Lawfare: A Current Threat or Much Ado About Nothing?

Lawfare is a recently coined term which in its broadest sense refers to the involvement of legal process in modern day warfare. Lawfare can range from litigation in federal or international courts to the exploitation of U.S. Rules of Engagement. It also can be defined as using or misusing law as a substitute for traditional military means to achieve a strategic or operational military objective. This paper examined specific legal cases in which the misuse of legal process was alleged, including accusations that detainees were instructed by Al Qaeda trainers to bring false claims of torture to influence public opinion against the United States and drain resources through protracted litigation. Supreme Court decisions were examined with an eye toward any deleterious effects on military operations. I have concluded that litigation lawfare is largely a myth, and that cases decided by the Supreme Court provided a much needed check on executive authority. The threat of lawfare was overstated and was adequately handled by our judicial system.