Brooke Goldstein: Countering Lawfare

Pat Toensmeier
aviationweek.com
03 January '11

[Editor’s note: An abridged version of this interview appears in Defense Technology International’s January 2011 issue.]

Among the threats directed at Western democracies is lawfare, the manipulation of a legal system for strategic political or military goals, by groups and individuals who seek to build support for their positions through rulings by courts and international bodies. The fallout from lawfare can be wide and damaging, ranging from restrictions on individual speech to disruption of battlefield operations. The Lawfare Project, a New York City legal think tank, monitors and raises awareness about the use of the law as a weapon of war against the West. The organization’s founder and director is Brooke Goldstein, a lawyer with extensive experience in human rights law, and an award-winning filmmaker whose documentary, “The Making of a Martyr,” focused on the recruitment of Palestinian children as suicide bombers. Contributing Editor Pat Toensmeier interviewed Goldstein via e-mail about lawfare and its implications for the U.S., Israel and other target nations.

Lawfare as a concept dates to the 1970s. Why is it now of concern to Western and democratic nations?

Regardless of when lawfare is said to have first emerged (in fact, the manipulation of legal systems to achieve strategic military goals has existed since the birth of international law and the law of armed conflict) there is no doubt that the phenomenon poses an immediate threat to U.S. national security interests, and to the security of liberal democracies at large.

When I say lawfare, I denote the wrongful abuse of Western laws and judicial systems to achieve military or political ends that undermine the principles those systems stand for. I emphasize wrongful because lawfare is an inherently negative undertaking; it consists of the negative exploitation of the law to achieve a purpose other than or contrary to that for which the law was originally enacted.

Lawfare is not something that persons engage in the pursuit of justice and must be defined as such to have any real meaning, otherwise, we risk diluting the phenomenon and feeding the inability to distinguish between what is the correct application of the law on the one hand and what is lawfare on the other. Because that’s the essence of the issue here, how do we distinguish between that which constitutes a constructive, legitimate legal battle (even if the legal battle is against us and inconvenient) from that which is a counterproductive perversion of the law, which should be allocated no precedent? The delineation is not as simple as some may like to make it; that is, that lawsuits against terrorists are good, and legal actions against the U.S. and Israel are bad. The question is not ‘Who is the target?’ but ‘What is the intention?’ behind the legal action: Is it to pursue justice, to apply the law in the interests of freedom and democracy, or is the intent to undermine the very system of laws being manipulated?

Over the past 15 or so years, we have witnessed a steady increase in lawfare tactics being used largely to achieve three strategic goals. The first—and these are in no particular order—is to silence and punish free speech about issues of national security and public concern, including radical Islam, terrorism and its sources of financing, and to reinstate blasphemy laws especially as applied to Islam and its prophet Mohammad. This is what has been called libel lawfare or Islamist lawfare, which aims to impose Sharia law as a governing legal authority both in Muslim states and in the West and to impede the free flow of public information about the threat of Islamist terrorism, thereby limiting our ability to understand it, and destroy it.

The second goal is to delegitimize the sovereignty of democratic states, largely the U.S. and Israel.

(Read full "Brooke Goldstein: Countering Lawfare")

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