Privacy SOS

Ideas and ideologies can have the most power to do good or harm when they are supported by mainstream, legitimate organizations and people who represent them. That's why the “lawfare” argument is so dangerous. Not only do outright Islamophobes advance the argument in the shadows through their “counter-terror” training organizations; representatives of mainstream groups like Harvard Law School and the Brookings Institution make the same case, disguising their anti-civil liberties rhetoric using more educated language.

What is “lawfare,” anyway? According to “Manufacturing the Muslim Menace,” a Political Research Associates report, it is the idea that “Muslim extremists use litigation, free speech and other legal means to advance a subversive agenda and silence opponents — using democracy to subvert democracy.” This framework  threatens American ideals about justice and democracy. “Lawfare” suggests that when used to combat Islamophobia or to assert Muslim-Americans' civil rights, the law is a war tactic.

One implication of this ideology is that groups like the ACLU, the Council on American-Islamic Relations (CAIR), and the Islamic Society of North America (ISNA) — all civil rights organizations — are complicit in terrorism because they defend the rights of Muslims (and other Americans) against state operations like warrantless wiretapping, illegal surveillance, and blacklisting, and counsel Muslims  that they have a right to see a lawyer before talking to the FBI.

In their report on the Islamophobic trainings for law enforcement, trainings that are paid for with taxpayer dollars, the Political Research Associates found that “lawfare” constitutes a pillar of the wrong-headed ideology fed to police and first responders nationwide. 

What kind of organizations advance this argument? Security Solutions International (SSI), for one. Henry Morgenstern, the head of SSI, has called CAIR “a Hamas group with strong ties to the Muslim Brotherhood.” He said that people who accuse his organization of Islamophobia are in “service of organizations like CAIR that mount Lawfare on US institutions hoping to intimidate them. They call everyone a bigot and use the courts as they use knives to behead people, but in reality the only bigots are this 5th column and the Americans that serve them.” 

Morgenstern goes on to say: “The so-called Islamophobes can’t be blamed for the fact that nearly 17,000 terror attacks have been committed by the “religion of Peace” since 9/11.”

His SSI organization trains thousands of law enforcement officials every year, and collects taxpayer funds for its services, even though its trainings have been explicitly denounced by the DHS and FBI as counter-productive and riddled with misinformation. But scarily, local cops are taking his anti-Muslim rhetoric to heart. In the same interview (quoted above), he says:

“I have traveled around the country and I still get a tremendous feeling when a police officer, or fireman comes up and tells me how one of the trainings they attended changed their thinking. I get a real thrill from that.” 

As SSI teaches local cops so-called “counter-terror” skills, it insinuates that organizations like CAIR and the ACLU are engaged in support for terrorism as a result of their legal advocacy on behalf of Muslim Americans. But this obscure organization and others like it, with names like “International Counter-Terrorism Officers Association” and “The Centre for Counterintelligence and Security Studies,” aren't the only ones suggesting that defense of legal rights opens the door to terrorism.

A blog called “Lawfare” advances similar arguments in support of torture, indefinite detention and other crimes, absent the use of obviously racist language and depictions of Islam as an “evil” religion. The Lawfare blog is run by Jack Goldsmith, a man who worked in the Office of Legal Counsel for the Bush administration and was partially responsibly for legal arguments in support of torture, indefinite detention and stripping people of their habeus corpus rights. Goldsmith now teaches at Harvard. One of his collaborators on the blog, Benjamin Wittes, works for the Brookings Institution, a well-respected Washington think-tank. They describe the blog as follows:

The name Lawfare refers both to the use of law as a weapon of conflict and, perhaps more importantly, to the depressing reality that America remains at war with itself over the law governing its warfare with others. 

The “lawfare” ideology is gaining ground in the United States. Brooke Goldstein, an attorney and frequent pundit on Fox News, runs an organization called The Lawfare Project. The Middle East Forum and the Federalist Society co-sponsored a 2009 conference in Washington D.C. called “Libel Lawfare: Silencing Criticism of Radical Islam.” The conference was organized by Daniel Pipes, longtime anti-Muslim activist and commentator. Pipes is an anti-Islam crusader. He once wrote:

Perhaps alone in the coterie focused on the Islamist threat to Europe, I am cheerful these days. That's because I see the anti-Islamist reaction growing even more quickly than the Islamist threat itself. The rise of respectable political parties primarily focused on the issues surrounding Islam – with Geert Wilders' Party for Freedom (PVV) in the Netherlands at the forefront – is perhaps the single most encouraging sign…

Geert Wilders has called the Quran a “facist book” and likened it to Mein Kampf.

When obscure, blatantly racist organizations like SSI advance the lawfare argument, it holds less water because of its source. But when the Federalist Society, a Harvard law professor and a Brookings fellow are endorsing similar arguments, they gain a disturbing air of legitimacy. 


Does a robust defense of civil liberties constitute support for terrorism? We don't think so. Neither did the founders of our Constitutional system of government. Making this argument legitimates police and law enforcement spying on organizations like CAIR and the ACLU, because if the defense of civil liberties can be read as a defense of terrorism, those organizations are suspect of material support for crimes. This is a profoundly anti-democratic notion, and it must be vigorously opposed.

© 2021 ACLU of Massachusetts.