All’s ‘Fare’ in War

Even governments can learn from their mistakes. The United States went into Iraq and Afghanistan with Army and Marine divisions and the result has been disastrous, with hundreds of thousands dead and Washington on the verge of bankruptcy. Nor has the result been satisfactory, with Iraq firmly in the Iranian orbit and Afghanistan so corrupt and ungovernable that the daily newspapers are having trouble keeping up with the latest scandal.

The Israelis too had their moment of comeuppance when they decided to smash the first Gaza Flotilla a year ago, killing nine Turks, one of whom was also a US citizen, and worsening their already dismal public relations problem. It was hardly worth the effort to stop ship loads of building material and relief supplies and it demonstrated to one and all that the government of Prime Minister Benjamin Netanyahu was both ruthless and heedless of the consequences of its actions.

Using soldiers to remove regimes and commandos to stop civilian vessels ultimately looks bad and is bad. It is a use of what might be designated hard power that is all too convenient for heads of state of nations that for one reason or another consider themselves to be operating outside the rules that govern other states. Can one imagine the response if Russia had invaded Iraq and Iran had intercepted an Israeli merchant vessel and killed nine passengers? No, only America and Israel believe that they operate on another plane.

But even in Washington and Tel Aviv there is some sensitivity to world opinion. This will likely mean that in the next few years we will see a mixture of hard and soft power being used by the Obamas and Netanyahus to bring about satisfactory results without instantly resorting to maximum force.

The recent incident involving the second Gaza Flotilla demonstrates exactly how it works. The ships were completely and scrupulously legal, were carrying humanitarian supplies that had been inspected, and all passengers and crews had signed pledges of non-violence. At least one ship was sabotaged, but the others were willing and able to make the short trip down to the international waters off of Gaza. That is when the Greek government intervened, using armed commandos to intercept the American vessel. The captain was arrested and eight passengers protesting afterward in front of the American Embassy were also detained. As anticipated, the United States Embassy did nothing to assist the US citizens in distress.

The other vessels were refused permission to depart even though the boats were seaworthy and no one on board had committed any crime. There is no reason to doubt that the action was taken under pressure from Israel and the United States, which had together carefully orchestrated a response. And Athens proved to be a soft target. With Greece tottering on the brink of default, it was more than ever necessary to have the good graces of Washington to make sure that IMF loans arrive on time. Israel even thanked Greece for its favor in stopping the aid ships.

And then there is the upcoming vote for Palestinian statehood, where the same arm twisting is going on. The US Senate has already approved a bill that will cut off aid to the Palestinians if they seek statehood and the White House has let it be known that countries that support the Palestinians will not be viewed in favorable terms by Washington when it comes time to renew trade agreements. Netanyahu also promoted his negative assessment of the Palestinians during a recently completed charm offensive in Europe, a tour that was tactically supported by every United States Ambassador along the way, even though the US is not in any way threatened by the creation of a Palestinian state. Throughout , Israel and the United States have made every effort to distort and defame both the Gaza Flotilla and the drive for Palestinian independence. The pressure exerted on the European governments to stop the flotilla and vote against Palestinian statehood has been both enormous and largely invisible. And it has been an effort fully coordinated between the United States and Israel.

And a lot of the to-ing and fro-ing is being supported by new legal tactics that were dubbed Lawfare by Air Force Deputy Judge Advocate General Major General Charles Dunlap following 9/11, even though the tactic of using law to subvert a constitutional government had been around for quite a while, having been developed by Nazi jurist Carl Schmitt in the 1930s. In its American version. Lawfare initially was framed around taking the offensive against groups that were impeding executive prerogatives by arguing for due process for Guantanamo detainees, in favor of protections provided by the Bill of Rights, and supportive of US observance of the Geneva Conventions. This offensive took the form of accusing these groups of waging their own version of Lawfare even though they were trying to protect the Constitution and the Rule of Law, not subvert them.

Lawfare was seen as a legal mechanism for attacking the Bush Administration critics, who were mostly progressives who were admittedly themselves using existing international law to target senior government officials including Donald Rumsfeld and Ariel Sharon, men who were widely regarded as war criminals. Following the successful arrest of former Chilean dictator Augusto Pinochet in Britain in 1998, lawsuits charging crimes against humanity were filed against generals and statesmen transiting Europe or in other jurisdictions that accepted the international applicability of war crimes.

Lawfare was a response to these challenges and is the term most appropriate to describe the legal tactics being employed currently by the United States and Israel. Lawfare, which is essentially a state of continuous war without bloodshed, challenges the rule of law and constitutionalism. It has two aspects. It can be used to expand government prerogatives, to make what has been illegal legal and also to indemnify those government employees who have carried out actions that once would have been considered violations of law. That is essentially what John Yoo and Jay Bybee did in the George W. Bush White House when they issued legal judgments authorizing torture as an executive privilege. It is also what the Barack Obama Administration has been doing in obtaining legal advice endorsing immunity for torturers, in expanding the FBI use of National Security Letters, and in saying that the war against Libya is legal.

The other side of Lawfare, as the name indicates, is using the law itself as a weapon of war. The Israelis and American supporters of Israel have caught on to the potential of the legal weapon and are using lawsuits to tie up opponents. In a recent outing, to stop last month’s Gaza Flotilla, a lawsuit was filed in federal court in New York City claiming that the sponsoring organization the Free Gaza Movement was raising money and preparing ships to be used in “hostilities” against American “ally” Israel. The suit was initiated immediately after Secretary of State Hillary Clinton and the State Department made clear that they would do absolutely nothing to protect anyone wishing to sail to Gaza.

The lawsuit was filed with the assistance of the Shurat HaDin or Israel Law Center, which has been established as a Non-Government Organization intended to use the law against groups that are critical of Israel. The objective is to harass such groups with litigation so they become ineffective or, even better, bankrupted by legal costs. Shurat HaDin was also behind a simultaneous lawsuit filed in Greece claiming, incorrectly, that the flotilla ships had not complied with Greek safety and other regulations for seaworthiness and that they therefore were departing illegally. Both the claims 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 place the sailing in limbo.

On its website, Shurat HaDin claims that it is “fighting for the rights of hundreds of terrorist victims.” In its relentless assault on the Gaza Flotilla 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 that provide maritime insurance to the extremists’ ships demanding that they terminate their services. Several of the companies, including Lloyd’s of London, wrote us back saying they would not insure the flotilla boats. Today, Shurat HaDin sent warning letters to the UK and US 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. The legal warning, sent to both INMARSAT and its senior corporate officers in the US and UK, asserts that under US law, INMARSAT and its officers will be open to charges of aiding and abetting terrorism if it provides satellite services to the Gaza-bound ships.”

Existing legislation in the US 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 broad language makes it easy to initiate this type of litigation, so it is reasonable to assume that more of this will be coming from the well-funded Shurat HaDin, much of it probably playing out in American courts. Any group deemed to be hostile to Israel will be attacked and litigated against. Many of the charges will be frivolous but those who are sued will have to waste time and resources defending themselves, which is precisely what is intended.

When the pro-Israel agenda is combined with a general tendency by Republican and Democrat alike in Washington to legalize unconstitutional behavior, it becomes clear that Lawfare is here to stay. Unlike invading a country and having to explain why, it incrementally accomplishes the same objective of neutralizing enemies with little fanfare or warning. Canadian legislators are already considering making any criticism of Israel a hate crime, and once the idea takes hold here in the United States something similar is sure to follow, creating yet another basis for litigation. And let’s not forget the possibility that the US government will someday make it illegal to criticize any and all wars it is fighting — the precedent for doing just that already exists in the Espionage Act of 1917, which is still on the statute books. Torture, targeted assassination, and wars of choice are already judged to be “legal” by those in charge in Washington. It just requires a bit more fine tuning using Lawfare to produce the kind of country where political dissent rapidly becomes an endangered species.

Author: Philip Giraldi

Philip Giraldi, a former CIA officer, is a contributing editor to The American Conservative and executive director of the Council for the National Interest.