Musharraf Adopts Bush-Cheney Doctrine of "Lawfare"

Islamabad -- One of the curious aspects of General Musharraf's speech last night (by the way, it is General, not President, as he first annulled the constitution and then invoked one of its provisions to declare an Emergency, acting not as president but as Chief of Army Staff), at least to this observer, was the general's thoroughly un-self-conscious invocation of two major threats to the security and integrity of Pakistan: terrorism and "judicial activism." It did not seem to occur to the general that, to some observers, even flawed or over-reaching attempts by duly constituted bodies to uphold the law might not be equivalent to mass murder. Judging by the General's actions, judicial activism is a much more sinister and immediate threat than terrorism, as all of his actions since yesterday have targeted the former rather than the latter. Indeed Musharraf's agents managed to pirate the codes to prevent Geo TV from uploading its programs to satellite, while Maulana Fazlullah's FM station in Swat continues to broadcast calls for jihad without impediment.

Opposing "judicial activism" is one of the rallying cries of the American right. Initially this was simply a cover for racism, as the most salient examples of "judicial activism" were Brown vs. Board of Education and other decisions by the Warren Supreme Court overturning American apartheid. Over time, however, the term began to cover a larger protest against attempts to extend the rule of law to the disadvantage of the powerful.

Not until the Bush administration, however, was this political code word integrated into the National Security Doctrine of the United States. Scott Horton of Harper's, writing on "Bush's War on the Rule of Law" describes how the attack on judicial activism entered national security doctrine through the concept of "lawfare":

According to Major General Charles J. Dunlap Jr., now the Air Force’s deputy judge advocate general, lawfare is the “strategy of using or misusing law as a substitute for traditional military means to achieve an operational objective.” As the neoconservative lawyers David Rivkin and Lee Casey have put it, lawfare aims to “gain a moral advantage over your enemy in the court of world opinion, and potentially a legal advantage in national and international tribunals.” The concept, which has been discussed in the Federalist Society and at National Review Online, became doctrine in the March 2005 National Defense Strategy of the United States of America: “Our strength as a nation state will continue to be challenged by those who employ a strategy of the weak using international fora, judicial processes, and terrorism.” Note the equation of “international fora, judicial processes, and terrorism.” In other words, turning to courts for the enforcement of legal rights, appeals to international tribunals, and terrorism are seen as the elements of a single consistent enemy strategy. In the strange reasoning of the lawfare theorists, lawyers who defend their clients, or who present their claims to domestic or international courts, might as well be terrorists themselves.

This could serve as a cogent summary of the doctrine presented by President Musharraf. Unlike Bush, Musharraf at least had the decency to announce to the whole world that he was placing the constitution "in abeyance" and arrogating all power to his sole person. The Bush administration prefers to promulgate shadowy memoranda, signing statements, and Humpty-Dumpty like amendments to the meaning of common words. Since the courts are instruments of terrorists (and can even be used to demoralize the security forces!) counter-terrorism logically requires the abolition of the rule of law.

Comparing England and India in the 19th century, Karl Marx wrote, "The country that is more developed industrially only shows, to the less developed, the image of its own future.” But the 20th century refuted Marxism through praxis, giving birth to new laws of history. In the 21st century, the country that is less developed institutionally only shows to the more developed the image of its own future.

Update: Uncanny echoes from the Borowitz Report:

In what he described as “an emergency mission to help a key ally in the war on terror,” President George W. Bush flew to Islamabad today to give General Pervez Musharraf tips on how to eliminate democracy.

Speaking to reporters aboard Air Force One, Mr. Bush said that while he commended General Musharraf’s impulse to eliminate democratic institutions, he felt that the military strongman was going about it the wrong way: “When you’re getting rid of democracy, the last thing you want to do is tell people you’re doing it.”

Worth a quick read.