Forty years ago, the still quiet of a Sunday morning in Lebanon was disturbed by two explosions. The target for these two, massive, nineteen-ton truck bombs were two facilities in Beirut, Lebanon. At the time, one of those facilities was the barracks of US Marines from the 1st Battalion, 8th Marine Regiment, while the other housed French military forces. Both contingents were part of the Multinational Force in Lebanon—a military peacekeeping operation deployed during the Lebanese Civil War. In the charred and burned-out rubble, 241 American servicemen lay dead alongside 58 French paratroopers. For France, this was worst military loss since the Algerian War of Independence. For the United States, the bombings in Beirut represented the single deadliest day for US Marines since the Battle of Iwo Jima.
As the dust settled in October 1983, the Beirut bombing signaled at least two major changes in the contours of warfare. Most obviously, it mainstreamed the tactic of terrorism—which shaped the conditions of military service in the United States for a generation after 9/11. The other, less discernible and more subtle in its demands, is reflected in the work of legal practitioners for over two decades to strike back at the perpetrators in Beirut. The techniques employed by these lawyers are growing in importance today against strategic competitors like China. The legacy of the Beirut bombing is that the creativity (and persistence) of civilian lawyers determined to seek justice for the victims in Beirut offers a highly relevant lesson for military attorneys today. The same level of creative lawyering will be demanded of the next generation of judge advocates and must be taken into account when considering how they will be trained and educated in preparation for future conflict.
The US Response
The tactics used in the attacks on the barracks in Beirut—acts of terrorism—would grow more common in the final decade of the twentieth century, culminating in the attacks on September 11. There was a similar passionate cry for a response from President Ronald Reagan in the aftermath of the attacks in Beirut as that which resulted in the broad authority given Present George W. Bush with the Authorization for Use of Military Force of 2001 following the September 11 attacks.
Within days of the bombing, the Central Intelligence Agency found clear linkages and “hard evidence” of Iran’s culpability. Relying on those initial reports, President Reagan faced the nation on October 27, 1983, mincing no words: “Those who directed this atrocity must be dealt justice, and they will be.” President Reagan issued a written order the following day to Secretary of Defense Caspar Weinberger. “Subject to reasonable confirmation of the locations of suitable targets used by elements responsible for the [Beirut] bombing,” the order read, “attack those targets decisively, if possible.” It seemed near-certain that the US military would lead a response to the deadly attacks at the barracks in Beirut.
While it is unclear exactly what his opinion was, Secretary Weinberger was at least initially unconvinced that such clear evidence existed to warrant an immediate military action. Whether there was or was not, in fact, a linkage between the attacks and Iran was a question whose answers could have grave potential consequences. A careless reaction to this novel terrorist threat might unnecessarily expose the United States and its friends to retaliation from their Cold War rival, the Soviet Union. Further, it loomed large to Secretary Weinberger that passions across the nation had not cooled from its experience in Vietnam, the decade prior. The shadow cast by “Vietnam syndrome” was exemplified in the American public’s perceived aversion to overseas military intervention.
Ultimately, there would be no military response for the bombings in Beirut. The remains of the fallen Marines would return to be honored by a grateful nation and their Marine brethren. Today, 1st Battalion, 8th Marine Regiment still bears tribute with its moniker: the “Beirut Battalion.” Instead of a military action, a response to those slain Marines from the Beirut Battalion would come from the most unlikely source: civilian lawyers in a courtroom.
Peterson v. Islamic Republic of Iran
Professor Orde Kittrie, in his seminal work, Lawfare: Law as a Weapon of War, has exhaustively captured the efforts that took place nearly twenty years ago (and twenty years after the Beirut bombing), when Iran was finally held accountable. On May 30, 2003, in a quiet federal courtroom, Judge Royce Lamberth ruled in Peterson v. Islamic Republic of Iran that Iran was responsible for the “unspeakable horror” that claimed the lives of the Marines in Beirut and simultaneously affected the “lives of those who survived the attack,” along with their families. Accordingly, Judge Lamberth ordered Iran to pay $2.65 billion (later an additional $7 billion in compensatory and punitive damages) in compensation to the plaintiffs in the Peterson case.
The conclusion by Judge Lamberth was not foregone. In fact, for over a decade, attorneys Steven Perles and Thomas Fay labored tediously for this result. First, they had to rely upon the available intelligence to draw a linkage between the bombings and Iran. Then, they had to demonstrate to the Court an avenue for an appropriate remedy (e.g., financial restitution) through an articulation of the particularized harms and damages. Finally, they had to single-handedly represent twenty-six Marines who had survived the attack, plus the family members of Marines who had been slain in the bombing. In all, Perles and Fay managed over nine hundred plaintiffs who joined in the lawsuit.
The Peterson case became the first salvo in a series of cases to authorize US military personnel to use the terrorism exception to the Foreign Sovereign Immunities Act (FSIA). Generally, the FSIA shields foreign governments from liability in US courts. In permitting the plaintiffs to seek redress, Judge Lamberth emphasized that the US Marines who lost their lives in Beirut were part of a peacekeeping mission, and that they were operating under peacetime rules of engagement. Subsequently, in the wake of the Peterson case, Congress passed (and President Bush signed into law) an amended terrorism exception to the FSIA, further broadening plaintiff eligibility and expanding the types of damages that could be awarded to victims of terrorism.
Unsurprising, Iran refused to pay. This led to another two decades of litigation that is still ongoing. Six years after the initial ruling, the Bank Markazi (the central bank of Iran) argued that the original lawsuit was not allowed under the FSIA. In January 2020, the US Supreme Court overturned a lower court’s ruling in favor of the families of the attack victims, ordering the case to be reconsidered in light of a new law that granted exceptions to the FSIA. Then, in early 2023, a federal judge in New York ordered Iran’s central bank (and a European intermediary) to pay out $1.68 billion to those Marines’ family members.
This legal effort has proven exceedingly painful and drawn out. However, it has directly influenced the reshaping of federal laws and opened avenues to holding malign actors accountable for their disruptive behaviors, all around the world. These avenues, which are components of lawfare, are increasingly prominent features of today’s global operational environment.
Lawfare and the Future Judge Advocate
As the term was originally coined, lawfare is “the strategy of using—or misusing—law as a substitute for traditional military means to achieve a warfighting objective” without kinetic, battlefield effects. Arguably, elements of lawfare have existed for hundreds of years, but in 2001, then US Air Force colonel and now noted scholar Charles Dunlap, Jr. highlighted the technique of using human shields by terrorist groups who otherwise were, as he described in a later article, “unable to challenge America’s high-tech military capabilities.” Law professor Laurie Blank called this tactic “battlefield exploitation lawfare” or, put differently, the exploitation of an adversary’s law-abidingness to neutralize an asymmetric advantage. Two decades later, in her article “Law as a Battlefield,” National Defense University professor Dr. Jill Goldenziel argued that lawfare can be directed towards a particular strategic or political objective.
Today, the law is increasingly being used as an instrument of national power. In the years after 1983, it was the weapon that lawyers used against Iran to strike back at its sponsorship of those terrorists who perpetrated the bombing of the barracks in Beirut. Since that time, revisionist states like China and Russia have increasingly sought to rebalance their own asymmetric disadvantage by exploiting the law as a complement to traditional military operations. For these states, lawfare is used as an instrumentality of shaping the battlefield for political actions, seizing the initiative, and serving as a force multiplier that “supports, undermines, or substitutes for other types of warfare.” What is acceptable conduct, therefore, is growing increasingly difficult to discern as the contours of the modern battlefield occupy many nonphysical dimensions.
In the context of the current global strategic competition and in future armed conflict, lawfare will play a contributing role. For the United States, there are multiple beneficial ways to bolster the legitimacy of US efforts, at every level of the competition continuum, by emphasizing the justness and legality of missions. Similarly, lawfare could, like those battles waged in the courtroom following the Beirut attacks, be used to undermine the legitimacy of an adversary’s own strategy, operations, or tactics by depleting the resources (financial, public confidence, etc.) of an opposing actor.
Military lawyers will play a critical role in seizing this key terrain in future conflicts. To do this successfully, DoD must establish the necessary training and robust preparation of its judge advocates, along with the emplacement of appropriate institutional structures to support their efforts in a wide array of contingencies around the globe. Such contingencies will range from competition to small, limited operations to full-spectrum armed conflict. Further, DoD must prepare its military lawyers to anticipate, and counter, lawfare through the support of a coordinated, holistic, government approach that strengthens its own rule of law principles. Therefore, judge advocates must be trained and resourced appropriately, before a major conflict places the United States at a decided but avoidable disadvantage as it seeks to maintain its perceived legitimacy as the world’s preeminent and law-abiding power.
In addition to DoD efforts called for here, given the significant political consequences associated with lawfare, there must be a legal operations office established within the federal government to lead whole-of-government responses. Precedent for an office of lawfare already exists in the Office of Legal Affairs at NATO’s Supreme Headquarters Allied Powers Europe, which already has personnel working on lawfare. Israel, too, has an office in its Ministry of Justice devoted to lawfare. Perhaps, a valid starting point is the current efforts of the US Indo-Pacific Command J06 (staff judge advocate) national security law section, which recently launched a counter-lawfare initiative to uphold the rule of law and counter Chinese lawfare.
Formally engaging in lawfare will require the United States to reimagine the role of its military “legal advisors” (Article 82 of the 1977 Additional Protocol I to the Geneva Convention 1949, states that legal advisors are to be made available to military commanders during hostilities) through generally accepted international norms. Relatively modest changes to joint doctrine, as well as augmentation of judge advocate training and education, could enable judge advocates to confront lawfare vulnerabilities, particularly at the tactical and operational levels where those vulnerabilities are most acute. Predicting, assessing, and countering competitor activities that exploit these gray spaces of international and domestic law requires a new degree of integration between United States military planners and those uniformed legal advisors at the tactical and operational level of war. That the United States has been, thus far, unwilling to employ lawfare in any coordinated, whole-of-government manner leaves the US military (and its legal advisors) without the means and resources to effectively counter this effective new instrument of power and influence.
For four decades, the Marines’ Beirut Battalion has been honoring the legacy of its members killed in 1983, never abandoning its prominent role in the history of the nation’s fight against terrorism. In fact, as acknowledged by its recent Presidential Unit Citation, the battalion stood firm in the face of extremely challenging circumstances as the eyes of the world looked on, faithful until the very last days of the evacuation efforts of allies in Afghanistan during the US withdrawal in August 2021. The battalion deserves the honor of that unit citation, but forty years on from the Beirut bombings, DoD should take steps to also honor the efforts of the legal practitioners who shed light on a creative way of waging war, using ingenuity to find alternative means besides military might to hold the bombing’s perpetrators accountable. Lawfare worked then, and for the sake of both today’s strategic competition and any armed conflict that takes shape tomorrow, it is imperative to ensure that it will work now, too.
Winning conflicts in the future will depend on much more than military strength. The rise of China and the demonstrated abilities of other competitors and potential adversaries, such as Russia, are challenging the United States’ preeminent international position through nonkinetic means. Across the entirety of the increasingly complex global competition continuum, the United States can no longer solely rely on traditional military dominance to influence international affairs or deter malign aggression by its adversaries. The time is now for the United States to take advantage of its standing, reputation, and history of following and shaping the rule of law to develop a comprehensive lawfare strategy—to counter our adversaries’ strategic and military objectives while enabling the accomplishment of our own—and prepare its military legal advisors to engage in counter-lawfare.
Major Chris Davis is presently serving as the deputy staff judge advocate at Marine Forces Special Operations Command. Prior to that assignment, he graduated with distinction from Georgetown University Law Center, earning a master of laws in national security law.
The views expressed are those of the author and do not reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Image credit: Staff Sgt. Joshua Magbanua, US Air Force
Consider "lawfare" from the perspective of a New/Reverse Cold War of today; that is, a Cold War in which, this time, it is:
a. The U.S./the West that seeks to achieve "revolutionary" political, economic, social and/or value "change" both here at home and there abroad (in our case today, more along present-day market-democracy lines); herein, seeing as the pro-change "liberal" entities that we wish to protect (think R2P?) those individuals and groups — and those states and societies (IMPORTANT: WHEREVER IN THE WORLD THAT THESE SUCH ENTITITES MIGHT BE!) — who desire these such changes. And, a Cold War in which, this time, it is:
b. Status quo-dependent/status quo ante-desiring individuals and groups — and similarly-dependent/desiring states and societies — thus threatened (and often "downgraded") by these such "revolutionary changes" — who seek to "contain," and/or to "roll back," same; herein, seeing as the anti-change "conservative" entities that they wish to protect (again, think R2P?) those individuals and groups — and those states and societies (AGAIN IMPORTANT: WHEREVER IN THE WORLD THAT THEY MIGHT BE!) who do not want these such changes.
From this such perspective, to see today's New/Reverse Cold War (and certain "legal" matters relating to same?) (a) in much the same way that Hans Morgenthau saw the Old Cold War of yesterday (but reversed) and with (b) R2P now being added for the "transformative" purposes of the victors of the Old Cold War (but, inadvertently, supporting the opposing side also today):
" … Thus the Cold War has not only been a conflict between two world powers but also a contest between two secular religions.
And like the religious wars of the seventeenth century, the war between communism and democracy does not respect national boundaries. It finds enemies and allies in all countries, opposing the one and supporting the other regardless of the niceties of international law. Here is the dynamic force which has led the two superpowers to intervene all over the globe, sometimes surreptitiously, sometimes openly, sometimes with the accepted methods of diplomatic pressure and propaganda, sometimes with the frowned-upon instruments of covert subversion and open force.” (See the very top of Page 429 of the Vol. 45, No. 3, Apr. 1967 "Foreign Affairs" article by Hans Morgenthau entitled "To Intervene or Not to Intervene."
Thought — Based on the Above:
In the New/Reverse Cold War of today — much as in the Old Cold War of yesterday — finding enemies and allies in "all countries," this seems to have remained the same. (Much as was the case with the religious wars of the 17th century?)
However, with R2P now added, intervening so as to "provide for, rescue, support, etc." these such groups, this has now been sanctioned, via R2P, by a "law," which can be used effectively by both sides?
As to the matters that I present in my initial comment above, does R2P (Responsibility to Protect) thus overturn/make obsolete the legal "sovereignty" matters decided by the Peace of Westphalia in 1648?
Here is the last sentence from our article above:
"The time is now for the United States to take advantage of its standing, reputation, and history of following and shaping the rule of law to develop a comprehensive lawfare strategy—to counter our adversaries’ strategic and military objectives while enabling the accomplishment of our own—and prepare its military legal advisors to engage in counter-lawfare."
Question — Based on the Above:
If the U.S./the West's — enduring — strategic and military objectives are similar to those noted below (taken from the Old Cold War "surrender document"/the Old Cold War "peace treaty," to wit: the 1991 "The Charter of Paris for a New Europe,” signed by the U.S./the West and the Soviets/the communists at the end of the Old Cold War):
"We undertake to build, consolidate and strengthen democracy as the only system of government of our nations.” (See Page 3.)
“Human rights and fundamental freedoms are the birthright of all human beings, are inalienable and are guaranteed by law. Their protection and promotion is the first responsibility of government. Respect for them is an essential safeguard against an overmighty State. Their observance and full exercise are the foundation of freedom, justice and peace.” (Also see Page 3.)
“Freedom and political pluralism are necessary elements in our common objective of developing market economies towards sustainable economic growth, prosperity, social justice, expanding employment and efficient use of economic resources.” (See Page 4.)
And if our opponents — enduring — strategic and military objectives are diametrically opposed to the above,
Then how, exactly, are our lawyers to "develop a comprehensive lawfare strategy — to counter our adversaries’ strategic and military objectives — while enabling the accomplishment of our own?
In my comment immediately above, it would seem that democracy, human rights, freedom and political pluralism is what our legal strategy — today and going forward — (a) should be based on and (b) must be made to serve. But is this correct?
As to this such question, let us, once again, begin by looking at the concluding paragraph of our article above:
"The time is now for the United States to take advantage of its standing, reputation, and history of following and shaping the rule of law to develop a comprehensive lawfare strategy—to counter our adversaries’ strategic and military objectives while enabling the accomplishment of our own—and prepare its military legal advisors to engage in counter-lawfare."
Now, let us look at the following discussion — re: such things as U.S./Western standing, reputation and history — from a different perspective: that of liberalism:
"This projection is entirely too rosy. For, while 'liberal democracy' is an adequate description of the transformations of the last half-century, and provides a general outline to non-Western states on how to become more western, it offers no compelling guidance to Western states on how to resolve their internal political problems. In other words, 'liberal democracy' may bring states into modernity, but it provides few resources to resolve the internal conflicts of modernity.
Domestic debates on matters of policy illustrate this truth. At various points in American history, a majority of Americans have rejected various initiatives that would advance individual freedom. Today, the issues at question are gay marriage and legalization of drug use. Not so long ago, the issues were abortion and civil rights. Trace them all the way back to America’s first century, and the biggest issue in American history — slavery — fits the mold.
In each case, there was a conflict between the democratic will and the prescription of liberalism. And in each case, liberalism won out, though by various means: war, legislation or Supreme Court decisions. Given the consistent progress of liberalism (with occasional aberrations like prohibition and gun bans), it has become possible to tell American history as the advance of liberalism. With the election of Barack Obama, this story will become the court history of America.
This story represents the triumph of liberalism over democracy, the triumph of law oriented to ensure individual freedom over mere popular will. The resulting political theory is 'liberalism,' not 'liberal democracy.' Consider an objection: It is unfair to conclude that the progress of liberalism contradicts democracy. Democracy merely answers the question 'rule by whom?' and bears no responsibility for the positions adopted by the people.
This objection has a superficial plausibility. The problem is that the fundamental principle of democracy is the sovereignty of the people, a principle overthrown by liberalism. Liberalism claims a comprehensiveness such as to occlude accounts of sovereignty altogether. Under liberalism, the law of nature — the inalienable rights of individuals — is sovereign, and any violation thereof is sufficient justification for revolution. Liberalism, then, is not a mere set of priorities to be enacted by an alternative sovereign — be it a monarch, an aristocracy or the people. Liberalism is itself sovereign. Thus the dictum of liberalism — ours is a government of laws, not of men."
(See the October 24, 2008 article "Johnston: Liberalism, Sovereignty," by Peter Johnson, in "Yale Daily News."
Bottom Line Question — Based on the Above:
Today, as in times past, many societies — democratic and non-democratic to include those in the the Greater Middle East, China, Russia and even here in the U.S./the West — seem to be "at war" with liberalism.
Thus, today, as in the past, "shaping the rule of law," this must be done so as to provide that "liberalism" — not democracy, authoritarianism, etc., etc., etc. — "wins?"