Is Lawfare for Lawyers?
A growing body of scholarship is engaged with the threat of hostile “lawfare” or “legal warfare.” This scholarship is driven by lawyers, legal professionals, and individuals affiliated with military and government legal advisory communities. Almost all this scholarship—rightly—bemoans the lack of formal government strategy to counter the lawfare threat while calling for proactive solutions.
Lawfare is certainly both a serious threat and a valuable tool for U.S. adversaries. It is already used to attain advantage within great power competition and is also likely to play a valuable role in deciding future inter-State conflict. Though the legal community has led the way in identifying this problem, it cannot and should not go it alone in countering the threat. In fact, it may be best that the development of U.S. counter-lawfare strategy and subsequent operationalization is taken forward by a more varied coalition of voices and operators with legal professionals providing a supporting—but not a leading—role.
Lawfare: Understood but Unaddressed
First coined as a term—at least in Western commentary—over twenty years ago, today “lawfare” is broadly understood as the “[use or misuse] of law as substitute for traditional military means to achieve an operational objective.” Western practical military experience of hostile lawfare is especially shaped by decades of counterterrorism (CT) and counterinsurgency in the Islamic world, where non-State armed groups used what Orde Kittrie termed “compliance leverage lawfare” to constrain U.S. and allied freedom of action in otherwise asymmetrical fights.
But U.S. State adversaries and competitors such as the People’s Republic of China and the Islamic Republic of Iran have also become skilled at deploying lawfare to achieve strategic goals within great power competition. Lawfare objectives pursued by these States and others go far beyond those of terrorist groups. Such objectives may include efforts to: non-kinetically capture governments, institutions, and judicial bodies; determine territorial control; suppress foreign dissidents; and influence international strategic realignment. Lawfare might even be deployed as part of inter-State kinetic conflict for potentially battle-altering impact.
Given its potential impact and scope, therefore, it remains surprising that there is little in the way of a whole-of-government strategy to counter and prepare for lawfare threats. Work has been done in the scholarly community and, in some cases, at the combatant command level. But an effort in the U.S. Senate to include a national-level reporting requirement in the 2025 National Defense Authorization Act (NDAA) ultimately failed to become law, and national level strategy on the issue remains elusive. Nevertheless, it is near certain that the problem is not going away. Whether it comes through prudent planning or out of situational necessity, lawyers, operators, and policymakers are almost certain to need effective countermeasures and strategies to compete effectively with hostile State adversaries. For now, however, there is a gap.
Lawyers Lead the Way! But Should They?
Lawyers, legal academics, and other members of the (usually military affiliated) legal community have tried to step into the breach. Having first defined the concept, these voices have raised lawfare’s importance to U.S. adversaries, and its effectiveness as a tool of State power used to challenge U.S. interests.
That lawyers are leading the current discourse is unsurprising, because lawfare fundamentally appears to impact their subject matter expertise, i.e., legal issues. Meanwhile, many U.S. government departments are also preparing for more robust great power competition (or even conflict) with near-peer State powers, while lowering the priority of CT and counter-insurgency missions.
Within this context, lawyers quite understandably may wish to ensure they are directly contributing to mission success, with lawfare issues representing a serious threat to U.S. objectives. But while raising awareness about lawfare is important, effective counter-lawfare may be best driven by teams drawing on skills found outside of the legal community. Moreover, it is also worth considering how involved lawyers should be in any future lawfare enterprise.
Law as Warfare or Warfare with a Legal Theme?
To help address who should lead on developing and implementing counter-lawfare efforts it is worth considering a series of questions that, ideally, should be answered as part of a joined-up strategy. Particularly importantly, it is useful to consider whether lawfare is best conceptualized as a set of issues pertaining to “law” and “legal” matters, or whether it is instead better understood as a form of warfare that happens to have a legal flavor.
This framing is relevant, because it may impact subsequent considerations, such as available policy levers and questions about who should be responsible for developing responses. Though this issue has not been formally addressed in U.S. policy, revealed preference would suggest that at present the scholarly and practitioner community principally view lawfare as being a legal problem to be addressed by lawyers and legal advisors. As noted above, the vast majority of scholars and practitioners writing about the issue today are drawn from various parts of the legal community. Meanwhile, the limited lawfare initiatives extant within or adjacent to the U.S. government (such as the INDOPACOM counter-lawfare initiative) are managed and coordinated by legal offices.
But whereas—at least in the Western context—it is legal professionals (especially those linked to the military) that are most interested in lawfare, actual legality and lawfulness are arguably incidental to effective lawfare. This is because lawfare is fundamentally about achieving real world, physical and tangible objectives. Achieving that intended effect is paramount; the legality of the means is only relevant to the extent that it supports the effect.
While there are many different activities that could qualify as lawfare, all of them ultimately achieve their required real-world effects by causing real-world humans to act or refrain from acting in ways that are advantageous to the lawfare user. When broken down this way, it is possible to view lawfare as a specialist strand of what the Department of Defense (DoD) terms “psychological operations” (PSYOPs) or “military information support operations” (MISO), both of which are concerned with influencing or changing the behavior of target audiences for military effect. Exploitation of laws, legal systems, and institutions can be a particularly effective way of coercing or influencing human behavior because of the legitimacy that laws and the perception of legality can confer, not to mention the illegitimacy that may be associated with operating outside the law. But the battlefield or strategic effect of lawfare remains more akin to an issue of coercive information operations and information warfare than an issue of law or the practice of law. In other words, lawfare is probably more a “warfare” problem than a “law” problem.
The conclusion—that lawfare should be seen as more about warfare and strategic competition than about law, legal doctrine, and lawyering—is strengthened further given developments in U.S. irregular warfare doctrine. Historically, U.S. doctrine (including Doctrine for the Armed Forces of the United States, and JP 3–0, Joint Operations) defined irregular warfare as a violent struggle among State and non-State actors for legitimacy and influence over the relevant population(s).
In 2023, however, irregular warfare was redefined in joint doctrine as “a form of warfare where states and non-state actors campaign to assure or coerce states or other groups through indirect, non-attributable, or asymmetric activities, either as the primary approach or in concert with conventional warfare” while in 2022, the U.S. Army defined it as the “overt, clandestine, and covert employment of military and non-military capabilities across multiple domains by state and non-state actors through methods other than military domination of an adversary, either as the primary approach or in concert with conventional warfare” (emphasis added). These definitions can quite comfortably encompass lawfare. It is a non-military capability able to impact multiple domains and, when deployed successfully, is used to coerce States or other groups without resorting to military domination.
In short, lawfare is arguably best understood as a subcategory of PSYOPs or information operations conducted within an irregular warfare paradigm. Interestingly, this conclusion is not dissimilar to how the United States’ primary lawfare adversary understands lawfare. For the People’s Republic of China, legal warfare is included as part of the oft-cited “Three Warfares” concept (officially incorporated into Chinese military doctrine in the early 2000s) which together with lawfare encompasses “public opinion warfare” and “psychological warfare.” Meanwhile, the Chinese Communist Party operates within a conceptual framework that blurs distinctions between war and peace, while viewing warfare as a broad struggle which can incorporate a wide range of nonviolent actions, to include the coercion and information warfare envisaged within conceptual frameworks such as Three Warfares.
Counter-Lawfare as Irregular Warfare
If lawfare is more about warfare and strategic competition than about law, legal doctrine, and lawyering then this conceptualization may further guide considerations regarding who should be responsible for countering it and what policy levers should be available to do so.
Most importantly, lawfare must be more than just a hobby horse of the legal community. As a form of hostile irregular warfare, counter-lawfare requires a whole of government response, combining elements from government departments including Defense, Justice, State, Treasury, and the Intelligence Community. The DoD—and especially the Office of the Assistant Secretary of Defense for Special Operations and Low-Intensity Conflict (ASD SO/LIC)—is probably best placed to lead and cohere a response, given lawfare’s importance to adversary strategies in both competition and conflict, and its arguable characterization as irregular warfare.
At the level of operationalizing responses to hostile lawfare, meanwhile, there is a clear need for fluid and agile efforts backed by an array of skills much broader than those likely to be found in judge advocates and legal advisors alone. Indeed, effective counter-lawfare is likely to require combinations of skills that would be unusual to find in single specializations or departments. In addition to legally trained personnel, counter lawfare teams should draw on military and civilian intelligence analysts, information-operation and media-engagement professionals, cultural and linguistic specialists.
Irregular warfare operators, meanwhile, would be particularly well placed to cohere and lead these teams. This is because these individuals are familiar with operating in other irregular warfare contexts and are also often particularly capable at cohering diverse teams that blend skills sets (whether military or civilian) and draw on local nationals, host nation and partner forces, deep subject matter experts, and cultural specialists. Irregular warfare operators are also likely to be particularly familiar with developing creative, unconventional, or completely novel solutions to achieve real-world effect with little or no military or kinetic application of force.
An Ethical Firewall?
In addition to perhaps not being best placed to spearhead U.S. counter-lawfare efforts, it is even worth carefully considering the extent to which lawyers and legal professionals are well placed to conduct counter-lawfare activity at all. Clearly in many cases there is a need for professional legal understanding and experience. Legal personnel may be useful in, for example, spotting: specious adversary legal interpretations; foreign bids to develop new laws (or twist existing ones) that place adversaries at an advantage; law of armed conflict “traps” that could place U.S. forces in a legally or politically compromised position and be exploited to undermine popular legitimacy; and so on. Particularly when combined with trained intelligence personnel, lawyers could form a “lawfare early warning” service, helping mitigate and respond to potential legal “attacks.”
Counter-lawfare should not, however, be just about spotting issues, being objectively legally correct, or winning in the courtroom. Lawfare, as discussed above, is about achieving battlefield effect which is in turn achieved by causing real-world humans to act (or refrain from acting) in a desired manner. Doing so does not always (or even usually) require the most accurate legal argument or ethical solutions. Instead, the primary requirement is the narrative or argument that is most likely to move a chosen target audience to act in a preferred way. Often, lawfare’s effectiveness may well derive from the legitimacy that audiences ascribe (correctly or not) to a course of action that appears to be “legal.” But this does not require actual legality.
At some point, therefore, any counter-lawfare role must come into contact with the existing and principal roles of military judge advocates and government legal advisors. While in many cases, counter-lawfare may simply about “correcting the legal record” or calling out bad-faith legal activities, this can only be a part of an effective counter-lawfare strategy and misses the lawfare key terrain that includes public opinion, personal belief, and the cognitive domain.
The task of the counter-lawfare operator, therefore, is about preventing the hostile lawfare from compelling or constraining its target. Asking legal professionals and departments to dual hat as legal advisors and attorneys, bound to accurately interpret “black letter” laws, policies and rules of engagement on the one hand, while on the other hand performing duties of a “chief lawfare officer” tasked with competing strategically with foreign adversaries trying to influence any number of target audiences risks serious conflicts of interest that may well result in less effective legal advice, less effective counter-lawfare, or both.
Moreover, the more U.S. government lawyers are seen as performing lawfare-related tasks, the more U.S. legal argumentation and commitment to rule of law will be subject to skepticism. Indeed, by linking the legal community too closely to the conduct of lawfare it is possible that adversaries could actively work to introduce such doubts, thereby degrading perceptions of U.S. commitment to rule of law and the legitimacy of its actions, in other words, actively and ironically opening the United States up to further lines of attack.
This is not at all to argue that legal professionals should be entirely uninvolved in implementing—much needed—lawfare efforts. Legal expertise will be valuable as part of the broader teams described above. There is, however, a need for a robust firewall between those performing legal work—work that is the traditional purview of government lawyers—and those conducting lawfare operations. This likely means that legal departments should not be responsible for counter-lawfare and may need to go as far as placing restrictions on whether and when personnel can move between legal advisory roles and lawfare roles. Without these restrictions, there is a risk of the opposite of a force multiplier effect: compromised legal advice; ineffectual and constrained counter-lawfare; personnel faced with impossible conflicts; and degraded U.S. legitimacy.
Conclusions
Lawfare is a real problem that the U.S. and allies should address urgently. The legal community has done vital work raising awareness of the threat and, in the absence of policy, is working to fill gaps in the response. But it is past time to cohere a broader coalition of departments and specialists who can more effectively and agilely respond to lawfare as a form of irregular warfare or PSYOPs. Solutions must step away from training up lawyers as first responders and should instead draw on solutions from the irregular warfare community, as well as a host of intelligence, cultural, and information operations professionals.
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Crispin Smith is an attorney based in Washington DC and specializing in national security law. He is also a co-founder of the Militia Spotlight platform.
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: Feyza Yıldırım via Unsplash
