Last week, after the U.S. Court of Appeals for the Ninth Circuit refused to reinstate the Trump Administration’s ban on travel from seven majority-Muslim countries, I began seeing references to a new-to-me legal blog with an interesting name: Lawfare.
LAWFARE: "Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute." A disgraceful decision!
— Donald J. Trump (@realDonaldTrump) February 10, 2017
Clever, I thought: a blend of law and warfare. But how did the Non-Reader-in-Chief happen to hear about it? Not much of a mystery:
I was curious how Trump heard of Lawfare. Well, he saw it on TV, of course. https://t.co/XSSpeAK7yd
— Jonathan Chait (@jonathanchait) February 10, 2017
I’ll get back to the Lawfare blog – and the post that caused that day’s Trumpertantrum – in a bit. First, though, here’s what I learned after doing a little homework: The word lawfare wasn’t coined by the Lawfare blog. And it’s had an interesting, decades-long history.
Collins English Dictionary gives three definitions but no citations for lawfare: In government, legal, and military contexts, lawfare refers to “the use of the law by a country against its enemies.” Wiktionary defines it as “the use of the judicial system against one’s opponents, often only to attack or condemn a rival,” and cites the lawyer and right-wing columnist Kurt Schlichter (misspelling his name): “We started calling it ‘conservative lawfare,’ and it drove the progressives nuts.” The sentence appears in Schlichter’s 2014 book Conservative Insurgency, in a passage about lawsuits against the Affordable Care Act:
There had always been a few conservative or liberty-based legal groups who would sue when the government overstepped, but we were part of a wave that took it to a whole new level. It really kicked in with the suits involving Obamacare and its effect on religious and personal liberty. … My whole goal was to survive in the case long enough to get in front of a jury, because then we would win even if we lost.
The Lawfare blog, whose tagline is “Hard National Security Choices,” takes a different tack on lawfare. In the blog’s first post, published on September 1, 2010, co-founder and legal expert Benjamin Wittes wrote:
We mean to devote this blog to that nebulous zone in which actions taken or contemplated to protect the nation interact with the nation’s laws and legal institutions. The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. This latter sense of the word—which is admittedly not its normal usage—binds together a great deal of our work over the years. It is our hope to provide an ongoing commentary on America’s lawfare, even as we participate in many of its skirmishes.
. The blog’s About page goes into more detail:
Going back to the 1950s, the term has frequently been used in contexts wholly unrelated to national security, ranging from divorce law to courtroom advocacy to colonialism to airfare for lawyers. But its most prominent usage today very much concerns national security. Its first use in this context, seems to have appeared in Unrestricted Warfare, a military strategy book written in 1999 by two officers in the People’s Liberation Army who used the term to refer to a nation’s use of legalized international institutions to achieve strategic ends. More significantly, however, the term “lawfare” was popularized in the modern parlance in an influential 2001 paper by then-Air Force Colonel (and later General) Charles Dunlap, who is now the Executive Director of Duke Law School’s Center on Law, Ethics and National Security.
The Lawfare blog isn’t alone in claiming lawfare as part of its name. The New York-based Lawfare Project, which calls itself “the legal arm of the pro-Israel community,” claims that “lawfare is inherently negative. It is not a good thing. It is the opposite of pursuing justice. … Lawfare is the new legal battlefield.” The Lawfare blog and the Lawfare Project coexisted in relative harmony until 2013, when the groups’ respective founders got into a spirited Twitter back-and-forth about Huma Abedin, an aide to Hillary Clinton. (Read all about it.) A book unrelated to either organization, Lawfare: The War Against Free Speech, was published in 2011 by the Center for Security Policy Press.
As for the February 9 Lawfare blog post that rattled the current occupant of the White House, yes, it did say the court “did not bother to even cite the statute” about presidential powers over immigration. But its author, Benjamin Wittes – “a person whose enthusiasm for the Trump administration is, shall we say, under control,” as he put it in another post – had come to the opposite conclusion as POTUS: “The Ninth Circuit is correct to leave the TRO in place, in my view.” Wittes ended his commentary by noting “the incompetent malevolence with which this order was promulgated.”
— Keith Olbermann (@KeithOlbermann) February 10, 2017