Lawfare and U.S. National Security
Orde F. Kittrie
Arizona State University (ASU) - Sandra Day O'Connor College of Law
January 13, 2011
Case Western Reserve Journal of International Law, Vol. 43, p. 393, 2011
The increasing legalization of international relations has made law an increasingly powerful alternative to traditional military means to achieve operational objectives. Major General Charles Dunlap, Jr., has famously coined the term "lawfare" to describe the strategy of so using - or misusing - law. Terrorist groups and their state sponsors have made explicit and sometimes effective use of lawfare to achieve their operational objectives. Under the Obama Administration, and especially the Bush Administration, the U.S. executive branch's response to law's potential as a tool for advancing military objectives has thus far been predominantly defensive. This is unfortunate. If there are ways of accomplishing traditional military objectives using law, the United States should not only fight back hard against terrorists' use of them but also vigorously look for ways to itself so use law. First, lawfare is less deadly than traditional warfare. Second, if some portion of the battle can take place in the courts rather than the battlefield, that should be to the U.S.'s great advantage. While the United States does have more sophisticated lethal weapons than those of its adversaries, its advantage in sophisticated legal weapons is surely even greater. However, the U.S.'s advantage in sophisticated legal weapons has thus far been underutilized.
Part I of the article analyzes lawfare and its use by terrorists and their state sponsors. Part II examines the U.S. executive branch's defensive response to lawfare.
Part III employs as a case study the uses thus far and potential future uses of lawfare against Iran, which is both the leading state sponsor of terrorism and the leading threat to the nuclear nonproliferation regime. The remarkable impact of the limited deployment of lawfare against Iran to date indicates that some types of lawfare, deployed systematically and effectively, may be able to save U.S. and foreign lives by significantly advancing U.S. national security objectives that would otherwise require kinetic warfare. Concerned that U.N. Security Council sanctions on Iran are insufficiently impactful, and faced with the drawbacks of a U.S. military option, American opponents of Iran's nuclear weapons program are creatively using law in four key ways to step up the pressure on Iran to comply with international law and cease its enrichment and other sensitive nuclear activities: (1) state and local actions including pension divestment; (2) legal pressure on foreign banks doing business with Iran; (3) legal pressure on foreign energy companies supplying refined petroleum to Iran; and (4) litigation strategies.
For example, the Treasury Department has in recent years persuaded foreign banks to stop doing business with Iran by directly reaching out to those foreign banks and reminding them of the risks of doing business with Iran, a risk exemplified by the steep fines levied against banks caught conducting illicit trade with Iran. In much the same way, the State Department has in recent months persuaded foreign energy companies to stop doing business with Iran by directly reaching out to those foreign energy companies and advising them of the risks of doing business with Iran, a risk exemplified by the CISADA sanctions (on companies doing business with Iran's energy sector), imposition of which can be halted if the President receives reliable assurances that the company is stopping such business with Iran's energy sector. In both cases, an implied or explicit threat of legal action pursuant to U.S. law, delivered to the foreign company directly by U.S. officials, persuades the foreign company to stop doing business with Iran, even though such business is not prohibited by the government of the country in which the foreign company is headquartered. As a result of this creative new form of lawfare, by October 2010, most of the world's leading banks had curtailed their business with Iran and each of the companies that had, two years before, been one of the top five suppliers of gasoline to Iran, had dropped out of supplying gasoline to Iran. The volume of gasoline imported by Iran in September 2010 was reportedly as much as ninety percent less than what Iran imported in months prior to the July 1, 2010 enactment of CISADA. Meanwhile, Iran's remaining gasoline suppliers have demanded higher premiums from Iran for their willingness to risk U.S. penalties. By using lawfare, the United States and its allies have managed to drastically reduce Iran's gasoline supplies without intercepting a single tanker or firing a single shot.
Part IV notes that the strong impact of lawfare-style sanctions against Iran calls into question the accuracy of the dominant paradigm in the scholarly literature regarding sanctions, which derides sanctions as ineffective in a globalized economy. Part IV concludes by considering lessons learned and how the United States could more effectively use some types of lawfare as a tool for promoting its national security.
Number of Pages in PDF File: 29
Keywords: lawfare, security, nonproliferation, Iran, operational
Date posted: April 25, 2011