More than One Way to Fight the War on Terror

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In 1996, Hamas gunmen shot to death David Boim, a 17-year-old American citizen waiting for a bus in the West Bank. At the behest of Boim’s parents, attorney Nathan Lewin filed suit against charitable organizations in the United States who solicited funds for Hamas. The unorthodox decision to seek damages from Hamas's financial backers led defense attorneys to demand that the court sanction Lewin and his co-counsel for bringing a frivolous suit. But the final result, affirmed by a federal appeals court in 2008, was a groundbreaking $156 million judgment against Hamas's backers. Boim's parents were only able to collect a fraction of the damages, but their suit helped to shut down the Hamas financial network in the United States, in part by spurring the Justice Department to take the threat seriously.

The Boim case represented a turning point in the effort of both private citizens and the federal government to use the law as a means of punishing terrorists and their sponsors. One of Lewin's fellow attorneys in Boim soon brought suit against Iran for sponsoring the 1983 bombing of the barracks in Beirut that killed 241 Marines. The lead plaintiff, the sister of a fallen Marine, told reporters: "We don't want to be victims of terror anymore. We want to be soldiers in the war on terrorism; the courtroom is our battlefield."

The story of Boim and its progeny plays a critical role in this insightful and comprehensive new book. Orde Kittrie is a professor of law who spent more than a decade as a State Department attorney. Kittrie is not just a chronicler of lawfare, however, he is also a practitioner. In 2008 he noticed that Iran relied heavily on foreign firms to import gasoline, since it lacked the capacity to refine much of its plentiful crude oil. He then discovered that Reliance Industries, a major supplier of Iranian gasoline, had received $900 million in loan guarantees from the Export-Import Bank. This led multiple senators and congressmen to contact the Ex-Im Bank and demand a review of the loan guarantees. The day after the congressmen released their letter, Reliance shares lost 5 percent of their value. Soon, the company stopped sending gasoline to Iran.

An important purpose of Lawfare is to change how Washington thinks about it. First used in the 1970s, the term entered into widespread circulation in 2001 as the result of an influential article by an Air Force colonel named Charles Dunlap. Dunlap expressed frustration at the ways in which adversaries manipulate American respect for the laws of war, especially those that protect civilians: "For the Taliban to survive it is not necessary for them to build conventional air defenses," he wrote. "Rather, just by operating amidst civilians, they enjoy a legal sanctuary .  .  . that is as secure as any fortress bristling with anti-aircraft guns." Where Dunlap mainly saw a restraint on American power, Kittrie sees an opportunity. The United States is a legal superpower—Kittrie may be the only author who celebrates the surfeit of lawyers in Washington—and if the United States can cast aside the mindset that condemns lawfare as dishonorable and manipulative, it can turn the weapon against its adversaries. Best of all, this weapon often costs far less to employ than the actual implements of war.

While critics who share Dunlap's concerns may be won over by demonstrations of how the United States can exploit lawfare, Kittrie's adversarial approach is unlikely to sit well with those scholars and scholar-practitioners who dominate American discussions about international law. These lawyers instinctively approach international law as a set of constraints with which the United States ought to comply, like a dutiful citizen of the international community. In the words of Yale's Harold Koh, the State Department's top lawyer during 2009-13, the department's lawyers' "key role is to promote the rule of law" and resist the idea that "obeying the law should be done only when convenient." Kittrie counters that his approach to lawfare represents an extension to foreign policy of the belief that every client deserves a lawyer who will fight as hard as possible for the client's interests within the parameters allowed by law. American legal culture tends to celebrate the criminal defender who gets his client off, or the corporate attorney whose procedural acumen protects his client from lawsuits. Why doesn't the federal government deserve the same tenacious advocacy, especially when its adversaries include terrorists and hostile dictatorships?

Kittrie also makes the point that, regardless of whether the United States adopts this instrumental approach to lawfare, our adversaries have already done so. While American scholars in recent years have only begun to publish significant works about lawfare, the Chinese People's Liberation Army has published three volumes on falu zhan, or legal warfare, since 2004. In 1996, the same year that David Boim was gunned down, China's president Jiang Zemin told a group of Chinese international law experts that "we must be adept at using international law as a weapon." Indeed, in 2003, China's Communist party and Central Military Commission approved legal warfare, alongside media warfare and psychological warfare, as one of three principal nonviolent means of waging war. Beijing's attorney-warriors have launched an ongoing campaign to shape maritime law, aviation law, space law, and cyber law to their country's advantage.

Lawfare deserves a prominent place on bookshelves at the State Department and the Pentagon, as well as ministries of defense and foreign affairs across the globe. I suspect that it is already being read with great interest in places like Tehran and Beijing, which is all the more reason that American lawmakers and policymakers should absorb and apply its lessons as swiftly as possible.

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