkin to access the adverse security assessment made by ASIO that resulted in his deportation from Australia. This process has taken nearly five years at great expense to both Parkin and the taxpayer.

Unlike Britain, the Australian judiciary seems less inclined to stand up to our intelligence organisations in the name of the public interest. As such, it might not be long before we see a legal, political and social campaign against lawfare in Australia.

Lizzie O'Shea

Lizzie O’Shea is a lawyer. Her book Future Histories (Verso 2019) is about the politics and history of technology.

Overland is a not-for-profit magazine with a proud history of supporting writers, and publishing ideas and voices often excluded from other places.

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  1. And here’s another straw in the wind, from Spencer Ackerman in the Washington Independent.

    In the latest bit of brazen slander from the right, Republican Senators are trying to invent a scandal about Justice Department lawyers who — horror — represented Guantanamo detainees. You know, provided the representation that the Rehnquist and Roberts Supreme Court has repeatedly ruled those detainees are entitled? And which even the military commissions provide for? Instead, there’s this McCarthyite tactic of calling Justice Department lawyers the “Gitmo Nine,” a name that oh-so-cleverly suggests that those lawyers were themselves detained at Guantanamo. From the Washington Times:

    Sen. Chuck Grassley of Iowa is rightly unhappy that the Justice Department won’t divulge the names of the nine Justice Department lawyers who directly represented suspected-terrorist detainees, or their cases. Grassley identified two himself, Neal Katyal (an aside: Katyal is a very impressive guy and very charming and level-headed) and Jennifer Daskal.

    There’s absolutely nothing “hidden” about this; it’s a pure smear job. Daskal, a former Human Rights Watch attorney, is so committed to hiding her representation of Guantanamo detainees that it’s on her Wikipedia page. And Katyal, the deputy solicitor general whom even this Washington Times bottom-feeder has to concede is a talented attorney, very publicly represented Salim Ahmed Hamdan and took his case to the Supreme Court, which promptly struck down the first phase of the military commissions. There is not a shred of a legitimate issue here, just pure innuendo.

    Grassley knows exactly what he’s doing. He’s taking one of the strengths of the American justice system — the fact that everyone is entitled to legal representation — and implying that it’s unseemly. It’s a testament to the weakness of his character that he will never forthrightly accuse these attorneys of what he’s implying — sympathy with accused terrorists — in a way that they could refute. What a pathetic excuse for a man. Those of us in the media have an obligation to call this smear campaign what it is.

  2. Bizarre. I’ve heard detailed interviews on the BBC over the past few years with a number of lawyers who work for Guantanamo detainees – I guess Grassley and the Washington Times don’t listen to the BBC. And CCR, the organisation Lizzie mentions early in her piece, represents both current and former detainees, which is stated on the front page of their website.

    They were involved in a case for the families of two detainees who died at Guanatanmo, likely as a result of torture. In mid-February, following a two-year military investigation, the court ruled it was suicide. They also found that:

    the deceased’s constitutional claims that it was a violation of due process and cruel treatment to detain them for four years without charge while subjecting them to inhumane and degrading conditions of confinement and violent acts of torture and abuse, could not be heard in federal court

    because they were ‘enemy combatants’.

    The article is on the CCR website.

  3. Perhaps it’s hoped that this ‘ultimate bureaucratisation of institutions’ colliding with the ‘delegitimisation of anything resembling a threat’ will render us inert.

  4. Does this mean that ‘Lawfare’ TLP have become a victim of its own hijacking or, perhaps, lost in the woods is a more apt metaphor, as they scramble for middle-ground? A dangerous place where ideals can become the first casualty.

    There was this from the links above in the Newspaper The Ottawa Citizen by David B Harris, a lawyer and director of the terrorism program INSIGNIS Strategic Research Inc.

    ‘In this atmosphere, “Hasan hazards” might be ignored by bureaucrats wanting to avoid specious — and career-damaging — complaints and lawsuits from hardline Islamic groups and “human-rights” racketeers. Thanks to the money, organizing and propaganda of North America’s division-sowing Wahabbist and Muslim Brotherhood front organizations — and righteously-naïve human rights industry — “lawfare” offensives are part of the landscape and play on westerners’ self-image as tolerant progressives.’

  5. And it gets even more terrifying with Mondoweisss’ reports on the conference – Inside the Lawfare Project: Netanyahu’s attack on human rights NGO’s comes to the US

    As Schizer was leaving, he was politely confronted by Columbia Law School Professor Katherine Franke, who heads the school’s Program in Gender and Sexuality Law.

    “Why didn’t you invite any speakers with an alternative perspective?” Franke asked Schizer.

    His reply was curt. “We invited one or two but they couldn’t make it,” Schizer claimed before hurrying away.

    Schizer was understandably nervous about his exposure. After all, he had just presided over a day-long conference during which Israeli human rights workers were labeled as traitors while Judge Richard Goldstone and human rights groups were compared to “anti-Semitic street gangs.” After several speakers had harshly condemned legal efforts against the construction of Israeli settlements in East Jerusalem and the West Bank, Schizer appeared beside them to lend his credibility to their views.

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