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The U.S. Court of Appeals for the District of Columbia Circuit will soon confront the question of whether, under the Military Commissions Act of 2009, conspiracy to violate the law of war is an offense triable by law-of-war military commission. In June 2006, a plurality of the Supreme Court in Hamdan v. Rumsfeld determined that the Government failed to make a colorable case for the inclusion of conspiracy among those offenses cognizable by law-of-war military commission. The plurality’s reasoning was largely based on its survey of domestic law sources and precedents. That survey, however, was inaccurate and incomplete.

This Article examines and expounds upon the domestic law sources and precedents, spanning from the Civil War to beyond World War II, that inform the issues surrounding the charge of conspiracy to violate the law of war. These sources and precedents are supplemented by the scholarship of highly respected military law historians who continually recognized conspiracy as an offense triable by law-of-war military commission. Crucially, the Hamdan plurality relied on one such scholar for a principle that he did not assert, and this author’s discovery of a critical record-keeping error illuminates the defects in the Hamdan plurality’s rationale.

The Article concludes that a thorough analysis of historical evidence leads to a substantial showing that conspiracy to violate the law of war is, itself, a violation of the law of war that has traditionally and lawfully been tried by law-of-war military commission.

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Abstract

The term “lawfare” has become part of the lexicon of the current global conflict and although it is defined in various ways, it is essentially a way to describe legal activities within the context of armed conflict. To date, the term has not been applied to legal activities focused on negatively impacting United States’ adversaries. This article seeks to expand the lawfare conversation and encourage a policy dialogue by weaving it together with the Army’s operational doctrine and counterinsurgency doctrine.

The United States Army’s operational concept provides a framework to conceptualize “offensive lawfare” which, in the current global counter-insurgency conflict, should be understood to include efforts to deny enemy forces sanctuary, to blunt their abuse of courts, and to use both foreign and domestic courts to better support our national security strategy. Policy discussions to improve our offensive lawfare posture should include providing support to litigants in certain domestic and foreign court actions that are deemed to be congruous with these ends. More specifically this article advocates broadening the national security policy discussion to include providing support to plaintiffs in terrorism related civil litigation domestically, to certain defendants in certain foreign criminal actions, to defendants in foreign civil litigation that is deemed to be related to the current conflict, and to plaintiffs pursuing foreign causes of action against terrorist organizations and their supporters.

I.  Introduction

During the past decade the United States and its citizens have been subjected to numerous legal actions in European and domestic courts that appear to be aimed at negatively impacting the United States’ ability to fight Islamic extremists. These cases range broadly and include actions to enjoin the United States from targeting certain individuals,[1] actions to silence critics of radical Islam,[2] incessant abuse claims by detainees,[3] and actions seeking damages for alleged wrongs associated with the investigation, prosecution and detention of Islamic terrorists and their supporters.[4] This type of activity has been described as “lawfare” by numerous legal scholars and other commentators.[5] The resultant court actions tend to place the United States in a defensive posture and have several potentially negative results. This Article proposes an approach with a view toward a more positive strategic effect on the overall war effort.

The lawfare concept just described raises the question of whether the United States can or should adopt a policy to change its defensive posture within these venues. Options for the United States to incorporate more offensive lawfare policies into its current conflict strategy should be carefully considered before undertaking such a policy change. The lawfare concept discussed below offers a construct within which to explore policies to disaggregate legal actions that are apparently aimed at negatively impacting the United States’ ability to conduct offensive operations against Al-Qaeda and its affiliates, but also to explore policies to actively pursue or support actions in foreign and domestic courts aimed at degrading Islamic extremist capabilities and activities. Minimizing the abuse of legal forums by foreign and domestic adversary groups should not be forgotten, but the fundamental policy conversation should focus on acknowledging the expansion of the battlefield into this arena as a reality of 21st-century warfare and incorporating this battlespace into the national security strategy. While some would argue that this policy conversation is long overdue, the need for it, at this time, is made even clearer as we choose to disengage from large, conventional military commitments undertaken in the past decade and inevitably focus on more economical means of countering our adversaries.

II.  Scope of the Term “Lawfare”

 The term “lawfare” has not yet gained a generally agreed upon definition, perhaps because it is such an evocative portmanteau word. At present, there appear to be three basic lines of reasoning that support different approaches to defining and using the term lawfare. These three basic approaches are best categorized as the neutral approach, the negative approach, and the nexus approach. Each of these approaches adds texture to the conversation of how “lawfare” should be understood and help frame the problem.

In its most basic and “neutral” approach, the term lawfare “describes a method of warfare where law is used as a means of realizing a military objective.”[6] This broad definition, proffered by Air Force Judge Advocate, Colonel Charles Dunlap, in a 2001 article on humanitarian interventions has been widely cited. The article itself is generally recognized as having started the lawfare conversation over the past decade. In 2008, then Major General Dunlap offered a more refined but still neutral definition by describing lawfare as “the strategy of using – or misusing – law as a substitute for traditional military means to achieve an operational objective.”[7]

The “negative” approach, as the title suggests, ascribes a particularly negative connotation to the term lawfare and is usually used when referring to the abuse of legal ideals and systems by non-State actors and aimed at influencing State behavior.[8] The “negative” approach is also contained within Dunlap’s earlier article where he uses the neutral definition as context for a more narrow, and arguably more emotionally charged discussion of opposition efforts to undermine public support, by making “it appear that the U.S. is waging war in violation of the letter or spirit of [the law of armed conflict].”[9] A further refinement of this negative connotation uses the term only to describe abuses when the objective appears to be to undermine the foundations of the legal system in which the action is taken; such as using liable laws to hinder free speech.[10] Certainly this type of illegitimate activity within a legal system merits the specific attention for counter-measure development, which this refinement seeks to generate. The fact that making spurious abuse complaints in courts is advocated in Al-Qaeda training manuals[11] and the frequency of such complaints by Al-Qaeda members and other supporters of extremist Islamic ideology lends credence to the notion of lawfare as an abusive practice.

The “nexus” approach can be best understood as framing “lawfare” as activities with a legal nexus, undertaken during times of armed conflict. The nexus approach includes a wide variety of discussions simply because of the diversity of wartime activities that have some direct or indirect legal component.[12] Some, ascribing neither negative nor positive connotations to the activity, have described the use of military commissions in occupied territories as a form of lawfare.[13] Others have used the term to negatively label any action they deem to be unfair, if attributed to governmental officials associated with alleged terrorist cases.[14] Brigadier General Mark Martins, the first Commander of the Rule of Law Field Force – Afghanistan, views using the rule of law to set conditions for successful counter-insurgency (COIN) operations as “affirmative lawfare” and explains:

By building legal institutions that have credibility and authority, wielders of COIN lawfare serve the ends at once of helping protect the population and of holding all of the other COIN instruments … to purposes and methods that comply with law and advance the project of unhinging the enemy on a political level.[15]

While not unreasonable, these “nexus” uses arguably conflate the use of legal processes during a time of war, regardless of its purpose or effect, with the use of legal processes as a means of warfare.[16]

Although the debate over a specific definition of lawfare may continue for some time, the three approaches collectively suggest that a holistic embrace of the topic might prove useful to U.S. policy makers in the current conflict. The negative branch, by framing lawfare as an abuse of legal ideals and processes, suggests that lawfare is only a tool to be used by enemies of the United States and thus implies that the United States should only consider a defensive policy. The nexus branch, by framing lawfare very broadly, fundamentally suggests a stability and civil support operations view of lawfare, but it also “…challenge[s] the common perception that lawfare is a strategy of America’s enemies … .”[17] The neutral branch does not limit policy options by ascribing either negative or positive connotations to the subject, but neither does it suggest a road for policy makers. Considering these three approaches within the broad framework of the Army’s operational concept, highlights what may be missing from the United States’ policy conversation to arrive at a comprehensive and holistic approach to this issue.

III.  Framing Lawfare Within Full Spectrum Operations

The Army’s operational concept, articulated in Army Doctrine Publication (ADP) 3-0, Unified Land Operations,[18] was developed during and with insights gained from the obvious failures of both the civilian and military leadership in conducting operations during the current conflict.[19] Unified Land Operations builds on the concept of “full spectrum operations,” first expressed in the 2008 version of Army Field Manual 3-0, Operations[20] and which was then explained as: “Army forces combine offensive, defensive, and stability or civil support operations simultaneously … to seize, retain, and exploit the initiative, accepting prudent risk to create opportunities to achieve decisive results.”[21] A critical change in thinking that led to this doctrine was the recognition of the requirement for the Army to be prepared to conduct three fundamentally different activities, requiring fundamentally different skills, simultaneously. For the Army, achieving balance within the full spectrum construct, in order to meet the nation’s expectations for current and future conflicts, meant developing and maintaining stability and civil support skills to a level equivalent to offensive and defensive skills. Following this construct, Unified Land Operations “recognizes the three-dimensional nature of modern warfare and the need to conduct a fluid mix of offensive, defensive, and stability operations or defense support of civil authorities simultaneously.”[22] Given that lawfare appears to be a reality of the current conflict, the Army’s operational construct provides a framework for balancing discussions which have thus far viewed lawfare from only “defensive” and “stability and civil support” operations perspectives. Overlaying the Army’s full spectrum operational concept on the lawfare discussion suggests that policy makers have either discounted, or have failed to consider, “offensive” lawfare operations as a means to achieve the desired ends in the current conflict. Adding offensive lawfare to policy discussions may eventually provide sufficient balance for simultaneous offensive, defensive, and stability and civil support lawfare operations to seize, retain and exploit the initiative in this arena.

IV.  Framing Lawfare Within COIN Doctrine

Beginning with the view that the current conflict is best described as a global counterinsurgency (COIN) fight, one can use COIN doctrine to provide a framework within which to conceptualize the utility of, and perhaps the initial objective of, offensive lawfare in the current conflict. Although the former Secretary of Defense did not label the current conflict a global COIN fight, in 2009, he hinted that this categorization is not unreasonable, stating: “What is dubbed the war on terror is, in grim reality, a prolonged, worldwide irregular campaign … .”^[23] Specifically using the global COIN fight analogy to describe the current conflict is however advocated by writer and consultant, David Kilcullen. While, for various reasons, high ranking administration officials tend to avoid describing the current conflict in terms of COIN, Kilcullen’s terminology may be the most accurate and has the advantage of combining distinct strategic perspectives from having served in the Defense Department as a COIN strategy adviser to General Petraeus in Multi-National Forces – Iraq (MNF-I) and later as the Chief Strategist in the State Department’s Office of the Coordinator for Counterterrorism.[24]

COIN theory has long identified sanctuaries as enablers of insurgent activities,[25] and current COIN doctrine points out that eliminating all sanctuaries is a key ingredient for effective COIN operations.[26] Historically, COIN theorists and strategists have spoken in terms of physical sanctuaries such as those demarked by restrictive terrain or by international boundaries. The Army’s COIN manual recognizes that the meaning of the term sanctuary has been expanded over time to include “’virtual’ sanctuaries [such as] the Internet, global financial systems, and the international media.”[27] At least one military official, Major David Wise, has postulated that insurgents now seek to take advantage of sanctuaries in the following realms: physical, social, virtual, and legal.[28] Major Wise does not use the term lawfare; however, he describes “operating under the protection of the laws and freedoms of the western democracies they seek to destroy”[29] as one use of legal sanctuary. He also echoes Army COIN doctrine by suggesting that an effective COIN strategy should pursue the elimination of all forms of sanctuary regardless of their manifestation. Although an offensive lawfare policy may provide some immediate direct impact on our enemies, within the framework of a global COIN fight, this impact is insignificant relative to the policy objective of offensive lawfare which should be to eliminate this arena as either a real or perceived sanctuary. The most important benefit of using the global COIN construct is that it appreciates the prolonged nature of COIN fights generally, and thus sets the stage for making policy decisions that are designed for long-term yields with strategic patience in mind. How courts are currently portrayed in the National Security Strategy[30] is instructive in framing the environment for such a policy discussion.

V.  Current National Security Strategy

Criminal prosecution of terrorists in domestic courts is specifically included in the National Security Strategy which states: “When we are able, we will prosecute terrorists in Federal courts or in reformed military commissions that are fair, legitimate, and effective.”[31] In 2010, the Department of Justice published a list of just over four hundred terrorism related convictions obtained between September 11, 2001 and March 18, 2010; however, the list does not indicate how many of those cases are related to the current conflict nor does there appear to be an effort by the Administration to provide this degree of fidelity.[32] The Center on Law and Security at the New York University School of Law, on the other hand, has undertaken a more in depth analysis and, as of September 2010, listed a total of 998 federal “terrorism-associated” indictments since September 2001, of which 688 had been resolved.[33] In its 2011 report, The Center on Law and Security noted a total of 1054 terror related cases but specifically focused the report on the 578 cases it assessed as involving crimes inspired by jihadist ideas.[34] Of these cases, 431 had been resolved with an 87% conviction rate at the time of publication.[35] The 2011 report also attempted to quantify terrorist group affiliation for each case. It assessed approximately 17% of the individual defendants as being Al-Qaeda affiliated but also noted that it was unable to determine terrorist group affiliation of roughly forty percent of the individuals.[36] Even with efforts of non-governmental organizations to provide greater fidelity to federal prosecution statistics, it is difficult to judge the relation of these cases to the National Security Strategy; however, not all of these cases are related to national security in the way envisioned by that document.

Criminal prosecution of terrorists and those that provide them material support has benefits as well as weaknesses that are not unique to this type of prosecution. It is nonetheless an inherently reactive measure, which naturally yields the initiative to the enemy and it is the only mention in the National Security Strategy of the use of courts in the current conflict. What is absent is any discussion of how the courts might otherwise be leveraged to support national security strategy objectives to “disrupt, dismantle, and defeat al-Qa’ida and its violent extremist affiliates.”[37] Even though it is not discussed in policy documents, domestic courts are at play in the current conflict by virtue of legislation that enables victims to seek redress from terrorists and their supporters; the effect of which may in fact be in concert with national security strategy objectives even absent any effort to actively leverage such legislation.

VI.  Existing Legislation Enabling Private Action in Domestic Courts

Congress and the Executive Branch have not been blind to the potential impact of private litigants in domestic courts in the current conflict even if they have not conceptualized it as offensive lawfare. In spite of some recognition of the potential impact, there has been a significant conflict between the two branches especially when it comes to dealing with State sponsors of terrorism. Although State sponsors of terrorism may appear to provide a richer target for legal actions than other terrorism enablers, it is important to distinguish State sponsors in policy discussions about offensive lawfare efforts. This is not ideal; however, it may be necessary given the reality of the conflict between the desire to permit victims to obtain compensation from State sponsors and the desire of the executive branch to engage in negotiations with those same State sponsors. The history of this intra-governmental conflict, which is well cataloged in the 2008 Congressional Research Service’s report for Congress titled “Suits Against Terrorist States by Victims of Terrorism,”[38] might shock most United States citizens, but a quick snapshot serves to illustrate why it may be necessary to distinguish State sponsors from other malign actors for policy purposes.

In 1996, Congress passed the Anti-terrorism and Effective Death Penalty Act,[39] which included an amendment to the Foreign Sovereign Immunities Act (FSIA)[40] to allow United States victims of terrorism to file civil suits in federal and state courts against certain State sponsors of terrorism.[41] Although numerous judgments were subsequently awarded under these provisions, the executive branch frustrated victims’ efforts to enforce the judgments against the State sponsors’ property held in the United States.[42] With regard to diplomatic property, the executive branch correctly argued that seizing such property would put it in violation of the Vienna Conventions on Diplomatic Relations and Consular Relations. With regard to commercial assets frozen by the United States, the executive branch argued that using those assets to satisfy the judgments exposed United States’ assets to similar treatment by other States.  In addition, the executive branch argued that, as a practical matter, frozen assets are useful leverage in resolving disputes and re-establishing diplomatic relations with those States.[43]

In 1998, Congress specifically amended the FSIA to permit assets frozen under the International Emergency Economic Powers Act (IEEPA)[44] or the Trading with the Enemy Act (TWEA)[45] to be used to satisfy judgments in terrorism cases; however, in order to get it signed into law by the President, Congress was obliged to include a presidential “national security” waiver provision, which the President then promptly exercised, effectively nullifying the amendment.[46] Continuing to pursue terror victim compensation in cases existing at the time, Congress then sought to repeal the waiver provision in 1999 and 2000[47] but settled on a modification of the waiver and the passage of a provision of law pertaining to eleven specific cases. This law required the United States Treasury to satisfy the judgments against Iran using United States’ funds and then seek reimbursement from Iran at some later date, absurdly making the United States the surety for Iranian sponsored terrorism in the amount of $380 million.[48]

On November 26, 2002, the President reversed, in part, earlier executive branch obstructions by signing the Terrorism Risk Insurance Act (TRIA) into law, which specifically made the frozen assets of terrorist sponsor States available to satisfy judgments against those States. To ensure compliance with international law, the President did appropriately retain national security waiver authority for “property subject to the Vienna Convention on Diplomatic Relations or the Vienna Convention on Consular Relations.”[49] This new legislation does help ensure that these assets will not be used to further international terrorism; however, practical problems such as how to ensure equitable treatment of victims from a limited and shrinking pool of frozen State assets still remain.

Although the bulk of what could be described as “offensive lawfare enabling legislation” has been focused on named State sponsors of terrorism, Congress has also provided for civil action against non-State supporters of terrorist organizations. The Anti-Terrorism Act (ATA) of 1990[50] (codified at 18 U.S.C. §2331, et seq.), imposes civil liability not just on organizations and individuals who commit acts of international terrorism but also on those organizations and individuals that enable such activities.[51] This has been interpreted to include individuals and non-governmental organizations (NGOs), such as charities that are part of the finance chain supporting terrorists.[52] While domestic state courts provide many common law tort causes of action that may also be used to interrupt terrorist funding streams, the ATA provides for the award of treble damages, which increases the impact, presuming assets within United States’ jurisdiction can be located.  Where the ATA provides United States citizens a cause of action, the Alien Tort Claims Act, opens U.S. courts to non-U.S. citizens for any tort, regardless of location, “committed in violation of the law of nations or a treaty of the United States.”[53] This also has been employed against terrorist supporters and financiers.[54] Notably, with regard to assets belonging to non-State supporters of terrorism, there does not appear to be an inherent conflict between our own branches of government as to the desirability of using identified assets to compensate victims.

These laws enable private parties to seek redress in U.S. courts. If policy makers conceptualize these actions as part of the global COIN fight, they might also ask what the U.S. Government is doing to maximize their effect on enemy forces. It seems logical, from a policy perspective, that the United States should encourage and otherwise enable private parties to participate in such actions and should assist in identifying, locating and executing against assets of judgment debtors in these cases;[55] however, there is little evidence of this being done. One provision within the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA) currently addresses part of this concern. It amended the FSIA so that it now states that the “Secretary of the Treasury and the Secretary of State should make every effort to fully, promptly, and effectively assist any judgment creditor or any court that has issued any such judgment in identifying, locating, and executing against the property of that foreign state or any agency or instrumentality of such state.”[56] By using the permissive term “should,” this provision does not mandate support; however, it may serve as a template to add similar provisions to other anti-terrorism legislation and to guide United States’ policy in countering “negative” lawfare actions in the current conflict.

VII.  “Negative” Lawfare Actions and Consequences in the Current Conflict

As previously noted, one particular feature of the current conflict is that the United States and its citizens have been the target of numerous legal actions in European and domestic courts that appear to be aimed at negatively impacting the United States’ ability to fight Islamic extremists.[57] This feature of the current conflict supports the “negative” branch of the lawfare discussion and, as noted, has several potentially negative results for the United States.[58]

The most apparent negative tactical effect is the additional cost to the government and its employees both in time and resources. However, a more pernicious short to mid-term effect may result from the intimidation felt by individuals, who would otherwise take action or voice opinions contrary to Islamic extremist interests in the normal course of executing their official duties.[59] The very real threat of personal monetary loss resulting from suits filed against individuals in both the government and private sector is probably intended to, and likely causes hesitation, or inaction by these individuals. The fact that Congress has taken action to counter some of the negative repercussions of abusive liable filings in European courts indicates an awareness of this tactic and its consequences. The SPEECH Act, which was signed into law in August 2010, should reduce the intimidation impact from liable suits filed in European courts by prohibiting enforcement of judgments in the United States in such cases unless they meet United States’ due process and free speech standards.[60] This law applies equally to cases associated with Islamic extremism and to those that have no bearing on the current conflict; however, the United States government otherwise has no policy to counter the potential personal intimidation impact of such filings.

Pursuing a more aggressive national policy to counter personal intimidation associated with foreign and/or domestic court actions may be an appropriate means of blunting this enemy tool and should help deny them the sanctuary from which they feel empowered to launch such attacks. Though it will likely entail additional costs, the cost should be balanced against United States’ long term interests. Some of the additional cost to the Government is an inevitable part of seeking to ensure that our enacted values are aligned with our espoused values as they pertain to our commitment to the rule of law. Shrinking from these principles to avoid additional cost should be non-negotiable even if it appears to be playing into the short-term enemy tactic.

A far greater concern to the United States Government should be countering the longer-term potential collective or compounded public perception impact that these filings may create.  Unanswered or unopposed, these filings may present a much greater threat to national security than mere increased short-term monetary costs. The strategy of regularized complaints and allegations primarily supports the Islamist “victimization” narrative.[61] This narrative apparently seeks to capitalize on the psychological phenomenon known as “referential validation of falsehoods,” whereby a false notion gains common acceptance through repetition.[62] The likely strategic objective of these types of complaints is to create a negative public perception and thereby diminish public support for, or encourage active public opposition to, governmental efforts to fight Islamic extremists. Filings of this nature support two of three identified “core communication strategies embodied in jihadi websites and media: the legitimation of the global jihadi movement within existing social and religious frameworks … ; and the use of intimidation to cow opponents as well as those within the Muslim world who may turn against them.”[63]

VIII.  Responses to Various Types of Negative Lawfare Thus Far

With regard to cases that are obviously or arguably related to the current conflict, the United States Government practice has been to observe both civil and criminal actions against United States persons in European courts essentially without interfering. As noted earlier, Congress and the President responded to the apparently abusive libel suits in European courts by passing a law to lessen the impact of such cases under certain circumstances.[64] Such laws diminish the potential financial intimidation impact of judgments in these civil cases; however, it is an after-the-fact remedy that only protects property within the United States’ jurisdiction and does not relieve defendants from the burden of attorney and other costs associated with defending such cases. Similar action has not been taken with regard to other civil cases, which leaves United States persons exposed not only to the costs of defending against abusive litigation practices but also to the costs of potential adverse judgments. From the international relations perspective, it may be the most prudent means of protecting United States persons from such predatory practices. Although it leaves United States citizens at least temporarily exposed and carries with it disadvantages associated with passing any legislative measure, legislative relief that responds to identified abusive practices has the advantage of not directly criticizing or challenging friendly States or their courts. Whether it remains domestically acceptable to leave the defense cost burden with individual defendants may depend upon public perception of the connection of such cases to the current conflict.

With regard to criminal complaints filed against United States Government employees for conduct within the scope of their duties, such as the 2007 rendition cases filed in Italy,[65] there may be no real pre-trial alternative to engaging with political co-equals. Although the Italians appear to have ignored their obligations under the North Atlantic Treaty Organization Status of Forces Agreement (NATO SOFA) to acknowledge the primary jurisdiction of the United States with regard to the one accused active duty service member, they did dismiss similar cases against three defendants for whom the United States asserted diplomatic immunity.[66] The cost of not directly engaging in such suits, as evidenced by the negative verdict in the Italian rendition trial, is that no counter-narrative is made public and no contrary position is offered in court, thus making adverse findings more likely, especially in politically charged circumstances.[67] In that particular case, an adverse judgment was entered, including a fine of over two million dollars.  Because one of the defendants in the case owned real estate in Italy, it was seized to satisfy the judgment.[68] A foreseeable result of choosing not to interact with the court is that United States government employees are exposed to greater likelihood of personal liability. Individuals also face freedom of travel restrictions for the remainder of their lives to avoid incarceration in foreign jails as well as the possible inability to own property or maintain bank accounts outside the United States for fear they will be seized to satisfy an adverse judgment.

IX.  Policy Options and Recommendations for a More Offensive Lawfare Posture

The fact the United States Government has prosecuted many criminal cases that the Department of Justice has classified as being terrorism related[69] and has provided for civil causes of action for victims of terrorism indicates an awareness of the utility of our own courts in countering terrorism, even if only criminal prosecution is tied overtly to the national security strategy. On the other hand, the mere existence of civil causes of action, combined with the fact that the United States Government has done little more than observe proceedings in European courts 2001, is arguably a sign that, unlike the legal scholars that have written on the lawfare phenomenon, United States policy makers in general either under-appreciate that courts indeed have become part of the battlespace of the current conflict or do not recognize the potential value of viewing courts in this light.

One official that did appear to appreciate the potential positive impact of civil litigation was a former Department of the Treasury, Under Secretary for Enforcement, who specifically included civil litigation as part of what he described as the counter-terror funding net the United States has cast. He identified the five basic components of this net as: freezing terror related assets both domestically and internationally; implementing and enforcing regulatory systems to prevent terrorist abuse of the international financial system; implementing international standards on terrorist financing; prosecuting terrorist financiers and facilitators; and civil tort litigation by terror attack victims.[70] All of these are quite logical and although it is relatively easy to assess whether we have established some capability to enable or carry out each component of the net, it is much more difficult to assess the economic impact of these components, individually or collectively, on terrorist organizations. Civil tort litigation by terror victims may be the most obvious example of the disparity between having a tool and reaping the desired result from its use. The disparity exists in part because United States government entities have adopted a passive approach with respect to civil tort litigation. This seemingly passive approach relinquishes not only an opportunity for the United States to shape the arguments within this battlespace, but also relinquishes an opportunity to eliminate a sanctuary and to establish a counter-narrative to that of the Islamic extremists.

With a view toward adopting more active measures in legal venues other than criminal, this paper advocates an offensive lawfare policy to support national security strategy objectives by leveraging foreign and domestic court actions to better “disrupt, dismantle, and defeat Al-Qa’ida and its violent extremist affiliates.”[71] Consequently, a policy discussion aimed at denying funding to these organizations while simultaneously shaping arguments and establishing a counter-narrative within the lawfare battlespace should consider not only the various forums in which the policy might be applied, but also options to increase the impact of existing causes of action within those forums. To implement this policy change, the following four broad recommendations to improve our offensive lawfare posture should be considered.

X.  Support in Domestic Court Actions

Improving the impact of anti-terrorism causes of action that currently exist in U.S. courts may be the simplest means of leveraging courts to envision and to implement. In providing civil causes of action, Congress has essentially enabled private citizens to carry on the global COIN fight on behalf of the United States.[72] Recognizing that these cases have the effect of furthering our national security objectives, it seems prudent to encourage their use and maximize their impact by providing certain forms of support to plaintiffs. The form that may have the most immediate impact could be realized by incorporating language into all anti-terrorism causes of action regarding assisting successful plaintiffs in executing judgments, similar to that found in the Victims of Trafficking and Violence Protection Act of 2000 (VTVPA).[73] It would also be advisable to make those provisions more aggressive by changing the permissive language, “should” to “shall” in order to mandate such support.

Additional support for plaintiffs could be informational and logistical and might include some forms of financial support. All of these should be considered.  Precedence for providing similar low level support to private citizens victimized in criminal actions is found in the federal victim-witness assistance program.[74] Leveraging the existing infrastructure of the victim-witness program within the Department of Justice would improve the feasibility and acceptability of this option by making it less costly to establish and administer. Regardless of the breadth of support contemplated for civil actions, any such policy would require supporting legislation to enable the expenditure of funds for those purposes.

XI.  Support in Foreign Courts – Generally

A policy of active engagement in European courts, whereby the United States intentionally becomes a party to actions, may result in a public opinion backlash due to perceptions of U.S. heavy handedness. A more politically attuned alternative to active engagement would be to provide support that is less readily apparent to the foreign public. This is not to suggest support that would qualify as “covert action,” which the U.S. Code defines as “an activity or activities of the United States Government to influence political, economic, or military conditions abroad, where it is intended that the role of the United States Government will not be apparent or acknowledged publicly.”[75] Not advertising the U.S. Government’s role may be beneficial under some circumstances; however, undertaking activities in which the United State’s role is affirmatively masked and denied carries substantial actual and potential costs that are likely not worth the expected gain. Conversely, passive or indirect support to defendants subjected to certain categories of lawsuits as well as support to groups or individuals who may have cognizable claims in foreign courts against organizations or individuals connected to terrorist activities could economically and effectively deny foreign courts as an enemy sanctuary.

XII.  Support in European Criminal Actions

With regard to criminal complaints filed against U.S. Government employees, such as the rendition cases filed in Italy,[76] assisting the defendants directly or indirectly may be possible once it is determined that the conduct was within the scope of their duties. Providing legal counsel may be one means of offering such support; however, it may have the unintended consequence of increasing negative attention in an already politically charged environment. Alternatively, Reimbursement after the fact may not be as proactive a means of support as providing legal counsel, but it probably serves to reduce the official profile of such cases. A means for such reimbursement may currently exist for service members under the Military Claims Act,[77] Federal Tort Claims Act[78] or Personnel Claims Act.[79] Although a loss resulting from legal action is not specifically discussed within these statutes, they contain discretionary language that could permit the payment of legal fees for a “within the scope of duty” claim. The objective of this type of support would be to free U.S. Government employees to make decisions without fearing the financial impact of having to defend such cases or facing any adverse financial judgments arising therefrom. Hence, enacting similar legislation for civilian employees not covered under these statutes as a matter of equity should be relatively non-contentious.

This type of support will not likely involve many cases; however, its impact could prove significant. Additionally, providing such support should require little additional infrastructure and will likely be seen domestically as politically neutral thereby making it broadly supportable. From an international relations perspective, providing such low level support should not be viewed as obstructionist, because it does not interfere with the judicial process.  One potential unintended negative consequence of providing this type of support may be the encouragement of large judgments; however, with appropriate legislation, the only property subject to seizure to satisfy such judgments would be that which is located outside the United States, thereby minimizing the public’s financial exposure in these few cases.

XIII.  Support to Defendants in European Civil Actions

The number of cases in which United States persons are subjected to civil action in European courts by those who seek to support Islamic extremist ends is likely to be greater. These defendants too should be afforded a certain level of support to blunt the effect of Islamic extremists and their supporters. As noted previously, one of the likely intended short- to mid-term effects of having to defend against civil actions brought by Islamic extremists’ supporters in foreign courts is financial intimidation; hence, the United States should seriously consider adopting policies to counter this threat. The baseline for this policy should be the existing SPEECH Act. Using the SPEECH Act as a model, the United States could enact broader legislation to prevent payment of judgments in any case deemed to be in furtherance of Islamic extremist ends, if the case fails to meet specified, U.S. equivalent standards.

Policy makers should also consider more substantial support for defendants in these types of cases to further reduce their negative impact. Such measures could begin with relatively low-cost informational and logistical support such as that provided to individuals through the federal victim-witness assistance program,[80] as is suggested for domestic civil cases. A more aggressive policy would ideally include reimbursement for expenses when it is determined that the case in question is reasonably linked to the current conflict. If support were to include reimbursement for adverse judgments that are actually collected, the United States would assume a greater financial risk; however, removing personal financial intimidation as an enemy weapon affords an incalculable benefit. Determining what types of cases should qualify for this or similar financial support will be difficult; however, an example might be to provide reimbursement of expenses in libel cases brought against a U.S. person for printing an article revealing a plaintiff’s financial connections to known terrorist organizations. Such support would not prevent U.S. adversaries from bringing suits, but may offer a more proactive approach and reduces the incentive to bring suits for the purpose of financial intimidation.

XIV.  Support to Plaintiffs in European Civil Actions

Perhaps the type of support that deserves the most exploration in seeking not only to deny the enemy sanctuary, but also to gain momentum in shaping arguments and establishing a counter narrative is that of support to plaintiffs in European civil courts. European civil courts are arguably overlooked as an offensive lawfare venue because of a pre-disposition to use U.S. courts and an expectation that they will provide an adequate means for victims seeking redress.[81] Though the pre-disposition and the expectation are both reasonable, the potential utility of plaintiff action in European civil courts should not be ignored. One problem is that international agreements currently do not require the establishment of civil remedies against terrorists or their supporters. Although the International Convention for the Suppression of the Financing of Terrorism requires State parties to create domestic mechanisms to impose liability upon those involved in terror financing, the form of the liability is optional and stated as: “criminal, civil or administrative.”[82] To address this shortcoming in international law and ensure civil liability mechanisms, some have suggested bilateral agreements or perhaps a United Nations convention on civil suits against terrorists.[83] Such reforms would certainly ensure greater depth in this battlespace in the long term. In the near term; however, a U.S. policy aimed at leveraging this venue to gain momentum in shaping arguments and establishing a counter narrative could begin by simply providing information to terror victims about existing causes of action within European civil courts that may apply to their circumstances. As suggested for support within other venues, the existing victim-witness liaison program[84] would be an ideal mechanism within which to communicate this information efficiently and cost-effectively.  Victim-witness liaison personnel could be specifically tasked with identifying and providing information to victims and their family members about resources and venues available for them to seek redress through European courts. In order to maximize the impact and reach as wide an audience as possible, such a program should also include an information campaign to inform the public about similar information.

A more aggressive policy could include encouraging, assisting and possibly enabling private parties who have been victimized, directly or indirectly, by terrorist activities to take civil legal action in foreign courts against individuals and organizations that either participate in, or provide support to, Al-Qaeda or its violent extremist affiliates. This policy would serve to not only deprive these groups and their supporters of existing financial resources by making them more susceptible to adverse judgments, but may also build a record and encourage development of a public counter-narrative to disrupt and eventually defeat them.

Policy consideration should also take into consideration relations with human rights groups. Including information about these groups as potential resources to private parties victimized by Islamic extremists would not only encourage their support, but would also give the Department of Justice and the Department of State an opportunity to engage various human rights groups in assisting with taking up the cause of terror victims in both domestic and foreign courts. Building such a bridge may eventually mitigate criticism from these groups as well; however, that should not be seen as the primary aim of this policy. Identifying human rights groups as resources for victims will allow such organizations to take credit for any compensation awarded or paid to the victims, but more importantly it will encourage them to broadcast terrorists’ misconduct and thereby strengthen the public counter-narrative.

Policy discussions should also consider the resources that will be required to monitor the evolution of cases as well as foreign legislation to provide additional information as needed, and to make proactive adjustments and react to trends. In addition, funding will be required for informational campaigns regardless of whether federal victim-witness resources are leveraged; these costs may be extrapolated, in part, from costs associated with current victim-witness program expenditures. If federal victim-witness advocates are tasked with supporting this policy, changes to current legislation (18 U.S.C. §3771) or additional legislation may be required to ensure funding for the additional responsibilities.[85] Regardless of the breadth of support contemplated for civil actions, any such policy would require supporting legislation to enable the expenditure of funds for those purposes.

XV.  Conclusion

Overlaying the discussion of “lawfare” with the Army’s operational concept and counter-insurgency doctrine provides a framework within which to conceptualize a gap in our thinking about the use of courts in the current conflict. While available in theory, it does not appear that the United States has yet pursued a policy for leveraging either foreign or domestic courts in its current fight against Islamic extremists other than in specific criminal cases and as an ancillary effect of some limited domestic civil litigation. The policy options discussed for providing support to litigants in certain domestic and foreign court actions are aimed at denying our adversaries a form of sanctuary, blunting their abuse of these courts and leveraging both foreign and domestic courts to better support our national security strategy with regard to the current conflict. Accepting a more holistic view of lawfare to include “offensive lawfare” will enable U.S. policy makers to conceptualize its much greater potential to serve as a weapon in the global COIN fight than is currently understood and should be the starting point for policy discussions.

Al-Qaeda and its affiliates actively “seek[] American homegrown recruits to implement a campaign of individual jihad and do-it-yourself terrorism.” This presents a formidable and unavoidable national security challenge. However, unlike other nations (notably Britain), facing similar—or perhaps even greater—threats from foreign nationals the “United States does not have a domestic counter-radicalization strategy.” The effort, rather, has been delegated to the often-inconsistent approaches of various federal, state, and local law enforcement agencies.

A notable exemplar, the NYPD is taking measures to protect New York from the threat posed by radicalization of its citizens. Such an effort is not problematic in itself. As justified by recent events, our nation’s economic and cultural capital cannot be blamed for taking measures to protect itself, especially where federal guidance is lacking. Problems arise, however, when the NYPD uses indefensibly invasive methods to meet its justifiable ends.

This month, it surfaced that the NYPD has been monitoring Muslim student associations at universities far from the five boroughs—notably at Yale—as “part of a larger effort to build databases of where Muslims live[], pray[] and shop[].” The report follows a previously released Associated Press investigation documenting, among other methods: further infiltration of Muslim college students, surveillance of Muslims who choose to directly assist the NYPD’s anti-terror operations, and, most troubling, creation of a Demographic Unit, which hires “mosque crawlers,” and maps Muslim neighborhoods by “monitor[ing] daily life in bookstores, bars, cafes and nightclubs,” and collect[s] information on people who show[] no signs of radicalization.”

While some heightened suspicion of the Muslim-American community may be warranted, the NYPD goes too far. Historically, in times of global conflict, we have increased pressure at home on those domestic communities most closely resembling our enemies overseas. Such efforts—always taken in the name of national security—gave birth to some of our most regrettable intrusions on traditional liberties guaranteed by the Constitution. Notable examples include the 1942 internment of Japanese-Americans and the Red Scares of the early and mid 20^th century.

The NYPD’s approach to domestic radicalization of jihadists is not categorically different than these historical oversteps and poses its own set of problems. First, the NYPD’s program disproportionately and aggressively targets one discrete and insular community. The disproportionality may be unwarranted, given that in the 10 years following 9/11 there were just “32 homegrown jihadist plots to carry out attacks in the United States. Most of these plots never got beyond the discussion stage.”

Second, and more importantly, from a security perspective, the NYPD’s approach suffers from a major strategic flaw: its ineffectiveness.

The NYPD’s methodological approach towards policing the Muslim-American community—focusing on the “influence of expected rewards and penalties … [rather than] legitimacy and morality”—serves to actively harm the counterterror effort, according to a 2010 study. Put differently, the NYPD seeks to elicit compliance with the law by publicizing the consequences of transgression, rather than promoting adherence to the law as a normative value. While both methods can be effective, the “deterrence-based model” necessarily limits the likelihood that individuals under generic suspicion will actively cooperate with police. This has significant effects in the counter-terrorism realm. Per the study, Muslim-Americans are almost universally loyal to the United States and abhor terrorism, yet are hesitant to provide much-needed information to law enforcement when they are viewed as members of a group universally classified as suspicious. Accordingly, the study found a “robust correlation between perceptions of procedural justice and … legitimacy and willingness to cooperate among Muslim American communities in the context of antiterrorism policing.”

For a law enforcement community that relies extensively on Muslim-Americans as informants, such cooperation is essential. Mother Jones reports that almost half of criminal prosecutions for terrorism rely on informants, and that “all [but three] of the [FBI’s] high-profile domestic terror plots of the last decade were actually FBI stings,” where informants tend to be vital. Thus, aggressive and suspicionless investigation of the Muslim-American community actively limits the availability of law enforcements’ preferred strategy.

Further, the NYPD’s efforts not only deter would-be informants, but also limit the chances that Muslim-Americans will put law enforcement on notice of members of their community who may be ideologically radicalizing. This is quite intuitive: groups under suspicion by law enforcement typically become suspicious of law enforcement. Muslim-Americans fear that if they report their suspicions, they will become the targets of even further invasive policing.

It’s clear that the NYPD’s methods, through fear, will deter and/or force further underground certain would-be belligerents. What is equally clear, however, is that such fear will also deter individuals from assisting police in the counterterrorism effort, either by serving as informants or reporting suspicious behavior.

In sum, the NYPD confronts an unenviable dilemma. They face a real threat to New York’s security, but lack the traditional authority to address it. Further, the institution possessing that authority, the federal government, has put forth no general program to address that threat. Thus, as can be expected, the NYPD has taken decisive action. Condoning the basis of some action, however, is different than condoning any action. The NYPD should re-evaluate its approach in investigating the Muslim-American community such that it respects the traditional rights and protections expected by all Americans. Doing so will strengthen, rather than hinder, the NYPD’s ability to prevent future acts of terrorism.

Image courtesy of TLJ News.

The United States Supreme Court has indicated that it will question, and possibly restrict, the use of the Alien Tort Statute (ATS), 28 U.S.C. § 1350,  to bring lawsuits for violations of the law of nations that take place outside the sovereign territory of the United States. The statute, first passed in 1789, provides that: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” After lying largely dormant for nearly 200 years, the ATS was revived in the 1980 case of Filartiga v. Pena-Irala. In Filartiga, the Second Circuit allowed a Paraguayan couple to sue a Paraguayan police officer in a U.S. court for allegedly torturing their son in Paraguay. Since then, the ATS has been used to allow non-U.S. citizens to sue other non-U.S. citizens in U.S. court for violations of international law taking place outside of the United States. This has created a forum for litigating international human rights cases, such as a lawsuit against Serbian leader Radovan Karadzic for genocide, war crimes, and crimes against humanity. Important human rights cases frequently cannot be brought elsewhere, and actions oversees often have significant connections to the United States. However, such cases also have the potential to upset international relations by having U.S. courts appear to pass judgment on the rest of the world and by allowing these lawsuits to involve the United States in delicate situations.

Kiobel v. Royal Dutch Petroleum originally presented the narrow question of corporate immunity from such lawsuits. On March 5, the Supreme Court took the unusual step of ordering the lawyers in Kiobel to return next term with an expanded argument addressing: “Whether and under what circumstances the Alien Tort Statute, 28 U.S.C. §1350, allows courts to recognize a cause of action for violations of the law of nations occurring within the territory of a sovereign other than the United States.”

Kiobel involves residents of Nigeria who claim that between 1992 and 1995, Dutch, British, and Nigerian corporate oil companies helped the Nigerian government violently suppress a grassroots human rights and environmental justice movement that was protesting against Shell operations in the region. The plaintiffs claim that the “Nigerian military, aided and abetted by [the defendant corporations], engaged in a widespread and systemic campaign of torture, extrajudicial executions, prolonged arbitrary detention, and indiscriminate killings” in violation of international law.

The Second Circuit, 621 F.3d 111 (2d. Cir. 2010), found that the plaintiffs lacked subject matter jurisdiction under the ATS because they failed to allege violations of the law of nations. The court reasoned that the ATS conferred subject matter jurisdiction over a limited number of offenses defined by customary international law. It then examined customary international law and concluded that it had rejected corporate liability for international crimes and that no international tribunal had ever held a corporation liable for a violation of the law of nations. The Appellate Court thus concluded that claims against corporations failed to allege a violation of the law of nations, and therefore were not within the jurisdiction provided by the ATS.

Even before the Supreme Court ordered its expansion, Kiobel was regarded as having greater implications than simply defining who could be sued. Several commentators linked Kiobel to Citizens United, with one NY Times opinion piece claiming the decisions have triggered a “wave of outrage” from those who see them as a signal that “corporations have extensive rights but few responsibilities under American law.” Harvard Law School professor Noah Feldman opined that “[i]f corporations are people for the purpose of constitutional rights like free speech – as per the Citizens United decision – they ought to be treated as people when it comes to responsibilities as well.”

At least one observer of the February 28 oral argument concluded that the defendant corporations would likely prevail, noting that the plaintiffs appeared to have little success convincing the justices that domestic law, rather than international law, should control the question of who could be sued under the ATS. However, the oral argument also revealed that some justices felt uncomfortable hearing a case like Kiobel in U.S. courts at all. Justice Samuel Alito pressed counsel for the plaintiffs on whether any other country would allow a case where there was no connection between the events and the country, and where none of its citizens were parties. Chief Justice John G. Roberts, Jr. questioned whether allowing the suit at all might not contravene international law, given that no other country allows such suits. Later, Alito asked “what business does a case like that have in the courts of the United States?” and explicitly questioned whether there was a constitutional basis for hearing such cases.

The broader question of using the ATS to litigate human rights abuses committed abroad was directly raised in a November 2011 Supreme Court petition involving an ATS lawsuit against a corporation, Rio Tinto PLC v. Sarei. A ruling in Kiobel that corporations cannot be sued under the ATS would mean that the Court might have to address Rio Tinto in the same way, rather than reaching the broader question. By expanding Kiobel, the Court can consider the broader question, and perhaps avoid the question of corporate liability.

The outcome of the newly-expanded Kiobel case could impact the way the United States responds to international human rights abuses. Beyond the legal questions, it is worth considering how preserving or ending the practice of hearing human rights cases in U.S. courts relates to larger political and national security questions. How does the availability of a U.S. forum for international human rights cases relate to the United States’ role as a major global power or to its active involvement in state affairs worldwide? How is providing a forum for these cases different than engaging in other forms of involvement? Does it benefit our national security to provide a courtroom to litigate these abuses? Are there ways to eliminate potential drawbacks without ending all such litigation? Kiobel provides an opportunity to reassess the ways that these cases fit into the current political and national security position of the United States.

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Legitimacy & the Limits of Command in Reformed Military Commissions

Brig. Gen. Mark Martins, Chief Prosecutor, US Military Commissions
Tuesday 4/3, 4 PM
Harvard Law School, Langdell Hall, Vorenberg Classroom (Langdell North)

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The Law and Policy of Covert Operations: Current & Future Challenges

Friday, April 6, 2012
11:30pm – 6:30pm
Wasserstein Hall, Milstein East Rooms A/B (located on the second floor)

11:30: Lunch Provided

12:00-12:15: Opening Remarks by Dean Minow

12:15-1:00: Opening Discussion – “Should the U.S. Take First-Strike in Cyberspace off the Table?”

• Mr. Herb Lin (National Academies)
• Prof. Chris Demchak (US Naval War College)

1:30-3:00: Panel: Future of Covert Operations: Domestic Law & Policy

• COL Renn Gade (SOCOM)
• Prof. Robert Chesney (UTexas)
• Prof. William Banks (Syracuse)
• Andru Wall (Alston Bird, former USN)
• Moderated by Mr. Juan Zarate (CSIS, former NSC)

3:00-3:30: Coffee Break

3:30-5:00: – Panel: International Law & Covert Operations

• Brig. Gen. (Sel) Richard Gross (CJCS)
• Prof. Oona Hathaway (Yale)
• Eric Greenwald (CyberCom)
• Prof. Ken Anderson (American University – Washington)
• Moderated by Michael J. Glennon (Tufts)

5:30-6:30pm – Keynote Address by Dana Priest (Washington Post)

The recent escalation between Israel and Palestinian militants has showcased the effectiveness of the Iron Dome system, which displayed an impressive intercept rate of nearly 80% during the weekend of March 9-12, 2012. This display of technological prowess offers the one million Israelis who live within firing range of the Gaza Strip a measure of security and will allow the Israeli government to focus its efforts on dealing with the threat posed by Iran’s nuclear ambitions.

The Problem: Thousands Of Rockets Launched Into Israel By Gaza-Based Palestinian Terrorists

Nearly forty years after winning the territory from Egypt in the 1967 Six-Day War, Israel completely withdrew both its military and civilian presence from Gaza in 2005, with the hope of spurring the peace process. Those dreams of peace were to remain just that, as over 9,000 rockets and mortar shells have been fired into Israel from neighboring Gaza since 2005, according to a report by the Israel Security Agency (also known as the Shin-Bet).

As a map prepared by the Israel Defense Forces (IDF) Spokesperson’s Unit shows, crude mortar shells have a short range of about six miles, while larger and more sophisticated Grad missiles can reach up to 30 miles, well into Israel’s territory. Be’er Sheva, Ashqelon, and Ashdod are the three largest cities within the zone of fire. According to IDF estimates, about one million Israelis (out of a total population of 7.5 million) live within range of Palestinian projectile fire.

These rocket attacks constitute terrorism directed against Israeli civilians, having killed and maimed Israeli civilians. According to the Israeli human rights group B’Tselem, Palestinian projectile fire killed nineteen Israelis (four of whom were minors) between 2004 and 2011. Even those unaffected physically are liable to suffer from psychological effects such as depression and post-traumatic stress disorder. The most recent salvos of rocket fire have largely been launched by the terror group Islamic Jihad, believed to be supported by Iran.

Politically, Palestinian rocket fire forces Israel into the strategic bind of choosing between the lesser of two evils: a moderate response of precision strikes against terror cells that may be perceived domestically as soft on terror, or launching a broader escalation at great cost in terms of military resources and diplomatic legitimacy. A similar political need to act in late 2008 prompted Israel’s leadership to launch Operation Cast Lead, an air, ground, and naval campaign against militants in the Gaza Strip.

In military terms, Operation Cast Lead was a success, as the frequency of Palestinian rocket fire decreased dramatically, by as much as 90% according to the Israel Security Agency.  However, Israel paid a heavy diplomatic price for this victory. The IDF asserts that 1,166 Palestinians died during the operation, of whom 709 were terror operatives, while B’Tselem claims that 1,390 Palestinians were killed in the Gaza Strip, of whom more than half (759) “did not take part in hostilities.”

The high body count led to a widely-publicized UN report by the South African Jewish jurist Richard Goldstone, which condemned both sides but singled out Israel’s actions as a “deliberately disproportionate attack designed to punish, humiliate and terrorize a civilian population. . . .” Additionally, the Gaza operation was the beginning of a marked deterioration in relations between Turkey and Israel, with spillover effects in Egypt. A correspondent for the New York Times called the aftermath of Operation Cast Lead Israel’s “worst diplomatic crisis in two decades.”

In short, the threat of Palestinian rockets put Israel in the unenviable position of choosing between military action to defend its population from rocket attacks or exercising self-restraint to maintain its international legitimacy.

The Solution: A First-Of-Its Kind Short-Range Missile Defense System

In 2007, Israeli Minister of Defense Amir Peretz selected the Iron Dome from competing short-range missile defense systems to answer the threat of rockets launched at southern Israel. The Israeli company Rafael was charged with developing the Iron Dome, which consists of three components: detection and tracking radar, a battle management center, and the interceptor launch system.

When a launch is detected, Iron Dome calculates the projectile’s trajectory and analyzes the threat level. Should a threat be deemed critical, Iron Dome then launches an interceptor. By disregarding rockets not headed for populated areas, the system avoids unnecessary interceptions. The system was first deployed in early 2011 and scored its first successful interception on April 7, 2011, marking the first time in history that Israel had successfully shot down a Palestinian rocket mid-flight.

Recent events in the Gaza Strip have highlighted the Iron Dome’s prowess in intercepting short-range projectiles. The targeted killing of a terror leader in Gaza on March 9, 2012 led to a surge in the number of rockets launched at Israel. According to the IDF, over 300 rockets were launched from Gaza from March 9 through March 13, of which over 165 landed on Israeli soil. Throughout the bulk of this period, the Iron Dome system boasted a successful intercept rate of 78.2%, having attempted sixty-nine interceptions and succeeded in fifty-six of them.

The Result: Greater Israeli Flexibility In Addressing The Iranian Nuclear Threat

Although the Iron Dome is not perfect (it is not as effective in fending off multiple rocket attacks and has suffered from technical failures), the system’s success could prove a game-changer for Israel, which is currently marshalling its diplomatic energies to stop Iran’s nuclear ambitions. In this context, Israel does not want its international focus on the Iranian nuclear program distracted by a large-scale Israeli operation in Gaza like Cast Lead. In fact, a colonel in the Israeli Air Force has stated that the Iron Dome has prevented another potentially bloody Gaza offensive on the scale of Operation Cast Lead.

Without the Iron Dome’s purely defensive capabilities, Israel might be forced to take offensive action against militants in Gaza in response to domestic pressure to act. This would likely lead to global protests like those during Cast Lead, shifting the global debate on Israel from Iran’s nuclear ambitions to the Palestinians. Thus the Israeli diplomatic campaign against Iran (including high-profile interviews with its Prime Minister and its Ambassador to the United States) would be replaced by a defensive diplomatic effort that would consume all the ink and airtime allotted to Israel in the press while monopolizing the Middle East agenda among foreign policy makers.

Given that prominent world leaders are opposed to an Israeli military strike on Iran, Israel’s current diplomatic efforts will play a critical role in advancing both diplomatic and military responses to the Iranian nuclear program. For example, Israeli lobbying in the wake of a International Atomic Energy Agency report on the Iranian nuclear program in late 2011 has yielded fruit in the form of stronger sanctions on Iran in section 1245 of the recently-signed National Defense Authorization Act and President Obama’s decision to freeze the U.S. assets of Iran’s central bank. Moreover, a successful unilateral military strike on Iran’s nuclear facilities would, according to some defense experts, seriously strain Israel’s capabilities, making international cooperation essential to a military resolution as well should diplomacy fail.

Against this strategic landscape, the Iron Dome offers more than the tangible gain of intercepting an impressive majority of rockets headed for Israeli cities and providing a measure of security for the country’s southern communities. By reducing domestic political pressure on the government in a manner that does not inflame international tensions, Iron Dome strengthens Israel’s diplomatic position to address what it perceives as the even greater threat of a nuclear Iran.

The rationale for these proposals is based on emerging fiscal constraints and rapidly growing military health care and retirement costs. The cost of military health care has risen from $17.8 billion in 2000 to $43.5 billion in 2010, a growth rate about twice that of economy-wide medical inflation. As a share of the Defense Department budget, military health care costs went from 4.5 cents of every dollar spent by the Pentagon in 2000 to 6.1 cents in 2010. The TRICARE-eligible beneficiary population has grown 43% in the last decade, due to demographic trends, an expansion of permitted access to the program, and more generous eligibility terms. The TRICARE range of services and benefits has expanded and there has been a marked increase in the proportion of care that fell in the most expensive range.

Likewise, military retirement costs have grown substantially, albeit not as fast as health care allocations. This has generated proposals to revamp the current system by, on the one hand, providing some benefits to those who leave the force before becoming retirement eligible, and on the other, doing away with the current system that permits retiring after 20 years of service at half one’s basic pay.

The proposals have generated outcries on the part of many veterans groups and service associations, such as the MOAA, the VFW, and USAA. They regard these proposals as nothing less than a “breach of faith”, a reneging of promises made over decades to those who “have risked and sacrificed more than their fair share”. Others note, correctly, that the changes will impact efforts to continue to recruit and maintain an all-volunteer force. “Would you stay with an insurance company that raised your premiums by 345% in five years?”, one critic noted. They also charge that similar reductions on the DOD civilian force are not being requested.

Those who believe these proposals represent a breach of promises and will have a negative impact on retention and recruitment are right. Others have correctly pointed out that service in the military is unique and should not and cannot be compared to government service in general. For example, many – like myself – served multiple combat tours, separated from our families for a year at a time, and received no extra benefits. No one in the military has ever received overtime, and none is able to jam overtime, sick leave, and other forms of compensation into a retirement that sometimes exceeds their last year’s salary! The strain that recent events have shown our soldiers to be under – after four, five, or more deployments to the warzone – is unique, while compensation lags far behind their public sector counterparts.

Those who believe, conversely, that current fiscal constraints impose the necessity of reducing military health care costs and revamping the early retirement system are also correct. Unless such reductions are instituted, the Services will be unable to field the forces in numbers required to implement the nation’s strategic imperatives, nor buy the weapons systems necessary to insure our servicemen and women have the best equipment to conduct combat operations.

The administration’s proposals for retirement and health care revision deserve serious consideration. Both systems are growing more expensive and costs will accelerate in the near future. This is especially the case as the costs represented by the wounded, mentally as well as physically, of the current wars begin to impact the defense budget more. And that is an area that cannot — and should not — be compromised in any manner! Yes, cut the health benefits and retirement costs of those of us who are retired, but do not diminish the care and commitment to those wounded in the campaigns in the War on Terror.

However — and this is a big however — none of these revisions and reductions should be implemented unless they are part and parcel of a national commitment to trim back entitlements across the board — Medicare, Medicaid, Social Security, welfare programs, etc. Those who served our country should be full participants in the imperative to reign in the nation’s growing debt and annual deficits. They should not be singled out nor left to bear this burden alone.

The current fiscal crisis mandates a national belt-tightening and sharing of the sacrifices needed to bring fiscal sanity to this country.

Anybody with me?

Image courtesy of the U.S. Army.

The status of Jerusalem is one of the most hotly contested issues in the Israeli-Palestinian conflict. Just last week, at a conference in Qatar, Palestinian Authority President Mahmoud Abbas accused Israel of “trying to erase the Arab, Muslim, and Christian nature” of the city as part of a broader campaign to “Judaize Jerusalem and position it as the capital of the occupation state.” Israeli Prime Minister Benjamin Netanyahu quickly shot back, releasing a statement that called on the Palestinian leadership to “stop denying the past” and accept that “Jerusalem is the eternal capital of the Jewish people.”

Since Israel’s founding in 1948, the United States’ policy has been to recognize no state as having sovereignty over Jerusalem. From Truman to Obama, every president has concluded that such a move would fatally impair America’s ability to serve as an honest broker in the Middle East peace process.

On several occasions, however, Congress has attempted to frustrate the president’s ability to implement this policy. In 1984, Congress considered, but ultimately failed to enact, a law that would have required the Reagan administration to move the U.S. Embassy in Israel from Tel Aviv to Jerusalem. In 1995, the 104^th Congress succeeded where the 98^th Congress had failed and passed the Jerusalem Embassy Act, which proclaims that the “[p]olicy of the United States” is that “Jerusalem should be recognized as the capital of the State of Israel.” To this end, the Act makes a portion of the State Department’s budget contingent on moving the embassy to Jerusalem. Perhaps aware of the unintended ramifications this provision might pose for U.S. foreign policy in the Middle East, the Act contains a waiver provision that allows the president to delay the funding restriction for six months, should he deem it necessary to “protect the national security interests of the United States.” Not surprisingly, Presidents Bush, Clinton, and Obama have renewed the waiver every six months since the Jerusalem Embassy Act was enacted.

Congress’ latest attempt to alter the United States’ recognition policy came in 2002 with the passage of section 214 of the Foreign Relations Authorization Act, Fiscal Year 2003 (“FRAA”), entitled “United States Policy with Respect to Jerusalem as the Capital of Israel.” Like its predecessors, this section “urges the President…to immediately begin the process of relocating the United States Embassy in Israel to Jerusalem.” It also prohibits the appropriation of any funds “for the publication of any official government document which lists countries and their capital cities unless the publication identifies Jerusalem as the capital of Israel.” Ironically, the provision that would ultimately prove the most controversial is the most seemingly innocuous. Part (d) of section 214 states:

For purposes of the registration of birth, certification of nationality, or issuance of a passport of a United States citizen born in the city of Jerusalem, the Secretary [of State] shall, upon the request of the citizen or the citizen’s legal guardian, record the place of birth as Israel.

In other words, the parents of an American citizen born in Jerusalem may request that “Israel” be recorded as the place of birth on the child’s passport, even though the official policy of the United States for the past six decades has been to refuse to recognize Israel’s sovereignty over the city.

Although President Bush signed the FRAA into law, he refused to implement section 214 on the grounds that it “impermissibly interfere[d] with the President’s constitutional authority to formulate the position of the United States, speak for the Nation in international affairs, and determine the terms on which recognition is given to foreign states.”

Shortly after Congress enacted the FRAA, Menachem Zivotovsky was born to an American-Jewish couple living in Jerusalem. When his mother applied for his passport, she exercised her right under section 214(d) to request that his place of birth be recorded as “Jerusalem, Israel.” When embassy officials told Zivotovsky’s mother that State Department policy prohibited them from complying with her request, she filed a lawsuit on her son’s behalf against the Secretary of State seeking a court order requiring the State Department to accede to her request.

The case eventually reached the Supreme Court, which heard oral argument last November. At first glance, the question presented in M.B.Z. v. Clinton may seem modest in scope: Are the fifty odd thousand Americans born in Jerusalem entitled to have “Israel” recorded as the place of birth in their passports, as Congress says they are? The implications of this question, however, touch directly upon one of the most contentious issues in constitutional law, namely, which branch of the federal government – the executive or the legislature – has the power to control U.S. foreign policy. Does the Constitution assign the power to “speak for the Nation in international affairs” exclusively to the executive, as President Bush claimed in the statement he released when signing the FRAA into law, or does Congress share in this power?

The Court asked the parties to brief two issues. The first asks whether the Court even has jurisdiction to hear the case, or whether a rule derived from past precedent, known as the “Political Question Doctrine,” prevents it from adjudicating the dispute. This rule prevents, in one instance, judicial review over the exercise of powers specifically assigned by the Constitution to one of the political branches.

The Obama Administration – which is defending the FRAA before the Court – argues that because the Constitution’s “Reception Clause” assigns to the president alone the power to “receive Ambassadors and other ministers,” this necessarily includes the power to determine which ambassadors to receive, and thus, which states to recognize. Before the president can recognize a particular state, the argument goes, he must first determine where its boundaries lie. It is pursuant to this constitutional provision that presidents have refused to recognize Israeli sovereignty over Jerusalem for more than 60 years. The Obama Administration contends that, because Zivotovsky’s lawsuit challenges a decision the Constitution places solely within the discretion of the president, pursuant to the “Political Question Doctrine” the suit presents an issue over which federal courts lack jurisdiction.

At oral argument, the justices appeared reticent to endorse this position. Justice Ruth Bader Ginsberg noted that if the Court were to accept the government’s “political question” argument, it would also resolve a much larger constitutional question by default. That question, which comprises the second issue the Court asked the parties to brief, is whether section 214 of the FRAA impermissibly infringes on the President’s power to recognize sovereigns. Put another way, if Congress does in fact share the “recognition power” with the President, how is that power allocated between each branch? At oral argument, Justice Ginsberg worried that, “if the Court decides that the Constitution commits this authority exclusively to the President,” which it would have to in order to rule that the case presents a non-justiciable political question, “then it’s all over. That’s the merits of the case….” Hence, by ruling that it lacks the ability to hear the case, the Court would effectively hold that the Reception Clause establishes a plenary power with respect to anything the President believes touches on recognition. As Justice Sotomayor observed, “the outcome [of such a ruling] is that the President is saying that he’s entitled to ignore the Congress.” “I don’t know what kind of message that sends,” she went on, “but it’s a little unsettling that…we’re not going to determine whether this law is constitutional or unconstitutional.”

Solicitor General Donald Verrilli, who appeared before the Court for the Obama Administration, suggested that even if the Court did reach the second issue and go on to determine the scope of the President’s recognition power, there “may not be very much of a difference” in the outcome. Were the Court to reject the Government’s contention that the Reception Clause provides a constitutional basis for the President’s plenary recognition power (and thus for invoking the “Political Question Doctrine”), Verrilli argued that, in the alternative, it should look to the “gloss” on executive power left by centuries of historical practice. “[For] 220-plus years…[there is not] a single example of Congress actually exercising the power, and I think in addition to the history, there are very good functional reasons why that is so,” he said.

Perhaps most significantly, Verilli argued that while the Government does believe that the Reception Clause is the source of the President’s exclusive and unqualified recognition power, the President would still possess a plenary recognition power even if the Reception Clause were not in the Constitution. The implication is that the recognition power is an inherent plenary executive power, one that (1) inheres in the Office of the President regardless of whether it has been explicitly conferred by the Constitution and (2) cannot be checked by Congress or the courts. As one Court-watcher observed: “This portion of the Solicitor General’s argument is fascinating because he appeared to resurrect the theory of inherent plenary executive powers that had been advanced by the previous administration.”

While the implications of the Supreme Court’s decision regarding the allocation of foreign policy powers between the President and Congress will largely depend on the nature of its holding, one thing is certain: should the Court accept either of the Obama Administration’s arguments, it would deal a significant victory to the executive in the ongoing struggle with Congress to control U.S. foreign policy.

Image courtesy of SOURCE.