NOVANEWS
Maj. Gen. Charles J. Dunlap
Lawfare is bloodless warfare.
by Philip Giraldi
I have already reported how “lawfare,” which was defined by Air Force Deputy Judge Advocate General Maj. Gen. Charles Dunlap following 9/11, is becoming the new hot button for defenders of Washington’s and Tel Aviv’s foreign policies.
Using the law itself to subvert existing constitutional arrangements and, ironically, to undermine legal restraints has been around for quite a while, having been developed by Nazi jurist Carl Schmitt in the 1930s. In its contemporary American version, lawfare initially was used by progressives to threaten unindicted war criminals and to take the offensive against egregious violations of civil rights, such as at Guantanamo Bay prison. But it has now been adopted by governments and government-supported entities to tie up opponents using lawsuits and other forms of litigation.
Lawfare is bloodless warfare. When it is used by a government or an officially sponsored group, it has two aspects. First, it can be used to expand government prerogatives, making what was illegal legal and indemnifying those government employees who have broken the law. Second, it can serve as a tool to punish those who oppose government policies. Making the illegal legal is what John Yoo and Jay Bybee did in the George W. Bush White House when they issued legal judgments supporting torture. It is also what the Barack Obama administration has been doing in obtaining legal advice in expanding the FBI use of national security letters and in saying that the war against Libya is constitutional. The Obama administration has also protected government employees through granting de facto immunity to torturers by refusing to allow the Justice Department to prosecute them. It has used lawfare extensively to defend itself against criticism and whistle-blowers by citing the state-secrets privilege to stop legal challenges, making government employees essentially free from any accountability.
Sued by Israelis for Terrorism Financing ?
The Israeli government and its American supporters have caught on to the potential of the legal weapon and are increasingly using lawsuits to tie up and punish opponents and critics. The New York State Supreme Court recently ruled that a lawsuit filed by a group of 84 Israelis against the Bank of China can proceed in U.S. courts even though none of the plaintiffs are U.S. citizens and the alleged crime took place outside the United States. The plaintiffs, who claim to be victims of terrorist bombings and rocket attacks carried out by Islamic Jihad and Hamas in 2006 and 2007, are asserting that the Bank of China enabled the attacks by providing wire-transfer services to both groups. The plaintiffs’ lawyer argued successfully that anyone can sue in American courts against any organization that the State Department has labeled as “terrorist.”
The law was also exploited in an attempt to stop June’s Gaza flotilla. A lawsuit filed in federal court in New York City claimed that the sponsoring organization, the Free Gaza Movement, was raising money and preparing ships to be used in “hostilities” against American “ally” Israel. This would be a violation of the U.S. Neutrality Act. The suit was initiated immediately after Secretary of State Hillary Clinton and the State Department made clear that they were considering even harsher measures, such as charging flotilla participants with “material support of terrorism” under the PATRIOT Act.
The New York lawsuit was filed by a U.S. citizen with the assistance of the Shurat HaDin, or the Israel Law Center, which was established as a nongovernmental organization (NGO) to use the law against groups that are perceived as being hostile to Israel. It is headed by Nitsana Darshan-Leitner and her husband, Avi, who have described their organization as a means of “fighting back,” which is particularly appropriate for Israel because, they say, “the Jews invented law.”
The organization works closely with the Israeli government even though it describes itself as an NGO. It received marching orders to stop the Gaza flotilla at all costs, as well as an offer of full support, directly from Prime Minister Benjamin Netanyahu. With Netanyahu’s backing, the group asked United States Attorney General Eric Holder to take steps to stop the American participants.The group also approached Gov. Rick Perry of Texas, who obligingly wrote a letter to Holder suggesting that the flotilla passengers might be prosecuted as Neutrality Act violators and terrorism supporters.
Rick Perry, Texas Gov.
The group also approached Gov. Rick Perry of Texas, who obligingly wrote a letter to Holder suggesting that the flotilla passengers might be prosecuted as Neutrality Act violators and terrorism supporters.
Dershan-Leitner explains the passion behind Perry’s support: “I once spoke at a mission that Perry took part in, in Israel. And he approached me and said ‘I love what you do. It’s amazing what you do. If you ever need help combating Israel’s enemies, I’m here to assist.’”
Shurat HaDin harasses targeted groups with litigation so that they become ineffective or, even better, bankrupted by legal costs. Shurat HaDin was also behind the filing of a lawsuit in Greece claiming, incorrectly, that the flotilla ships were engaged in hostilities and also that they had not complied with Greek safety regulations. The suits in New York and Athens were palpably of doubtful validity, but once the legal process started grinding, all that was needed was a friendly judge in either location to jeopardize the sailing.
Nitsana Darshan-Leitner
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