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Waging Lawfare

Since 9/11, the Bush administration has conjured many enemies for the United States: Brutal dictators ensconced in the desert with their Weapons of Mass Destruction, airplane passengers who carry on baby-food and mascara to their flights. And now salivating hordes of foreign lawyers and judges.

  • Aziz Huq
Published: November 23, 2006

Cross posted from TomPaine

Since 9/11, the Bush administration has conjured many enemies for the United States: Brutal dictators ensconced in the desert with their Weapons of Mass Destruction, airplane passengers who carry on baby-food and mascara to their flights. And now salivating hordes of foreign lawyers and judges. 

A salvo against international law came last week from Department of Homeland Security Chief Michael Chertoff. Speaking at the annual conference of the Federalist Society, Chertoff praised “judicial modesty,” of the kind he claimed that conservatives on the Supreme Court demonstrate. He criticized international lawyers and judges who have “increasingly advocated for a broad vision of legal activism,” for example by protesting American data-gathering techniques that violate European law, or complaining about illegal American incursions into other nations’ sovereign territory (anyone remember Nicaragua?)

Chertoff’s volley against international law and those who make it, is not new, not intellectually coherent, and not at all an aid to the nation’s true security. Rather than an effective response to real dangers, Chertoff’s unwarranted assault on international legal institutions is a dangerous distraction.

The attack on international law is not solely a product of the post-9/11 world. Early in his tenure, President Bush withdrew the United States’ signature of the Rome Statute for the International Criminal Court. And in December 2001, in a move contemplated long before the 9/11 attacks, he unilaterally terminated the nation’s Anti-Ballistic Missile Treaty with Russia.

In the terrorism context, resistance to international law has taken in a new, more sinister meaning for the administration: Those who resort to law, in the present executive branch’s eyes, have engaged in a new form of warfare. 

The Defense Department, in its March 2005 National Defense Strategy for the United States of America, cautioned against foes who use a “strategy of the weak” against the United States, such as “using international fora, judicial processes, and terrorism.” The Defense Department’s logic appeared simple: We dominate the world militarily. Anyone who decides to confront us in some other way is not playing fair. Ergo, they are violating the rules.  

Two years before that, the Council on Foreign Relations coined the phrase “lawfare” to describe this logic. “Lawfare,” opined CFR, is the “strategy of using or misusing law as a substitute for traditional military means to achieve military objectives.” Under this logic, individuals whose privacy has been invaded, or who have been detained despite being innocent, and then seek redress in the courts are committing acts of “lawfare.”

Tarring domestic opponents with a brush of treason is nothing new, of course. President John Adams did it with the Alien and Sedition Acts of 1798. But this was the first time the use of judicial instruments had been put on par with the sneak attacks of the Baghdad sniper or the Nazi saboteur.

The attack on international law is also incoherent-in several different ways.

The United States, rather famously, has no objection to international law-when it controls that law. Perhaps the most effective international legal institution (in terms simply of getting things done) is the World Trade Organization. Yet U.S. Trade Representative Susan Schwab made no complaints about the nettlesome bonds of international law last week when she reasserted American commitment to the Doha round of trade negotiations.

And international law has been vital to American military projects-and American lives-on numerous occasions. After World War II, the United States supported international war crimes trials in Germany and Japan. In Korea and Vietnam, American officials waved the Geneva Conventions to protest the abysmal treatment of American soldiers. And today, the Bush administration has obtained a multinational imprimatur for its occupation of Iraq and its operations in Afghanistan.

Consider too Chertoff’s praise for judicial modesty. This, he claims, involves “deferring to the political branches that represent the will of the people” and a “cautiousness in the use of judicial remedies.” To be sure, these two things are not equivalent. One of the crusades that conservative justices on the Rehnquist Supreme Court successfully pursued was cutting back statutory remedies put in place by Congress after the Civil War for those whose civil rights were violated. (Apparently, Congress’s will counts … unless it happened it have been a Reconstruction-era Congress).

More fundamentally, conservatives are not generally more inclined to respect the views of the people. In a 2001 article appropriately named “Dissing Congress,” law professors Ruth Colker and James Brudney provided a long list of federal statutes conservatives on the Rehnquist Court have invalidated. Judicial activism, these days, is a conservative affliction-and not one that can be justified. 

Finally, the attack on international law is a distraction that ill-serves the nation. It does nothing to remedy the Department of Homeland Security’s manifest-and continuing-failure to deal with the crises of Katrina. It’s hardly a substitute for having an effective and coordinated way of identifying real travel risks-rather than a no-fly list that is replete with erroneous designations and persons designated for anti-war speech . And it certainly does nothing to remedy the “bureaucratic fix” and the “excuses” and “delays” that both Republicans and Democrats on the Homeland Security Subcommittee have long criticized.

Instead, the attack on international law plays well to the intellectual “base” that makes up the Federalist Society. So we should not expect Chertoff’s to be the last such comments-especially as efforts to prosecute former Defense Secretary Donald Rumsfeld ramp up around the world.

Secretary Chertoff began his speech to the Federalist Society by noting that he didn’t often speak to crowds of lawyers in his capacity as DHS chief. Perhaps that’s a shame. Perhaps it would be beneficial if government officials spent more time thinking and discussing the shared roots of this country in a constitution-that is a written law that binds legislatures, a law that is applied by courts. And perhaps they would be reminded that what makes America respected and admired across the world has not been its military might: It has been its proud traditions of constitutional rights and limited government under law. 

Aziz Huq: “Waging Lawfare” (PDF)