Beating Swords into Law Books: A Review of “Lawfare”

Orde Kittrie’s Lawfare is a primer on how nations and non-state actors can supplement their hard power by using the court system to achieve their strategic objectives.

Lawfare is a term coined in 2001 by Maj. Gen. Charles Dunlap, then a colonel in the Air Force Judge Advocate General’s Corps, as a strategy of “using – or misusing – law as a substitute for traditional military means to achieve an operational objective.” Kittrie, a professor of law at Arizona State University and a senior fellow at the Foundation for Defense of Democracies, expounds on this definition by laying out the conceptual framework of lawfare, then examines numerous case studies of governments and organizations that deployed this tool to achieve their objectives. As Kittrie points out, China has adopted “legal warfare” as a “major component of its strategic doctrine,” and much of the Israeli-Palestinian conflict is now being conducted through lawfare. Despite its growing use in the international arena, the United States has not adopted a systematic approach to employing lawfare to achieve its strategic aims.

One of the book’s first case studies revolves around the case of David Boim, a 17-year-old American citizen who was shot dead in 1996 by two Hamas terrorists in the West Bank. While the U.S. government was reluctant to pursue the operatives, and refused to prosecute them even after one of the killers confessed to the crime before a U.S. State Department observer, two lawyers — Nathan Lewin and his daughter, Alyza — were instead able to use civil litigation to shut down the Holy Land Foundation, a Texas-based charity that served as a major fundraiser for Hamas.

The next section of the book describes how the sanctions regime against Iran was built. Although last year’s nuclear deal with Iran has dismantled much of the sanctions regime, the Obama administration credits this financial lawfare with getting Tehran to negotiate limits on its nuclear program. Even now, Iran’s continued defiance of international law is prompting members of Congress to look into imposing non-nuclear sanctions on the Islamic Republic.

But lawfare isn’t only waged by the good guys. The Chinese government has developed an advanced capacity to wage lawfare.

Four of the chapters in the book document how the Palestinian Authority, Hamas, and sympathetic NGOs wage lawfare against Israel and how Israel defends itself.  Kittrie notes that the threat of the PA waging lawfare against Israel is so acute that two years ago, “Israel decided to trade the release of dozens of Palestinian prisoners who had murdered Israelis in exchange for a nine-month respite from PA lawfare.”

One case mentioned in the book that has relevance to recent news events was Flatow vs. the Islamic Republic of Iran, in which a New Jersey title attorney, Stephen Flatow, teamed with litigator Steve Perles to sue Iran for the death of Flatow’s daughter Alisa. Alisa Flatow was killed in a 1995 suicide bombing carried out by Palestinian Islamic Jihad, a terror group funded by Iran. Flatow ultimately accepted a settlement based on seized Iranian assets, but only after he “received a personal commitment from Jack Lew that the funds he was being paid were being paid from the Iranian blocked assets and that no taxpayer funds were implicated.” Lew, now Treasury Secretary, was President Bill Clinton’s director of the Office of Management and Budget at the time.

But in January, apparently to get five American hostages freed from Iran, the Obama administration (for which Lew works) agreed to release $1.7 billion in Iranian funds, meaning that the 2000 settlement with Flatow and others who won judgments against Iran ended up coming out of taxpayer money. “We all believed that Iran would pay our damages, not U.S. taxpayers,” Flatow told Newsweek in January. “And now, 15 years later, we find out that they never deducted the money from the account. It makes me nauseous. The Iranians aren’t paying a cent.”

At the end of his book, Kittrie issues a call to arms, or at least to litigation, that the United States should undertake an effort to use lawfare to achieve its strategic objectives by leveraging its advanced legal system:

The United States leads the world in the quality of its attorneys, many of whom are already experienced in aggressively leveraging its domestic legal system. All the United States government has to do is develop and implement a strategy for waging and defending against lawfare in a more sophisticated, systematic, and coordinated manner.

With its clear explanations, broad scope, and comprehensive documentation, Lawfare should be influencing the way the U.S. government uses this tool for years to come.

The Foundation for Defense of Democracies presented a discussion of Lawfare with Kittrie and a number of the lawyers, including the Lewins, Steve Perles, and Juan Zarate, whose efforts in developing elements of lawfare in the U.S. were featured in the book. A video of the March 14 event is embedded below.

David Gerstman is Associate Editor of The Tower. Follow him on Twitter @soccerdhg

[Photo: Foundation for Defense of Democracies / YouTube ]