Federal courts slowly are becoming a new battlefield in the war on terror, with combatants setting aside traditional weapons and arming themselves instead with domestic and international laws.
Responding to this phenomenon, the inaugural meeting of The Lawfare Project convened last week in New York to discuss using law as a weapon.
Maj. Gen. Charles Dunlap coined the term lawfare, identifying it as: "a cynical manipulation of the rule of law and the humanitarian values it represents. Rather than seeking battlefield victories, per se, challengers try to destroy the will to fight by undermining the public support that is indispensable when democracies like the U.S. conduct military interventions."
Dunlap recognized some time ago, as French Supreme Court Attorney Francois-Henri Briard said at the conference, "The law may be a weapon, and litigation a battlefield."
Diverse panels of experts from around the world focused on the ever-growing threat from Islamists' exploitation of international and domestic legal systems to intimidate and silence their critics. In particular the conference focused on manipulating the legal system for three strategic purposes:
- To thwart free speech on issues of national security and public concern.
- To delegitimize and diminish the sovereignty of democratic states.
- To inhibit the right and ability of democracies to defend themselves against terrorism.
Participants provided context dating to 400 B.C., when Chinese Gen. Sun Tzu wrote in “The Art of War” that, in fighting a stronger foe, "success begins by seizing something which your opponents hold dear; then he will be amenable to your will."
As the panel discussions demonstrated, America and the West hold dear the rule of law, so our enemies have met with some success in attempting to hijack Western legal and moral principles to turn international media and public opinion against us.
Think being the victim of a frivolous lawsuit simply for speaking out against terrorism sounds crazy? Think again. Discussing this issue on radio, Mahdi Bray, executive director of the Muslim American Society Freedom Foundation, explained: "Folks, that's got to be the next horizon for our community. In order to deal with these haters, these bashers, these Islamophobes, we've got to be willing to spend our money in a court of law. And not necessarily because we don't look for money, but we need to be able to say we need to spend our money and make you spend your money, and you're gonna stop doing this to us."
In 2005, the Islamic Society of Boston filed a suit charging defamation against more than a dozen defendants, including the Boston Herald, Fox 25 News, and me. The society targeted the defendants for speaking about the society's connections to radical Islam and for raising questions about the construction of its Saudi-funded mosque in Boston. Two years after instituting the lawsuit, and immediately following the discovery phase of the litigation, the Islamic group dropped its case.
Similarly, in 2007, KinderUSA sued terrorism analyst Matthew Levitt, claiming it was libeled in Levitt's book, “Hamas: Politics, Charity and Terrorism in the Service of Jihad.”In the book, Levitt included KinderUSA among "other American-based charities [which] continue to fund Hamas" after the Holy Land Foundation closed its doors.
KinderUSA dropped the case four months later after Levitt and publisher Yale University Press filed motions invoking California's anti-SLAPP provisions — claiming the litigation was intended more to squelch the book than to produce any courtroom damages.
The Islamist movement, as Brooke Goldstein and Aaron Eitan Meyer explained in an article about such lawfare, "is made up of two wings — that which operates violently, propagating suicide-homicide bombing and other terrorist activities, and that which operates lawfully, conducting a 'soft jihad' within our media, government and court systems, through Shari'a banking and within our school system."
These groups work together to punish critics of Islam and muzzle speech considered blasphemous toward the Prophet Muhammad. “While the violent arm of the Islamist movement attempts to silence speech by murdering film directors such as Theo Van Gogh and by forcing thinkers such as Wafa Sultan into hiding out of fear for her life, the lawful arm is skillfully maneuvering within Western court systems, hiring lawyers and suing to silence its critics," according to Goldstein and Meyer.
These lawsuits are being used as weapons of war against counterterrorism experts, law enforcement personnel, politicians, and anyone working to disseminate information on Islamist terrorism and its sources of financing. The suits often are predatory, filed without a serious expectation of winning, and undertaken as a means to intimidate, demoralize, and bankrupt defendants.
In the face of frivolous suits intended to stymie debate, panelists said that those who truly believe in the application of the rule of law to achieve justice must defend themselves against the allegations. Instead of just playing defense, though, those targeted must filecivil suits against the supporters of terrorist groups to ensure that they are as bankrupt as the ideologies they support.
The war on terrorism is virtually without borders and must be fought accordingly. Although the United States has devoted tremendous federal resources to shutting down the support structure of terrorist groups, private citizens have recognized that more can still be done. They have taken up arms against the support structure of terrorist groups, using the Anti-Terrorism Act of 1990 to hit these white-collar terrorists where it hurts the most: their checkbooks.
In May 2005, the parents of David Boim, a 17-year-old New Yorker who was killed in a Hamas terrorist attack in the West Bank, sued U.S.-based organizations and individuals who provided logistical and financial support to Hamas. In December 2008, a federal appeals court ruling upheld the $156 million judgment against three of the charities.
Similarly, in 2005, victims of Hamas suicide bombings sued National Westminster, a British-based bank, seeking to recover money from Hamas linked accounts.
As Israeli U.N. Ambassador Gabriela Shalev explained during the conference, "Those engaging in lawfare are misusing the laws of war and the open-mindedness of democracies" to undermine the rule of law and diminish legitimate grievances.
Rather than sit idly by and allow this to happen, the conference participants proposed a call for action: Fight back.
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