Offensive Lawfare and the Current Conflict

By  Colonel Mark W. Holzer * —

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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.