Friday, January 27, 2012

Donald Rumsfeld on Lawfare

As never before in history, today lawyers and legal considerations pervade every aspect of US military operations.  Besides contending with enemy bullets and bombs, the men and women in our nation's military and intelligence services must also navigate legal traps set by our enemies, by some of our fellow citizens, by some foreigners, and even by some members of Congress and officials at international institutions such as the United Nations... American military personnel have found themselves named in lawsuits across Europe and in the United States.  The mere threat of lawsuits and legal charges effectively bullies American decision makers, alters their actions, intimidates our security forces, and limits our country's ability to gather intelligence and defend the American people.  This is a new kind  of asymmetric war waged by our enemies - "lawfare."
Lawfare uses international and domestic legal claims, regardless of their factual basis, to win public support or harass American officials - military and civilian - and to score ideological victories.  Each legal action is a thread.  The cumulative effects binds the American Gulliver.  Enemies who cannot score military victories can nevertheless impair our defenses by litigating warfare.  Lawfare is particularly effective against the United States, because it exploits America's laudable reverence for the law - to make us vulnerable to enemies who have nothing but contempt for those very instincts and institutions.
We cannot yet know what the full consequences of lawfare will be, but the trend is troubling.  At home, judges - not elected representatives in Congress or the in the executive branch - increasingly determine how a president can operate during wartime against our nation's enemies.  Terrorists have been given legal privileges and protections they are not entitled to by any standard.  They violate nearly every law of war, yet our courts now perversely award terrorists more rights than any of our traditional military enemies have had throughout our country's history...
I received my first lesson in lawfare from a friend who had several close encounters with its spear point.  In 2001, Henry Kissinger told me that when he traveled abroad he still faced threats of legal action for his work as secretary of state in the Nixon and Ford administrations three decades after the fact.  Various critics have alleged he was complicit in war crimes and other offenses in Southeast Asia to South America.  This dedicated public servant and Nobel laureate has had to live with periodic threats of arrest resulting from the action of some rogue magistrate or grandstanding prosecutor - not in the nations of America's enemies, but in Europe, in countries with whom the United States is allied.
I came to appreciate keenly the dangers of lawfare during my second tenure as secretary of defense.  In the spring of 2003, General Franks was named in a lawsuit brought before a Belgian court for his role in the Iraq war.  The Belgian parliament had passed a law in the 1990s giving their nation's courts the jurisdiction to try war crimes, genocide, and other crimes against humanity wherever they were committed in the world.  This concept of universal jurisdiction asserts that any court, anywhere in the world, could put American citizens - military or civilian - on trial if the alleged offense is described as a violation of international law.  But we knew that what was claimed as international law was sometimes nothing other than the assertion of a hostile foreign critic perched on a judicial bench, or a university, or within an activist political organization.
Someone like General Franks, even after he retired from uniform, could be arrested and hauled into a Belgian court at any time.  I realized something else troubling: Any American on Belgian soil was vulnerable to criminal prosecutions - prosecutions that easily could be motivated by nothing more than opposition to US government policy.  Hundreds of US military personnel were stationed at NATO headquarters, including the American supreme allied commander and his staff.  Thousands more American servicemen and -women transit through Belgium every year, making them ripe candidates for those wishing to harass them with lawsuits and arrest warrants alleging war crimes...
The more I considered the Belgian law, the angrier I became.
At a NATO defense  ministers meeting on June 12, 2003, I made my views known.  I walked up to Belgium's minister of defense, Andre Flahaut, and asked to see him in a side room. 
Flahaut, a Socialist member of the Belgian parliament, and his left-leaning government were frequent critics of the United States... 
In language that diplomats might describe as a "frank and full exchange," I raised my concerns about the Belgan law...  I didn't recall the Belgians making any effort, for example, to arrest and try Saddam Hussein. 
The urgency in my tone was unmistakable, especially when I made what seemed to be an obvious point.  The Belgian government was justifiably proud of serving as the headquarters of NATO, the world's oldest military alliance... If Belgium was going to enforce a law that made its own territory inhospitable to Americans, I asserted, there was no reason why we could not move NATO's headquarters again [It left France in 1966].
"It is perfectly possible to met elsewhere," I said to Flahaut and, later that day, to the press.
Flahaut was counting on US funding for a new NATO headquarters in Brussels.
Within two months of that conversation, the Belgian government repealed their law.
Belgium was not alone in threatening American sovereignty with lawfare.  The International Criminal Court (ICC) was proposed in the 1990s as a court for crimes against humanity, genocide, and systematic war crimes.  By 2003, the ICC was being discussed as a possible forum to try US military and civilian personnel involved in the Iraq war.  The American military had objected strongly to the ICC treaty for these reasons in the 1990s...
In the Defense Department we saw the International Criminal Court as a potential lawfare weapon against the United States.  One aspect of the treaty that made the court so objectionable was that it would create offices for prosecutors who were effectively unaccountable - even if they acted politically or otherwise improperly - who could prosecute Americans without respecting their rights under the US Constitution...  I pushed for the US government to "unsign"the treaty.  In May 2002, a State official who agreed with our position on the issue, the tenacious undersecretary for arms control and international security John Bolton, formally announced that the United States would not ratify the treaty.
The fact that the United States was not party to the treaty and had unsigned it was not enough to protect American servicemen and -women.  I had launched a global campaign to obtain commitments... from over one hundred nations that they would agree to never surrender Americans into ICC custody...
I think of sovereignty in concrete terms.  It is a matter of freedom and autonomy.  It means that we Americans control our destiny and are not ruled from abroad by officials we did not elect and courts we cannot hold accountable...
If unchecked, the growing international judicial encroachments on our sovereignty will encourage an unfortunate and harmful trend toward American isolationism.  If US troops and officials can increasingly be tried in foreign courts, many Americans will decide that sending our military on humanitarian missions, aiding allies, or defending our interests abroad is not worth the risks.  Victims of tsunamis and earthquakes overseas could no longer depend on American assistance.  Would-be aggressors could take advantage of our reluctance to use military forces.  Lawfare's greatest casualty will likely not be any one American official or serviceman.  The greatest casualty will be the loss of America's willingness to use our military force for good around the world.