Assessing Post-9/11 "Lawfare" and the Role of Lawyers in Counterterrorism

By JEFF BREINHOLT

Thursday, Apr. 27, 2006

What have the years since 9/11 shown about the role of lawyers in American counterterrorism efforts?

In particular, to what extent are lawyers currently involved in Executive Branch decisions - and to what extent should they be?

The Menu of Counterterrorism Options and the Goal of "Synchronicity"

The United States enjoys a multi-faceted counterterrorism arsenal: While there are frequent discussions of a "grand strategy" to deal with the threat of international terrorism, there is a general consensus that there is no single silver bullet. Instead, our counterterrorism infrastructure should be viewed as a series of shiny bullets whose gleam must be guarded by their owners, lest they lose their viability.

These bullets, or tools, run the gamut, from military action, diplomacy, law enforcement and economic sanctions, to intelligence and covert action. In the case of each tool, lawyers are involved to some extent, because legal limitations apply, and because there is a tradition that guides the application of each tool in particular circumstances. How should lawyers be involved in these decisions, and to what extent? The answer depends on the particular tool, and its tradition.

In a multi-tool arsenal, the goal should be synchronicity: the government personnel involved in each counterterrorism tool should be constantly looking for opportunities to push it, and to make a favorable recommendation to operational decisionmakers. The choice of which counterterrorism tool to apply at a particular challenge should be the result of a healthy competition among various masters of the tools. Counterterrorism decisionmakers are ill-served if they do not consider the widest range of options, with arguments made for each. Synchronicity is elusive when there is an overreliance on a particular tool, because other government components are not being sufficiently aggressive. Lack of synchronicity means lost opportunities.

So we have a need for competition and aggressiveness. Enter the lawyers.

The Concept of "Lawfare": Using Legal Institutions to Achieve Military Objectives

Of course, the use of lawyers in connection with warfare is not always the right choice. Consider, for example, the concept of "lawfare," which has been addressed in the writings of Charles J. Dunlap, Jr., Michael Newton, Richard Betts, John Fonte, Richard Rivkin, and Lee Casey, among others.

"Lawfare" is defined as the use of legal institutions to achieve military objectives. Unfortunately, "lawfare" has gained a negative connotation because lawyers' intervention in military planning can introduce inefficiency, and interfere with the accomplishment of other worthy objectives.

For example, the NATO bombing campaign in Kosovo apparently suffered from some inefficiency, due to the fact that NATO lawyers insisted on being involved in tactical operational decisions. (Indeed, this inefficiency may have been one of the reasons the Bush Administration decided that the United States would act alone in Afghanistan.)

Was NATO lawyers' involvement necessary? Unfortunately, it probably was, since other lawyers were primed to sue at the first sign of a military mistake. For instance, after coalition forces bombed the state-run Serbian television station in Belgrade in April 1999, the incident was the subject of a review by the International Criminal Tribunal for the Former Yugoslavia and the European Court of Human Rights.

In the end, the choice to bomb was the right one: The facility was being used for military communications. In addition, the station manager was ultimately convicted of murder for locking the station employees in the building to serve as unwilling human shields.

When the U.S. bombing campaign in Afghanistan began in October 2001, international lawyers associated with human rights organizations sought to limit the operation by complaining about collateral damage.

In the early days of the Iraq War, there were reports of Westerners being recruited to serve as human shields -- an effort presumably designed to transform military operations into violations of the Geneva Convention and the Law of Armed Conflict (LOAC).

Currently, American lawyers are involved in litigation against the United States government for President Clinton's decision in 1998 to bomb a Sudanese pharmaceutical factory believed to be associated with Al Qaeda.

Should the Military or the Lawyers Take Over When a Terrorist Is Captured?

From these examples, one might conclude that lawyers are not constructive players in counterterrorism and that, for the sake of expedience, our national security operators should oppose their participation. I believe that this attitude misses the mark, however -- as it overlooks the role of attorneys in the counterterrorism tool over which, by necessity, we are the masters: domestic law enforcement.

Take, for example, the operational choices that flow from a particular counterterrorism scenario: we succeed in capturing a terrorist alive. Does - and should -- he fall within military or civilian jurisdiction?

Many argue that a leading mistake of the 1990s was to treat international terrorism as "merely" a law enforcement matter, and thus to largely ignore the threat of Al Qaeda, despite what amounted to its declaration of war against the United States.

Accordingly, one might be forgiven for thinking that the role of lawyers should be minimized when a terrorist is captured, if our goal is to prevent terrorism. After all, the military tools seem more expedient than civilian law enforcement. We have been involved in two ground wars since 9/11, so these tools are prominent in our minds.

Moreover, efforts to apply criminal justice concepts to the terrorist threat have been somewhat clumsy - most notably, in the prosecution of self-acknowledged Al Qaeda member Zacarias Moussaoui, whose trial resulted in complex disclosure issues that required the U.S. Court of Appeals for the Fourth Circuit to resolve.

The Cases Where Lawyers Must Come Into Play: Domestic Terrorist Plots, and Cases Involving Americans

There is one scenario, however, where lawyers will always play a part: the disruption of an international terrorist plot hatched and advanced on American soil, proceeding with the help of U.S. persons physically located within our borders, or involving an American citizen.

Despite the fact that the United States has designated a couple of Americans, such as Jose Padilla, as enemy combatants, this is not likely to be the tool of choice. Even John Walker Lindh, an American captured on the battlefield in Afghanistan, was handled by U.S. criminal justice system, and this is where Padilla is now.

The military option in this situation is politically unpalatable, and will remain unavailable. The situation cries out for lawyers -- not merely prosecutors, but also defense lawyers, whose role here is constitutionally-mandated.

If the criminal justice system is occasionally a clumsy tool when applied to the prevention of terrorism, the answer is to reform it so it is more effective, rather that to avoid it together. If the domestic law enforcement option is not effectively pushed, it will atrophy, resulting in decisionmakers' not enjoying the benefit of the full range of options. Synchronicity will be lost.

More ominously, if domestic law enforcement options are not pursued, we will not have any options at all in those situations where criminal (and immigration) enforcement actions are really the only avenue.

This threat, more than anything else, should result in the full appreciation of the value of the lawyers in American counterterrorism. Indeed, I believe we need more of them. In no other counterterrorism tool is the experience of the past better captured, and used by current practitioners. Law is, quite literally, an exercise in trial and error. Over time, I think it will become more and more clear that there is a good form of "lawfare."

Of course, lawyer-bashing can and will continue, and ought to, where and when we deserve it. The challenge for our profession is to understand our responsibility, and to be guided by the history and concepts established by our predecessors. This, after all, is the currency of judicial decision-making. We also must be good at something that comes naturally to people in our profession: picking ourselves up, if we lose, and going at it again.

Interested readers can find more on these topics in the following articles recommended, and used as sources, by the author: Col. Charles J. Dunlap, Jr., ASAF, "The Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts"; "Legal Obligation and Training of Special Operations Forces", John F. Kennedy Special Warfare Center and School; Richard K. Betts, "Compromised Command," Foreign Affairs, July/August 2001, 126; John Fonte, "Democracy's Trojan Horse," The National Interest, Summer 2004, 117; Richard B. Rivkin Jr. And Lee A. Casey, "The Rocky Shoals of International Law," The National Interest, Winter 2000/01, 35; Francis Fukuyama, "The Paradox of International Action," The American Interest (Spring 2006), 7, 15; Michael Chertoff, "Why Is This Ball in Our Court?" Wall Street Journal, June 19, 2004; Robert M. Chesney, "The Sleeper Cell Scenario: Terrorism Support Laws and the Demands of Prevention," 42 Harvard Journal on Legislation, No. 1 (Winter 2005). - Ed.


Jeff Breinholt, a member of the State Bar of California, is Deputy Chief of the Counterterrorism Section, U.S. Department of Justice and a frequent author and lecturer on law enforcement and intelligence matters. The views expressed in this column do not necessary reflect those of his employer. He can be reached at [email protected]

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