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Thread: Lawfare - Theory & Practice

  1. #41
    Council Member Dayuhan's Avatar
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    Quote Originally Posted by Bob's World View Post
    Certainly doing nothing is always an option, and probably more often than we would like admit, the best one. It means relinquishing control of outcomes though, and that makes us nervous.
    On this we agree. We also desperately need to accept that in most cases our ability to influence the internal affairs of other countries is quite limited.

    Quote Originally Posted by Bob's World View Post
    What I offer is an alternative to current perspectives on engagement. One based in recognizing that it is governments that cause insurgency, and not insurgents that cause insurgency.
    This is in most cases true, though as with any blanket statement there will be exceptions and variations on the rule. It would be an important issue if insurgency were our problem. However, except where we have created insurgencies by removing governments and trying to model their successors according to our preference, we don’t have an insurgency problem. Except for the insurgencies we created, there isn’t an insurgency on the planet that would require a significant US combat commitment, or where a significant US combat commitment would be desirable.

    We need to keep in mind that AQ – our enemy – is not an insurgency, and doesn’t truly thrive on insurgency unless that insurgency is directed against a foreign invader in Muslim territory. AQ has only flourished when foreign intervention has been present, which is why they were so desperate to provoke the US into direct military engagement in the Muslim world. They have endured where they have had sympathetic governments: under the Taliban in Afghanistan and to some extent in the Sudan. They have established presences where government has been absent or ineffectual, as in Somalia or Yemen. Their attempts to marshal insurgency against established governments have done very badly, not because those governments are popular or good, but because populaces generally have not seen government by AQ or their ilk as an acceptable alternative.

    Quote Originally Posted by Bob's World View Post
    All engagement is not however inherently bad. It is possible to help people to get to a better place through wise, tailored engagement that never forgets where we fit into the equation as an outside party.
    I’d rather say “where or whether we fit into the equation”. The example you gave above represents to me a fairly obvious case of inserting ourselves into an equation where we have no reasonable place: we cannot run around conducting UW against governments because we don’t approve of the way they handle relations with their populaces.

    We also have to remember that in many of the cases involved, government, populace, and insurgents all view us on a fundamental level as a dangerous, acquisitive power that is fundamentally hostile toward people of their religion and/or ethnicity and is bent on gaining control over their land and resources. Whether or not this perception is accurate is irrelevant, it exists and as long as it exists our intervention is going to be rejected by all parties no matter how good our intentions are… and we all know where the road paved with good intentions leads. Our ability to fit into these equations is directly related to the perception the affected populace has of us, and that generally isn't very positive these days. We may be able to improve that erception, but it will require many years and we aren't going to do it by forcing ourselves onto other people's problems.

    Quote Originally Posted by Bob's World View Post
    I always bring this back to our own experience as I believe most Americans can empathize with other Americans better than they can with others; and also because what we are primarily taliking about are American approaches that are presumably cast within a context of the American ethos that was shaped back in the 1700s.
    If we proposed to intervene in the America of the 1700s, this would be very useful. The environments in which we propose to intervene are unique and something other than 1700s America, and while the solutions we developed for ourselves worked very well for us, the degree to which they are appropriate to other people’s problems may be limited… and our right to impose solutions on other people’s problems is even more limited.
    Last edited by Dayuhan; 10-01-2010 at 06:52 AM.

  2. #42
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    Default Rethinking Revolution: Lawfare

    Last edited by davidbfpo; 05-15-2017 at 08:30 AM.

  3. #43
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    Default Case Western Reserve - Lawfare

    Case Western Reserve (Vol. 43, Nos. 1 & 2, 2011) has created what, in effect, is an online course in "Lawfare", which presents different issue areas and differing points of view in answer to the question: LAWFARE!:ARE AMERICA'S ENEMIES USING THE LAW AGAINST US AS A WEAPON OF WAR?

    Here are the contents (each a separate .pdf) which can be reached from the link above:

    Foreward: Lawfare!
    Michael P. Scharf & Shannon Pagano

    Is Lawfare Worth Defining? Report of the Cleveland Experts Meeting
    Michael Scharf & Elizabeth Andersen, assisted by Cox Center Fellows Effy Folberg, Michael Jacobson, & Katlyn Kraus

    Historical and Semiotic Origins of "Lawfare"

    Historical and Semiotic Origins of "Lawfare"
    Susan W. Tiefenbrun

    The Curious Career of Lawfare
    Wouter G. Werner

    Lawfare or Strategic Communications?
    Dr. Gregory P. Noone

    Lawfare: A Rhetorical Analysis
    Tawia Ansah

    Is "Lawfare" a Useful Term?

    Does Lawfare Need an Apologia?
    Major General Charles J. Dunlap, Jr.

    Lawfare: A War Worth Fighting
    Dr. Paul R. Williams

    On Legal Subterfuge and the So-Called "Lawfare"
    Leila Nadya Sadat & Jing Geng

    The Dangers of Lawfare
    Scott Horton

    Lawfare and War Crimes Tribunals

    Lawfare: Where Justice Meets Peace
    The Honorable Principal Judge of Uganda, Justice James Ogoola

    Lawfare and the International Tribunals: A Question of Definition? A Reflection on the Creation of the "Khmer Rouge Tribunal"
    Robert Petit

    The Take Down: Case Studies Regarding "Lawfare" in International Criminal Justice: The West African Experience
    David M. Crane

    Whose Lawfare is it, Anyway?
    David Scheffer

    Lawfare and the Israeli-Palestine Predicament

    The Gaza Strip: Israel, Its Foreign Policy, and the Goldstone Report
    Milena Sterio

    Illustrating Illegitimate Lawfare
    Michael A. Newton

    Finding Facts But Missing the Law: The Goldstone Report, Gaza, and Lawfare
    Laurie R. Blank

    Gaza, Goldstone, and Lawfare
    William A. Schabas

    Litigating the Arab-Israeli Conflict in U.S. Courts: Critiquing the Lawfare Critique
    William J. Aceves

    Lawfare and the War on Terror

    "Lawfare" in the War on Terrorism: A Reclamation Project
    Melissa A. Waters

    Lawfare and Counterlawfare: The Demonization of the Gitmo Bar and other Legal Strategies in the War on Terror
    David J. R. Frakt

    The Value of Claiming Torture: An Analysis of al-Qaeda's Tactical Lawfare Strategy and Efforts to Fight Back
    Michael J. Lebowitz

    Lawfare and U.S. National Security
    Professor Orde F. Kittrie

    Beyond Traditional Concepts of Lawfare

    Lawfare and the Definition of Aggression: What the Soviet Union and Russian Federation Can Teach Us
    Christi Scott Bartman, MPA, JD, PhD

    The Knight's Code, not his Lance
    Jamie A. Williamson

    Carl Schmitt and the Critique of Lawfare
    David Luban

    Issues on International Humanitarian Law and Genocide

    The Legality of Reciprocity in the War Against Terrorism
    Ambassador Robbie Sabel

    The Status of Corporations in the Travaux Preparatoires of the Genocide Convention: The Search for Personhood
    Michael J. Kelly

    Frederick K. Cox International Law Center Lecture in Human Rights and Humanitarian Law

    Human Rights and Humanitarian Law Conflict or Convergence
    Sir Christopher Greenwood, CMG, QC

    Student Note

    Animals Are Property: The Violations of Soldiers' Rights to Strays in Iraq
    DanaMarie Pannella
    Each of these are tidbits (~ 10-20 pages).

    Regards

    Mike
    Last edited by jmm99; 02-06-2012 at 05:31 AM.

  4. #44
    Council Member davidbfpo's Avatar
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    Default Qatada back on the streets within days despite posing 'grave risk'

    A marvellous headline from The Daily Telegraph, which obscures the difficulties faced by the UK to legally deal, with a charge, trial and result; with a man who is regarded as an extremist ideologue / preacher, who officialdom regards as a risk. Note he has been in jail - without charge - for six years.

    He is ostensibly awaiting deportation to Jordan, who convicted him of terrorism in absentia; some of the evidence allegedly obtained under duress / torture. The European Court of Human Rights ruled against a deportation last month.

    Links:http://www.telegraph.co.uk/news/ukne...thin-days.html

    Details on time in jail October 2002-March 2005 and August 2005 till today:http://www.telegraph.co.uk/news/ukne...n-Britain.html

    Who is Abu Qatada? A profile:http://www.telegraph.co.uk/news/ukne...bu-Qatada.html

    The shorter BBC report and details of bail conditions:http://www.bbc.co.uk/news/uk-16914401
    davidbfpo

  5. #45
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    Harvard National Security Journal, 10 April 2012: Offensive Lawfare and the Current Conflict
    The term “lawfare” has become part of the lexicon of the current global conflict and although it is defined in various ways, it is essentially a way to describe legal activities within the context of armed conflict. To date, the term has not been applied to legal activities focused on negatively impacting United States’ adversaries. This article seeks to expand the lawfare conversation and encourage a policy dialogue by weaving it together with the Army’s operational doctrine and counterinsurgency doctrine.

    The United States Army’s operational concept provides a framework to conceptualize “offensive lawfare” which, in the current global counter-insurgency conflict, should be understood to include efforts to deny enemy forces sanctuary, to blunt their abuse of courts, and to use both foreign and domestic courts to better support our national security strategy. Policy discussions to improve our offensive lawfare posture should include providing support to litigants in certain domestic and foreign court actions that are deemed to be congruous with these ends. More specifically this article advocates broadening the national security policy discussion to include providing support to plaintiffs in terrorism related civil litigation domestically, to certain defendants in certain foreign criminal actions, to defendants in foreign civil litigation that is deemed to be related to the current conflict, and to plaintiffs pursuing foreign causes of action against terrorist organizations and their supporters...

  6. #46
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    Quote Originally Posted by Jedburgh View Post
    Harvard National Security Journal, 10 April 2012: Offensive Lawfare and the Current Conflict
    Just so I'm clear, today's gunslinger engages the brutality of war with the brutality of nonsense. Right?

    The United States Army’s operational concept provides a framework to conceptualize...
    Can't go to war without conceptualizing concepts.
    PH Cannady
    Correlate Systems

  7. #47
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    Default The Emergence of Lawfare (OUP Infographic)

    Last edited by davidbfpo; 05-15-2017 at 08:30 AM.

  8. #48
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    Default 'Lawfare' Could Become Trump Tool Against Adversaries

    Last edited by davidbfpo; 05-15-2017 at 08:31 AM.

  9. #49
    Council Member Polarbear1605's Avatar
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    Question Lawfare

    I was out on General Dunlap's Duke Law web site and found this article Lawfare 101 was recently posted.
    http://www.armyupress.army.mil/Journ...p-Lawfare-101/
    Pete McGuire in his book "Law and War - An American Story" defines Strategic legalism as "the use of laws or legal arguments to further larger policy objectives, irrespective of the facts or laws." I have a couple questions and would like to see if there is any interest with the forum participants.
    1. Is strategic legalism different from lawfare?
    2. If not, is strategic legalism included in lawfare or is lawfare part of strategic legalism?
    "If you want a new idea, look in an old book"

  10. #50
    Council Member slapout9's Avatar
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    Thumbs up General Dunlap is the real deal

    Quote Originally Posted by Polarbear1605 View Post
    I was out on General Dunlap's Duke Law web site and found this article Lawfare 101 was recently posted.
    http://www.armyupress.army.mil/Journ...p-Lawfare-101/
    Pete McGuire in his book "Law and War - An American Story" defines Strategic legalism as "the use of laws or legal arguments to further larger policy objectives, irrespective of the facts or laws." I have a couple questions and would like to see if there is any interest with the forum participants.
    1. Is strategic legalism different from lawfare?
    2. If not, is strategic legalism included in lawfare or is lawfare part of strategic legalism?
    IMO Lawfare is the on the highest policy level possible! So it would follow that a strategic legalism is different and of a lower level. It deals more with the actual weaponization of the law. Corporations do this all the time often to the detriment of our Nation as a whole.

    Also IMO General Dunlap is one of greatest undiscovered Strategist we have, If his advice were ever truly followed we would start winning so much we would get tired of it...........hint:President Trump!

  11. #51
    Council Member davidbfpo's Avatar
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    Default Moderator at work

    Thanks to Polarbear1605's post a week ago for rekindling this debate I have merged in one substantial thread, with 12k views and four smaller SWJ Blog pointers. The catalyst being the next post.
    Last edited by davidbfpo; 05-15-2017 at 08:34 AM. Reason: 20,901v
    davidbfpo

  12. #52
    Council Member davidbfpo's Avatar
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    Default Lawfare against the Armed Forces

    A short blog article from Policy Exchange, a London-based "neo-con" think tank; with the full title and sub-title:
    Lawfare against the Armed Forces must be on the next Government’s agenda; Combatting the judicialisation of war
    Link:https://policyexchange.org.uk/lawfar...nments-agenda/
    There is considerable apprehension at the way the courts have interpreted human rights and other laws. As yet no-one has taken action, as the article commends.
    davidbfpo

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