Storming the Courts

J'Accuse: Lawfare Lawyers Storming the Courts

Lawfare (efforts to achieve of military objectives through legal tools) has developed an unfortunate derogatory connotation, to describe the work of unscrupulous practitioners using legal institutions to thwart otherwise legal U.S. military operations.

During my family's drives to Boston to visit my wife's parents, we have developed a routine. We get off I-95 in New Haven so my kids could have the legendary pizza while I run into the Yale Barnes & Noble (which I still refer to as the Yale Co-Op). There, I am generally able to find books dealing with my alma mater I do not see elsewhere. On a recent trip, I picked up Storming the Courts, Brandt Goldstein's book about a group of Yale Law students who, under the direction of Professor Harold Koh, sued the first Bush Administration, seeking to enjoin its policy of detaining Haitian refugees at Guantanamo Bay.

Storming the Courts is a fast read - and an advertisement for the fun one can have by going to law school. This resonated with me, since my current job involves promoting the role of lawyers in national security. Still, I found myself getting annoyed by some of the ideological protagonists, like a student referred to as "Lisa Do-Good."

Lisa has never had a job in her life and cries when she hears about the employment offers received by her classmates. Adult employment, it seems requires and certain amount of nuance and subtlety, not something she has in large quantities. To young Lisa, the government's policy on the Haitians was "f----- racist," pure and simple. She spends hours on the computer, reading cases that might stoke the revolution. She even makes Koh weary by her constant harping. She eventually turns on her Haitian clients, saying "I've been killing myself for these people and they don't even give a damn." Welcome to the life of law, Lisa.

When Clinton is elected near the end of the book, Lisa and her classmates allow themselves the hope that the incoming administration will eliminate the Department of Justice's Office of Immigration Litigation (OIL), because its lawyers have the audacity to defend immigration judge rulings to assure that the American borders are not porous.

To these students, OIL is an "insular group with a fanatically anti-immigrant culture." Of course, Janet Reno saw things differently as did her boss, who suffered the political blowback of mass refugee populations of the type depicted in Brian DePalma's Scarface being housed into Arkansas.

I would have liked Storming the Courts better if Koh and his students took up the cause of women who are relegated to slave-like status in the Muslim world, forced to undergo a gruesome medical procedure to assure that they will never enjoy sexual intercourse. Of course, that would require these students to embrace a cause they would rather ignore, because it is championed by right-wingers they likely despise.

Koh and the Center for Constitutional Rights (CCR), which is also featured in the book, have done some good work over the years. I find myself cheering for them as they sue Latin American dictators and death squads and oil companies whose commercial activity leads to violent repression of native populations in Africa and Asia. To me, these cases represent American law at its best. I tend to cringe whenever one of them is thwarted by the appearance of the United States, as when the Justice Department - my employer over the past two decades - files "statements of interest" to stay to litigation against international villains in the name of foreign policy. Alas, my respect for CCR is unrequited. In a March 2007 Legal Times article, Michael Ratner publicly doubted that anyone likes me. I can take that, if that's the worst he can say about me.

Why am I such unlikeable person? For Ratner, it is because I have suggested that there is an unscrupulous form of lawfare. This is a shame, since I am enthusiastic about lawfare in general. It's only the bad form of it that frustrates me, because it makes my profession look ridiculous. This is not a distinction CCR understands.

Lawfare (efforts to achieve of military objectives through legal tools) has developed an unfortunate derogatory connotation, to describe the work of unscrupulous practitioners using legal institutions to thwart otherwise legal U.S. military operations. The problem is that war fighting is governed by international law, and its practitioners are hardly lawless. People who wrongly accuse the U.S. of war crimes are represented by lawyers who need a refresher course in legal ethics, and in what constitutes frivolous litigation.

These practitioners, I believe, deserve the criticism they get. I prefer to label what they do "bad lawfare" or "unscrupulous lawfare," thereby leaving open a form of the term that should be promoted. This distinction has not prevented a group of conservative legal commentators like Andrew McCarthy and Jack Goldsmith from sneering at the term itself, without the necessary qualification that I urge, nor has it prevented people from thinking that I invoke lawfare to condemn it in all forms. It's my goal to steal the term back from them.

I have written about this issue in FindLaw, an online legal magazine. The first of my lawfare articles introduced the concept (which, contrary to popular belief I did not coin), and suggested that lawyers have a vital role to play in counterterrorism, if for no other reason that they control certain levers of statecraft that are sometimes the only counterterrorism option. My second FindLaw article went further, arguing that the American legal community needs to look inward if we ever to take the term lawfare back from its derogatory connotation.

I wrote that there are anecdotal signs that certain American lawyers are practicing the odious form of lawfare, as when they use legal proceedings for their pet political causes or try to impose absurd legal requirements that would prevent the U.S. from fighting wars in a way that conforms with the Law of Armed Conflict. These efforts play into the hands of people who think that lawyers should be eliminated from U.S. national security decision making altogether. I maintain it is an obligation of lawyers to assess costs within our profession, to keep it clear of the taint of those who are inclined to dislike us. Of course I was not speaking on behalf of the United States. I was writing as a licensed lawyer, about an important matter to my profession

The second article apparently hit some FindLaw readers close to home. Over the weekend, I received a bunch of angry e-mails, mainly from human rights practitioners in Scandinavia and radical New York lawyers, who expressed chagrin in my comments.

I responded to all of them. This was easy, for they generally misunderstood my argument to say that lawyers should not be involved in counterterrorism or in seeking to enforce that the U.S. government act in a legal way. In fact, that was the exactly opposite of what I was saying. I made no apologies. Then, about a week later, I learned that Legal Times was planning an article on the controversy I had stoked, which would include suggestions that I had somehow violated ethics rules and should be fired from federal employment.

What an ironic way for lawyers to react, I thought, to a message with which they happen to disagree. Moreover, I was arguing in favor of lawfare, and limited my condemnation to the type of lawfare that gives lawyers a bad name. Since when is that a firing offense?

At the urging of the Department of Justice's Public Affairs Office, I spoke to the Legal Times reporter, explained my position, and pointed her to other articles I had written on the subject. She took it all in. The resulting piece was far more balanced than her initial inquires seemed to portend, though she included that quote from Michael Ratner that I am not a likeable person. Surely he was speculating, for we have never met. Still, that's fair. I don't much like Lisa Do-Gooder, though I've never met her.

The latest form of bad lawfare is exemplified by the absurd lawsuit CCR recently fired against Professor John Yoo. His crime was giving advice to his superiors when he was employed by the government. This advice included whether it was okay to hold Jose Padilla after he was arrested in the United States on his way to do something bad on behalf of al Qaeda.

Of course, we all know that Jose Padilla is being held incommunicado, deprived of the ability to see a lawyer. However, I seem to recall that the Supreme Court issued an opinion on Padilla's detention, which means that perhaps he did have a lawyer. I also heard a rumor that he had a trial, overseen by federal judge Marcia Cooke, and it involved a jury. I seem to recall that Padilla was convicted, and that there was something called a "sentencing hearing" this past week in Miami. At least that's what the newspapers say.

Given these rumors, what is it CCR alleges John You to have done? He spoke words to his supervisors. He even wrote words on papers that were routed to them. Now I seem to remember something about "sticks and stones," and how they might be contrasted with words, in terms of their ability to hurt. That may be just a rumor as well.

Of course, CCR believes that money - which can buy sticks and stone, as well as bombs and bullets - qualifies as something that can never cause harm. That is why they have argued that the United States cannot constitutionally criminalize the act of giving money to foreign terrorist groups, and that private lawyers suing on behalf of victims of Hamas terrorism cannot collect against those who gave Hamas money, even if the government has announced that it is foreseeable that all money sent to Hamas will help it wage its campaign of indiscriminate violence.

How would CCR feel about American manufacturing companies that sell some of its lawful products to the Israeli military? Is that unreachable? Hardly. Jennifer Green of CCR, who filed a lawsuit against Caterpillar for its acts of selling bulldozers to the Israeli government, stated "[I] imposing liability for knowingly providing substantial assistance in the commission of internationally wrongful conduct requires no revolutionary insight. It only requires faithful adherence to the understanding of the [American law] at its inception and the application of modern common law principles." Banks providing financial service to the South Africa Apartheid regime? Also fair game to CCR.

I see. So to CCR, it all depends on the identity of the defendant. If they have done something that CCR does not like, they can be sued. If not, such lawsuits are unconstitutional.

This makes likeability legally actionable. John Yoo's problem, like mine, is that he is not liked, at least to CCR. If CCR has its way, perhaps people will think twice before joining the McCain or Romney Administration. After all, there are a group of young lawyers and law students lying in wait, ready to storm the courts. Indeed, law can be fun.

By Jeff Breinholt
January 24, 2008

The original article can be found at http://www.familysecuritymatters.org/

Posted January 26, 2008 05:09 PM
Read more on Law and Legal Issues