Terrorizing Through Lawfare

by , May 24, 2012

On May 15, a Washington, D.C., court awarded $332 million in damages to an American family whose 16-year-old son was killed in a 2006 suicide bombing in Israel. The court determined that Syria was guilty and would have to pay the judgment because it supported the Palestinian group Islamic Jihad, which actually carried out the attack. The judgment against Damascus is perhaps no coincidence as Syria is currently on everyone’s enemy list, but the principle involved, that supporters of militant groups can be held legally responsible for the consequences of that support, is referred to as “lawfare.” The preeminent promoter of the use of lawfare is the Israeli group Shurat HaDin, which on its website describes how its various courtroom victories have made it the “bane of anti-Israel groups throughout the world.”

Shurat HaDin was in the forefront of opposition to the Gaza aid flotilla of 2011. It successfully pressured the Greek government to physically stop the boats from sailing and international insurers to deny coverage to the vessels involved. It sent warning letters to the U.K.- and U.S.-based global satellite company INMARSAT stating that it might be liable for massive damages and criminal prosecution if it provided communication services. The legal warning asserted that under U.S. law, INMARSAT and its officers would “be open to charges of aiding and abetting terrorism if it provides satellite services to the Gaza-bound ships.” It should be noted that the ships were completely and scrupulously legal, were breaking no laws, and were carrying humanitarian supplies that had been inspected. All passengers and crews had signed pledges of nonviolence.

Recently, Shurat HaDin has been threatening to use litigation on American university campuses. Its website explains that “the Law Center, through its American office, has begun to monitor the rampant anti-Semitism and anti-Zionism in colleges and universities. It has informed the presidents of academic institutions that their schools could face civil and criminal liability for tolerating ‘an environment of intimidation and hostility’ that fails to protect Jewish and Israeli students against anti-Semitic harassment.”

Shurat HaDin, though an Israeli nongovernmental organization, is particularly active in the United States, exploiting the fact that American courts have proven willing to hear lawsuits directed against any terrorist group anywhere in the world even if no U.S. citizens are involved based on the principle that terrorism is an international crime. Existing terrorism legislation in the U.S. making it illegal to provide “material support” to any group designated as terrorist is itself lawfare, using deliberately vague language to justify nearly anything if a terrorist group is in any way involved or can plausibly be implicated. The law itself provides an elastic framework for litigation. Shurat HaDin’s intention is to silence any and all criticism of Israel, and, to do so, it works assiduously to connect governments and organizations to proscribed terrorist entities so they can be sued for damages. The intention is to use the legal weapon to tie up opponents. Many of the Shurat HaDin charges have proven to be frivolous, but those who are sued have to waste time and resources defending themselves, which is precisely what is intended.

For example, in January 2012, Shurat HaDin warned the landlord of the Palestine Liberation Organization in Washington and the Verizon telephone company that providing premises and services to the PLO was illegal and could lead to criminal prosecution. More recently, in April, Shurat HaDin advised the Israeli government that the so-called flytilla activists who intended to “fly-in” to Israel for a nonviolent protest should be arrested and prosecuted “to deter participants … from taking part in future ‘flytillas.’” This is precisely what the Israeli government subsequently did.

The lawfare concept was promoted by Air Force Deputy Judge Advocate General Maj. Gen. Charles Dunlap following 9/11, even though the tactic of using law itself to circumvent restraints imposed by a constitutional government has been around for quite a while, having been developed by Nazi jurist Carl Schmitt in the 1930s. In its American version, lawfare was initially framed around taking the offensive against the largely progressive groups that were impeding executive prerogatives by arguing for due process for Guantanamo detainees and seeking to use existing international law to target senior government officials including Donald Rumsfeld and Ariel Sharon, who were widely regarded as war criminals.

The hypocrisy in suing Syria as “a state sponsor of terrorism” while actual sponsors of terrorist acts such as Israel and the United States are apparently immune from punishment through judicial process is striking. It all pretty much depends on who is calling whom a terrorist. It should be accepted that the Department of State’s annual Country Reports on Terrorism are essentially political documents, indicting countries and groups that the United States is seeking to demonize for one reason or another and excluding friends and allies who engage in the same or similar behavior. But once you are on the list, you are legally a terrorist, at least as far as the American judiciary is concerned.

Did Syria sponsor or carry out a terrorist act inside Israel in 2006? There is no evidence of that. Syria’s crime, according to the 2010 edition [.pdf] of the State Department report, is as follows: “The external leadership of Hamas, the Palestine Islamic Jihad, the Popular Front for the Liberation of Palestine, and the Popular Front for the Liberation of Palestine General Command, among others, were based in Damascus…. President Bashar al-Assad continued to express public support for Palestinian terrorist groups as elements of the resistance against Israel.”

So Assad allows various Palestinian resistance groups to have offices in Damascus and supports their cause. There is no suggestion that he is arming them or directing their attacks inside Israel. Syria is not unique by that yardstick, and many other Arab states that are American allies would endorse such activity. Compare that level of engagement with Israel’s assassination of Iranian scientists or its recruitment of Jundallah or Kurdish terrorists to carry out attacks inside Iran. These are actual terrorist attacks that kill people, but Israel is not on Washington’s state sponsors list.

One wonders what would happen if the family of a slain Iranian scientist were to sue the Israeli government for multi-million-dollar damages in a New York City or Washington, D.C., federal court. The scrambling by the Justice Department to avoid any involvement in such an action and make it go away would be quite entertaining to watch, and one can be sure that the case would be expeditiously dismissed by the presiding judge as “frivolous” or “without merit.” That’s referred to as “equal justice under law,” American-style. Or perhaps President Barack Obama would invoke the “state-secrets privilege” as he has done so often in the past to stop the process, conceding that anything involving Israel’s crimes is pretty much off limits, just like the torture, secret prisons, and illegal eavesdropping carried out by Washington.

Read more by Philip Giraldi