I have already reported how “lawfare,” which was defined by Air Force Deputy Judge Advocate General Maj. Gen. Charles Dunlap following 9/11, is becoming the new hot button for defenders of Washington’s and Tel Aviv’s foreign policies. Using the law itself to subvert existing constitutional arrangements and, ironically, to undermine legal restraints has been around for quite a while, having been developed by Nazi jurist Carl Schmitt in the 1930s. In its contemporary American version, lawfare initially was used by progressives to threaten unindicted war criminals and to take the offensive against egregious violations of civil rights, such as at Guantanamo Bay prison. But it has now been adopted by governments and government-supported entities to tie up opponents using lawsuits and other forms of litigation.
Lawfare is bloodless warfare. When it is used by a government or an officially sponsored group, it has two aspects. First, it can be used to expand government prerogatives, making what was illegal legal and indemnifying those government employees who have broken the law. Second, it can serve as a tool to punish those who oppose government policies. Making the illegal legal is what John Yoo and Jay Bybee did in the George W. Bush White House when they issued legal judgments supporting torture. It is also what the Barack Obama administration has been doing in obtaining legal advice in expanding the FBI use of national security letters and in saying that the war against Libya is constitutional. The Obama administration has also protected government employees through granting de facto immunity to torturers by refusing to allow the Justice Department to prosecute them. It has used lawfare extensively to defend itself against criticism and whistle-blowers by citing the state-secrets privilege to stop legal challenges, making government employees essentially free from any accountability.
The Israeli government and its American supporters have caught on to the potential of the legal weapon and are increasingly using lawsuits to tie up and punish opponents and critics. The New York State Supreme Court recently ruled that a lawsuit filed by a group of 84 Israelis against the Bank of China can proceed in U.S. courts even though none of the plaintiffs are U.S. citizens and the alleged crime took place outside the United States. The plaintiffs, who claim to be victims of terrorist bombings and rocket attacks carried out by Islamic Jihad and Hamas in 2006 and 2007, are asserting that the Bank of China enabled the attacks by providing wire-transfer services to both groups. The plaintiffs’ lawyer argued successfully that anyone can sue in American courts against any organization that the State Department has labeled as “terrorist.”
The law was also exploited in an attempt to stop June’s Gaza flotilla. A lawsuit filed in federal court in New York City claimed that the sponsoring organization, the Free Gaza Movement, was raising money and preparing ships to be used in “hostilities” against American “ally” Israel. This would be a violation of the U.S. Neutrality Act. The suit was initiated immediately after Secretary of State Hillary Clinton and the State Department made clear that they were considering even harsher measures, such as charging flotilla participants with “material support of terrorism” under the PATRIOT Act.
The New York lawsuit was filed by a U.S. citizen with the assistance of the Shurat HaDin, or the Israel Law Center, which was established as a nongovernmental organization (NGO) to use the law against groups that are perceived as being hostile to Israel. It is headed by Nitsana Darshan-Leitner and her husband, Avi, who have described their organization as a means of “fighting back,” which is particularly appropriate for Israel because, they say, “the Jews invented law.”
The organization works closely with the Israeli government even though it describes itself as an NGO. It received marching orders to stop the Gaza flotilla at all costs, as well as an offer of full support, directly from Prime Minister Benjamin Netanyahu. With Netanyahu’s backing, the group asked United States Attorney General Eric Holder to take steps to stop the American participants. The group also approached Gov. Rick Perry of Texas, who obligingly wrote a letter to Holder suggesting that the flotilla passengers might be prosecuted as Neutrality Act violators and terrorism supporters. Dershan-Leitner explains the passion behind Perry’s support: “I once spoke at a mission that Perry took part in, in Israel. And he approached me and said ‘I love what you do. It’s amazing what you do. If you ever need help combating Israel’s enemies, I’m here to assist.’”
Shurat HaDin harasses targeted groups with litigation so that they become ineffective or, even better, bankrupted by legal costs. Shurat HaDin was also behind the filing of a lawsuit in Greece claiming, incorrectly, that the flotilla ships were engaged in hostilities and also that they had not complied with Greek safety regulations. The suits in New York and Athens were palpably of doubtful validity, but once the legal process started grinding, all that was needed was a friendly judge in either location to jeopardize the sailing. The Greek government, needing a friendly White House to avoid economic default, was happy to oblige. Responding to the Shurat HaDin lawsuit, the Greek minister of civil protection declared that Gaza was an “illegal” destination port for ships departing Greece. He then ordered a meticulous inspection of the vessels in the flotilla, grounding six or seven over contrived safety issues.
Shurat HaDin’s website claims that it is “fighting for the rights of hundreds of terrorist victims.” In its relentless assault on the Gaza flotilla, it also went after private companies that would provide goods and services to the vessels involved. Intimidation was the name of the game. It boasted, “We are continuing our legal battle against the Islamic terrorists and extremist NGOs organizing the naval flotilla to the Hamas-controlled Gaza Strip. Last week we targeted the international insurance companies … [and] today … Shurat HaDin sent warning letters to the UK- and U.S.-based global satellite company INMARSAT, stating that it may be liable for massive damages and criminal prosecution if it provides communication services to ships used by suspected terror organizations in the Gaza flotilla planned for late June.”
Israel’s lawfare center has now expanded its activities by initiating legal action against its own citizens and foreigners connected to any and all flotillas. In 2010, Shurat HaDin petitioned the courts to hold indefinitely all detainees captured during that year’s tragic flotilla, which was intercepted by Israeli commandos, who killed nine Turks on the grounds that they were terrorist supporters. The courts rejected the demand, so Shurat Ha Din tried again. This year, on June 29, it supported the filing in Israeli courts of a “private criminal prosecution” against 13 named passengers who sailed on the flotilla of 2010. The suit contends that the 13 supported terrorist activity by being part of the flotilla.
Curiously, the suit was filed not by Shurat HaDin but by two individuals who claim to be reserve soldiers and who contend that they and their colleagues would be placed at risk by flotillas and might be subject to unprovoked attack while going about their military duties. The intention is clearly to create a legal precedent that any and all flotillas and similar humanitarian efforts should be regarded as support of terrorism, which would permit the Israeli government to bring terrorism charges against all the individuals involved. It would also permit friendly governments like the United States to follow up with their own prosecutions.
To their credit, the Israeli courts appear to be disinclined to proceed with a criminal case against the 13, none of whom is currently in Israel, and there are certain anomalies in the presentation. The alleged terrorist entity that is being supported and is the target of the petition is clearly Hamas, but the group is never named. Also, the two plaintiffs, Lior Tsuker of Kibutz Alon and Or Yirmihau Lipman of Tel Aviv, cannot be positively identified by independent investigators. According to court documents, the two plaintiffs claim that they are acting on behalf of the active-duty soldiers who were involved in stopping the flotilla who cannot be named because doing so would invite retaliation in the form of their identities appearing on lists of war criminals maintained in various jurisdictions in Western Europe, an indication that lawfare can sometimes work in two directions.
Amid all the sound and fury, it is important to recall that none of the vessels involved in the 2010 flotilla incident ever reached either Israeli or Gazan territory. They were intercepted in international waters. At that point, the passengers and crews had done absolutely nothing, illegal or otherwise. When the boats were hauled into the port of Ashdod, no weapons were found on any vessel.
Defining the flotilla’s organizers as terrorism supporters is a cheap trick, but if it passes muster in Israel, all it takes is an American judge or prosecutor to buy into the argument and bring about an indictment of any American citizen who tries to break Israel’s Gaza blockade. Eric Holder would hardly object, and it is not unimaginable that the Justice Department would make criticism of Israel de facto and de jure a crime in the United States. Could the accused be convicted in an American court “of terrorism support” given that they had done nothing illegal, particularly in light of their First Amendment rights? Maybe not, but stranger things have happened in the past 10 years. Since lawfare as practiced by Shurat HaDin is little more than an instrument to intimidate and threaten, dragging flotilla participants into court and forcing them to pay for lawyers will be seen as a victory. More disturbing than the actions of obvious Israeli partisans like Nitsana Darshan-Leitner is the willingness of the Obama administration to go along with the charade and the enthusiasm of Republican governor and presidential wannabe Rick Perry to join in. When the U.S. criminal justice system falls in line and plays the Israeli game, we will all be in trouble.