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.
Congress has already passed laws that permit victims of human rights abuses—such as terrorism, torture, and trafficking—to pursue private remedies, but these avenues are often impeded for a variety of reasons. Victims are often immigrants who lack an awareness of their rights or the means to access the U.S. legal system. Some tort victims who would otherwise have standing lack evidence that is often in the possession of the U.S. government. Sovereign immunity also poses challenges: the People’s Republic of China has in recent years regularly hidden behind sovereign immunity when faced with claims that it or its agents have stolen intellectual property.
However, these impediments could be addressed. Congress could, and should, modify existing laws to make it more feasible to bring litigation against quasi- or sub-state actors. Congress should likewise make it easier for plaintiffs to collect judgments against subsidiaries or loosely affiliated entities that hide behind sovereign immunity.
Some evidence of human rights abuses may be classified, but it may be possible to declassify much of it without compromising sources or methods. Other information that could be used as evidence is unclassified; some is overclassified (meaning that it bears a classification but probably should not, for any number of reasons). Congress could compel agencies to create mechanisms to share information that is not classified and to declassify information that can feasibly be made public, to make it available to litigants pursuing remedies where the litigant’s interests are aligned with those of the United States.
The most complicated aspect of this approach is creating an effective mechanism—or several mechanisms—within the Executive Branch that could identify information that plaintiffs might utilize as evidence in their litigation. First, the agencies would have to know what information might be helpful, which will be like searching for needles scattered across several haystacks. Prospective plaintiffs will need lawyers who can assess what sort of evidence could be relevant. The trial lawyers would then need to consult with agencies regarding an appropriate search method. Next, there would be the matter of sorting classified and other sensitive information. Then, there would be the means of disclosing such evidence to prospective plaintiffs. Such a process would necessarily involve several layers of scrutiny and doubtless be colored by the distaste many government lawyers already have for plaintiffs’ attorneys. But it would likely result in both more judgments—and collections—against malign actors, such as Iran.
We rarely think of civil law as serving an essentially regulatory function, but that is precisely what it does. Personal injury suits, for example, operate as a second layer of safety regulation, thereby deterring harmful conduct by punishing such conduct when it occurs. If civil law can be used to regulate or restrain problematic actors, such as China, Russia, and Iran, and their proxies, then it is an option that ought to be pursued. The objective should be to move the lawfare fight to terrain more favorable by leveraging a U.S. advantage—our legal system. Even in targeted instances, this would bring the vast resources of U.S. private litigation to bear against U.S. national security threats, corporate espionage, and human rights abuses.
This work could begin with “low-hanging fruit.” There are families of victims of terrorist acts that are relatively well known, whose pursuit of justice the U.S. government could assist by sharing unclassified information with their attorneys. Similarly, agencies could disclose information about parties that have materially cooperated in or benefited from forced labor practices or human trafficking; many examples of such conduct are already well known, and disclosure efforts could begin with these.
This does not mean that the U.S. government can or should become the servant of trial attorneys. There are also many reasonable concerns about the limits of civil litigation as a tool, one of which is that plaintiffs tend to pursue the wealthiest defendants rather than those who do the most harm. Also, intelligence gathering and law enforcement have their own priorities, and they must ensure that any disclosure practices do not undermine their responsibilities. However, agencies should not overlook the potential for litigation efforts to advance U.S. interests and the interests of its citizens, including the possibility that civil litigation may reveal additional information that advances government investigations or is of interest to analysts.
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.
Andrew Doran was a member of the Policy Planning Staff at the U.S. Department of State from 2018-2021. He is currently a senior research fellow at the Philos Project.