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Lawfare Conference Takes Aim at Terrorists' Efforts to Wage "Legal Jihad"

05/16/2010 05:12 am ET | Updated May 25, 2011

2010-03-17-ab501.jpg Last Thursday The Lawfare Project, a non-profit founded by attorney Brooke Goldstein (pictured above) to confront "lawfare" - which Goldstein defined in her opening remarks as "the use of the law as a weapon of war" -- held a conference at the New York County Law Building in downtown Manhattan to examine ways terrorists and terror-sponsoring regimes and networks are trying to use Western democracies' legal systems to fight a jihadist war against the citizens of these very countries.

Some of the tactics terror groups are using include filing nuisance lawsuits against writers who are critical of Islam and training terrorists to claim, upon capture, that they are being abused/tortured in order to tie up their prosecutions in the U.S. legal system and fight a public relations war for world opinion.

In addition to raising awareness about these trends, the conference addressed some possibilities for combating "legal jihad."

Goldstein assembled a remarkable constellation of legal lights. Participants included former New York District Attorney Robert M. Morgenthau; former Canadian Justice Minister and member of the Canadian Parliament Irwin Cotler; Gabriella Shalev, Israeli ambassador to the United Nations; Utah Attorney General Mark Shurtleff; former U.S. Ambassador to the United Nations John Bolton; Dore Gold, former Israeli ambassador to the United Nations; Dr. David Scharia, former senior deputy of the Israeli attorney general's office; Marvin Kurtz, a member of the national council of the B'nai B'rith League for Human Rights and partner in the firm of Dale, Streiman & Kurz LLP; James Taranto, editorial board member of the Wall Street Journal and editor of opinionjournal.com; former BBC Legal Correspondent Joshua Rozenberg; and Anne Herzberg, legal advisor to NGO Monitor, a new non-profit dedicated to promoting accountability on the part of human rights organizations that weigh in on the Israeli/Palestinian conflict.

In his remarks concerning why Lawfare is a threat, Cotler focused on the United Nations' use of legalistic-sounding language to single out Israel as a pariah state. He opened his remarks by pointing out that this kind of lawfare "is not a new phenomenon" and that this year marks the 35th anniversary of the United Nations' infamous "Zionism is Racism" resolution, which "gave the abomination of anti-Semitism the appearance of international legal sanction."

He pointed to the egregious double standard practiced by the United Nations Human Rights Council, which has dedicated itself almost exclusively to the condemnation of Israel, while countries like China, Sudan, and Iran enjoy "exculpatory immunity."

It is a stinging irony, Cotler contended, that the United Nations launches its distorted, out-of-context gang-ups on Israel under the cover of international law, when Israel was the first nation "to apply universal jurisdiction, in the Eichmann case."

The result of this uneven and sloppy application of principles of international law by singling out one member state for disproportionate and often unjust condemnation is not merely discrimination against Israel, but a deterioration of respect for international law, according to Cotler.

"It diminishes the credibility of the United Nations," he said. "It diminishes the credibility of international law."

Likewise, Cotler argued, the fallacious characterization of Israel as an "apartheid state" in pseudo-legalistic language at events like the 2001 United Nations World Conference Against Racism in Durban, known as 'Durban I' undermines the genuine struggle against racism worldwide.

"It insults and assaults the genuine struggle against racism to make that slanderous analogy between Israel and South Africa [under apartheid]," he said.

Mark Shurtleff, Utah's attorney general, also spoke about the treatment Israel receives in the United Nations, specifically the Goldstone Report.

He took issue with this report, which was commissioned by the United Nations in the aftermath of Operation Cast Lead, Israel's invasion of Gaza last winter to halt Hamas's rocket attacks on Israeli civilians.

The report, which Shurtleff contended was highly critical of Israel while barely criticizing Hamas, is an example of the effort to "misuse [international] law for political ends."

First, the report did not take into account the defensive nature of Israel's military operation, Shurtleff contended. Second, the report was frequently factually inaccurate or omitted facts and context essential to a true understanding of the situation.

"Nobody in the history of warfare--from calling Hamas leaders ahead of time to get their families out, to dropping bomblets to get families out before dropping bombs to get rid of the weapons" has made such a concerted effort to avoid civilian casualties as the Israel Defense Forces did during this operation, Shurtleff asserted.

"That was an extraordinary effort by Israel [to avoid causing civilian casualties in a war situation,]" he said. "Mr. Goldstone made it sound like Israel deliberately went after civilian infrastructure - and that is a vicious slander," he said.

David Harris, director of INSIGNIS Strategic Research Terrorism Project and former chief of strategic planning for Canada's security intelligence service, on the panel on "Legal Efforts Aimed at Inhibiting the Right and Ability of Democracies to Defend Against Terrorism," offered some questions to the audience:

"Would Hitler's assassination have been an international war crime?

"What about the interception of Japanese and German communications, including in the years before World War II?

"Would each of the Japanese and German prisoners of war been entitled to the range of legal provisions of the people at Guantanamo?

"Could we have won the war" he asked, if standards of international law that exist today, or that some argue should exist, were applied to the allies during World War II, or would Hitler's "work" towards the Jews and others been completed?

Malvina Halberstam, professor of law at the Benjamin N. Cardozo School of Law, also speaking during the section of the conference on jihadists' efforts to use the legal system to inhibit democracies' ability to defends themselves, discussed the Christmas Day bomber, whose explosive device malfunctioned on a plane from Amsterdam to Detroit.

In that much-publicized case, the would-be bomber, Umar Farouk Abdulmutallab, was questioned for 50 minutes before receiving a Miranda warning, after which he refused to cooperate.

Professor Halberstam argued there is legal precedent to support the argument that police or national security officers can question terrorists without reading them a Miranda warning. She cited a case in which the Supreme Court established a "public safety exception to Miranda." In that case, police officers arrested a robbery suspect they had reason to believe had hidden a gun in a supermarket. They demanded the whereabouts of the gun before reading him his rights. The Supreme Court upheld their right to have first questioned him about the gun's whereabouts before reading him his rights on the grounds that concern for public safety trumped his right to remain silent.

Halberstam argued the precedent would apply in a case examining the law enforcement officers' decision to stop questioning Abdulmutallab.

"The likelihood that other planes were in danger was at least as strong as the likelihood a customer might discover the gun" in the supermarket case, she said.

Dr. David Scharia, former senior deputy for the attorney general's office of Israel, talked about the "misuse and abuse of the criminal justice system by terrorists and their supporters."

A unique challenge of gathering intelligence from a terrorist foot soldier, or "a person who is willing to commit suicide" is that that person, however despicable his intended actions, believes in his cause and "is not corrupt [so] it is hard to offer them an incentive," he said.

Nevertheless, in 1999 the Israeli Supreme Court ruled that the use of violence is illegitimate in gathering intelligence from terrorists. This ruling has resulted in stagnated investigations and, ultimately, enabled terror attacks to take place that would probably not have otherwise, according to Scharia.

"Sadly, terrorists know there are sacrifices we are willing to make to adhere to the principle" of nonviolence, he said, and as a consequence, "There were times [during my tenure in the attorney general's office] people who had information that could have prevented attacks did not talk, and the attacks took place" and killed and injured innocent Israelis.

Claims of abuse or torture by terrorists are often problematic because terrorists, as a result of their personal psychology, often see themselves as victims, no matter the reality, according to Scharia. Additionally, terror networks typically instruct trainees to claim torture, and even to provoke physical harm at the hands of their captors, so as to make legal and moral claims against their captors, such as the Americans or Israelis.

This tactic of tempting the captor to engage in physical violence so that the detainee can try to claim the moral high ground and wage a legal battle was initiated by the Irish Republican Army (IRA) in the 1960's, according to Scharia. Today, Islamist terror groups have explicitly adopted the tactic in training manuals.

These manuals say things like, "They will not [voluntarily] harm you; they must be tempted to do so," Scharia said.

Despite these serious obstacles, counter-terror efforts must, in Scharia's view, remain above reproach.

"Commitment to civil liberties is a fight we cannot afford to lose," he said.