April 23, 2021

Lawfare: How America Can Make Russia and China Think Twice

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by Andrew Doran, Senior Research Fellow

In the years ahead, the United States will need to develop alternatives to sanctions and other blunt force methods of state action. The American way of lawfare is one method that should be considered.

For several years, U.S. rivals and various agitators have used “lawfare” to undermine international institutions, obscure human rights violations, steal intellectual property, or otherwise weaken the rule of law. The term vaguely captures the attempt by state and nonstate actors to make illegitimate use of law to advance their interests. To paraphrase Carl von Clausewitz, lawfare is the extension of policy by means other than traditional war. Lawfare is primarily a weapon used against America and its allies—Israel in particular—through domestic and international fora. However, the term is also used by proponents of the rule of law to refer to protecting U.S. interests and human rights. For the most part, the United States has played defense against lawfare, but there are opportunities to go on the offensive. One means to do this is targeted support for private litigation to counter rivals and bad actors—a very American way of lawfare.

One essential example of such support would be sharing, on a narrowly focused basis, information in the possession of the government that could be used as evidence in civil litigation that would advance U.S. interests—including national security, human rights, intellectual property, and business. As this would require coordination between agencies and addressing concerns regarding sensitive information, the National Security Council might be the best place to house such an initiative. The U.S. Attorney for the Southern District of New York provided a test case for this when he shared information about Iranian property assets held in the United States. The U.S. government is in possession of substantial amounts of information that might enable victims to win judgments against terrorists and their material cooperators, human traffickers, and those who steal intellectual property, benefit from slave labor, or commit gross human rights violations. Congress can support this work as well.