Lawfare Links and Comments [Updated]

In 4GW, the use of non-Kinetic power is as important (if not more so) then kinetic power.

I am fascinated by the practice of lawfare (I am not a lawyer, though law school was a mental plan B that I had and occasionally think about). It is type of legalistic judo where the rule-sets and systems of a state actor are used against it by opponents (internal and external) often in conjunction with other kinetic activities (e.g. terrorism) and non-kinetic activities (e.g. psychological warfare, Information Warfare).

What follows, are some recent examples and links.

From LGF: Legal Aid Offered to CAIR Targets

People from across the board are outraged at the Council on American Islamic Relations’ announced plan to file lawsuits against US Airways passengers who reported the six non-flying imams. Now the American Islamic Forum for Democracy has offered to pay for the legal defense of any “John Doe” passengers who end up being sued by CAIR.

This is a sort of counter-lawfare (against CAIR). Good, we need more of that.

From Powerline: The Bureaucratic War on the Bush Administration

In today’s New York Sun Josh Gerstein reports on the government’s
reponse to his Freedom of Information Act request regarding the Justice
Department’s leak investigations: “Leak probes stymied, FBI memos show.”
The story is mystifying. As I read it I wondered why no grand jury has
been convened and evidence gathered the old-fashioned way. Then Joe
diGenova is quoted expressing the same mystification at the conclusion
of the article:

A former prosecutor who has accused
career CIA officials of waging a leak campaign to undermine President
Bush, Joseph diGenova, said yesterday that he suspected the resistance
to the investigations was part of that effort. He also questioned why
the leak cases were dropped.

“Stopping a leak investigation, assuming it’s a serious leak, just
because the victim agency won’t cooperate is the most absurd thing I’ve
ever heard in my life,” Mr. diGenova said. “A grand jury subpoena
should issue….It seems to me there should be some sort of Congressional
investigation of those instances.”

The disclosed records also suggest that many investigations into
leaks of top-secret data are abandoned without pursuing some obvious,
if intrusive, investigative techniques, such as seeking testimony or
phone records from members of the press. Other components of the
Justice Department have recently used those tactics in less sensitive
cases, such as leaks about planned federal raids of Islamic charities
and about a grand jury investigating steroid use in baseball.

“There is a stunning lack of balance in the way all these cases are approached,” Mr. diGenova said.

Bureaucratic Warfare sounds a lot-like slow-motion lawfare…misuse of the legal systems by multiple parties with a shared goal and in this case, the executive branch of the federal government.

LGF: MPAC Threatens Steven Emerson

Terrorism expert Steven Emerson is being threatened with legal
action by the Los Angeles-based radical Islamic front group calling
itself the Muslim Public Affairs Council: Threatened by the Jihad.

On January 26, 2007, I appeared on
Fox News Channel’s Hannity and Colmes program to discuss a January 8,
2007 meeting between the Attorney General of the United States and
various Muslim and Arab groups, some of which have a long history of
supporting terrorist groups and extremist ideologies. In response to a
question from Alan Colmes about the importance of “good relations”
between Attorney General Gonzales and the Muslim community, I stated,
“[b]ut when you say the ‘Muslim community’ – [the Attorney General] is
anointing them representatives of the Muslim community, when in fact
there are many others who support the war on terrorism, who don’t tell
their members not to cooperate with the FBI, who don’t support Hamas
and Hezbollah, unlike members of this group. So, in fact, I think it’s
wrong to confer legitimacy on those very organizations that inhibit
cooperation with the FBI, that support Hamas or justify Hezbollah, and
who are radical in terms of portraying the war on terrorism as a war
against Islam.”

On February 16, 2007, MPAC’s lawyer sent me a letter demanding an
apology for my allegedly “[f]alse statements about the Muslim Public
Affairs Council on Hannity and Colmes.” The letter demands that I
“immediately issue a public apology and … cease and desist from
making false statements about MPAC,” and that “MPAC is willing to
pursue all available legal remedies” should I not comply with MPAC’s

LGF: Outrage of the Day

As we reported Monday, those six Islamic clerics who were removed from a US Airways flight at Minneapolis-St. Paul airport for suspicious behavior have launched a lawsuit against the airline, with help from the professional grievance mongers, CAIR.

But that in itself isn’t today’s outrage; the really disturbing part of this story is that CAIR plans to sue not only US Airways, but the passengers who witnessed and reported the imams’ behavior.

US News and World Report:  A Different Brand of Warfare
How cross-border legal moves are giving the White House lots to worry about

Law war. Publicly, the Pentagon has described the suit as without merit. But privately, Bush administration officials acknowledge that this type of “legal warfare,” or “lawfare,” is a diplomatic time bomb that could create huge “bilateral headaches.” Separately, arrest warrants issued by a Munich court against 13 CIA officers allegedly involved in the kidnapping and torture of German citizen Khaled el-Masri have also aggravated U.S.-German tensions. In Milan, Italian prosecutors are seeking the arrest of 26 Americans, many of them CIA operatives alleged to be involved in the kidnapping, rendition to Egypt, and alleged torture of an Egyptian refugee from Italy, Hassan Mustafa Osama Nasr. Portugal and Switzerland are conducting similar criminal probes. U.S. officials have no intention of turning over any of the accused, but “there’s a growing risk for current and former officials [who could be arrested] when they travel abroad,” says John Bellinger, the State Department’s legal adviser. “Senior officials may be harassed by lawsuits and subpoenas for the rest of their lives.” Yoo, the former Justice Department official, was dissuaded from teaching in Italy, sources say, because prosecutors there were mulling over legal action against him.

So, if a modern nation-state with a complex legal systems can that legal system used against it, what can be done? What can be done to raise the resiliency of the state to Lawfare Attacks?

In the past I wrote this:

  • Transparency of funded of plaintiffs (make sure the actors and their benefactors are easily known)
  • Losers pay the court fees (might not be much of a dis-incentive for well funded actors)
  • Counter-4GW/Counter-Terrorism Specialty Courts
  • De-federalize many criminal acts back to the states only (more federalism)
  • Avoid signing treaties that give opponents Lawfare Opportunities
  • Consider amending U.S. Constitution to enact something like a Bricker Amendment variant
  • Transparency in the records of complaints and sanctions against attorneys
  • Court filing (Especially A vs B represented by C,D, Etc.) should be webified in a manner conducive to data mining by the press and and others (like citizen bloggers)
  • Allow greater leeway in judicial sanction against frivolous court actions
  • speed up the court/trial system

I have thought of a few more ideas since then.

  • Empower judges to through out frivolous lawsuits and extend penalties to attorney abuse of system
  • Use of part-time court commissioners to speed up legal process – can’t drag out the abuse and run up the costs for the other side
  • Counter-lawfare “abuse of process” lawsuits – Make tort actions easier
  • Rico-like counter-lawfare legislation recognizing lawfare abuse-of-system as a activity with criminal and civil penalties.
  • The US should practice and coordinate Lawfare activities of its own against its opponents and other actors where appropriate.

What other ideas are out there?

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