What Is Lawfare?
Foundational Post No. 1
What Is Lawfare?
Klamath Basin Lawfare — Foundational Post No. 1
The term “lawfare” circulates widely in political commentary, frequently stripped of its analytical precision and reduced to a rhetorical charge. This archive uses it in a specific, documented, and academically grounded sense. Before this publication tracks a single case, files a single records request, or publishes a single exhibit, it is necessary to establish exactly what lawfare means, where the definition comes from, how it has been challenged, and why—properly bounded—it remains a legitimate and necessary analytical instrument.
I. The Origin: Law as a Substitute for Traditional Means
The term was introduced into formal strategic discourse in 2001 by Major General Charles J. Dunlap Jr., then-Deputy Judge Advocate General of the United States Air Force, in a paper delivered at the Humanitarian Challenges in Military Intervention Conference, hosted by the Carr Center for Human Rights Policy at Harvard University’s Kennedy School of Government.¹
Dunlap defined lawfare as:
“The strategy of using—or misusing—law as a substitute for traditional military means to achieve an operational objective.”
The definition is deliberately value-neutral. Dunlap was not describing something categorically illegitimate. He was identifying a strategic category: the use of legal process as an instrument of operational power, capable of achieving outcomes that would otherwise require conventional force, negotiation, or political capital. He subsequently elaborated this framework in a 2008 article in the Yale Journal of International Affairs, acknowledging that legal mechanisms can serve either constructive or destructive ends depending on their deployment.²
The key phrase is “substitute for traditional means.” The legal system, in this framework, is not primarily a venue for establishing truth or resolving disputes on their merits. It is a tool—deployable, scalable, and effective against a target who cannot afford to ignore it.
II. The Mechanism: Compliance-Leverage Disparity
In his 2016 work Lawfare: Law as a Weapon of War, published by Oxford University Press, legal scholar Orde Kittrie systematized Dunlap’s framework into operational subcategories with documented historical case studies.³ The subcategory most directly applicable to domestic regulatory and land-use contexts is Compliance-Leverage Disparity Lawfare.
The mechanism operates as follows:
Party A is a regulated entity—a farm, a water user, a rural business—that holds permits, operates under agency oversight, and has a documented legal and financial commitment to regulatory compliance. Departure from that compliance carries severe consequences: permit revocation, fines, injunctions, loss of operating authority.
Party B initiates or supports legal and administrative challenges against Party A. Party B’s objective is not necessarily to prevail on the merits of any given argument. The objective is to impose costs.
The disparity is structural:
Party A cannot walk away from the legal process without forfeiting the permits and authorizations their operations depend upon.
Party A must retain legal counsel, respond to discovery, appear at hearings, and manage agency relationships—indefinitely, and at full cost.
Party B faces no equivalent constraint. A challenge can be filed, withdrawn, amended, or re-filed at minimal expense relative to the cost it imposes on the target.
The result is asymmetric attrition. The legal system’s procedural architecture—designed to ensure due process—is inverted into a cost-imposition engine. Time, capital, and organizational capacity are drained from the target, regardless of the underlying legal merit of the challenge.
In domestic administrative practice, this pattern has an established parallel: the Strategic Lawsuit Against Public Participation (SLAPP), a term coined by legal scholars George Pring and Penelope Canan following their systematic study of retaliatory civil litigation.⁴ While SLAPP doctrine was originally developed to protect public participation rights against powerful institutional plaintiffs, the same structural asymmetry operates in reverse when administrative challenges are used against individual regulated parties who lack the resources of the challenging organization.
III. The Counterargument: The Term Has Been Weaponized
This is the objection that must be addressed before this archive proceeds.
A significant body of legal scholarship argues that “lawfare” is itself a politically loaded term—one that has been selectively deployed by state and military actors to delegitimize legitimate human rights litigation, war crimes accountability mechanisms, and judicial oversight of executive power. The critique deserves a precise statement.
Legal scholar David Kennedy, in his influential work Of War and Law (Princeton University Press, 2006), documented how legal framing has become inseparable from the conduct of modern war—used by all parties, including powerful states, to authorize violence, manage accountability, and shape public narrative.⁵ The implication is that “lawfare” accusations can function as a shield against legitimate legal scrutiny, not merely a description of abusive legal tactics.
Scott Horton, writing in the Case Western Reserve Journal of International Law, made this critique most directly: that the lawfare label has been applied opportunistically by actors who find legal accountability inconvenient, effectively stigmatizing human rights advocates and plaintiff-side litigants as bad-faith combatants rather than legitimate legal participants.⁶
Lisa Hajjar’s comparative analysis of Israeli and American military legal doctrines further demonstrated that the accusation of lawfare is frequently asymmetric—invoked against challengers of state power while the legally aggressive conduct of state institutions escapes the same characterization.⁷
This archive takes these objections seriously. They establish something important: the lawfare label, used imprecisely, is a rhetorical cudgel. Applied without evidentiary discipline, it can be used to pre-emptively delegitimize any legal challenge brought by any party the labeler dislikes. That is not analysis. That is advocacy dressed as terminology.
IV. Why the Framework Remains Valid—With Discipline
The scholarly critique of lawfare does not invalidate the concept. It defines the conditions under which the concept is analytically legitimate.
The Dunlap-Kittrie framework is valid when the following conditions are demonstrable from the record:
The procedural pattern is documentable. Filing frequency, withdrawal timing, and cost-imposition effects must be traceable through court records, agency dockets, and disclosed financial data—not inferred from political alignment.
The merit-to-cost ratio is assessable. Lawfare, properly defined, is distinguished from aggressive but good-faith litigation by the relationship between the legal arguments advanced and the procedural costs imposed. Cases that produce substantial legal costs while advancing novel, weak, or repeatedly rejected legal theories warrant scrutiny that cases litigated to clear, contested legal questions do not.
The compliance asymmetry is structural, not merely tactical. The defining feature of compliance-leverage disparity is that one party’s regulatory exposure prevents exit from the legal process while the other faces no equivalent constraint. This must be demonstrated, not assumed.
The pattern is longitudinal. A single aggressive legal challenge is not lawfare. A documented pattern—of challenges filed, withdrawn, refiled, or transferred across forums as prior venues close—is a different analytical object.
This archive commits to applying the framework under these conditions only. Where the record does not support a lawfare characterization, that will be stated. Where it does, it will be documented.
V. The Local Application: What This Archive Is
The Klamath Basin presents a documented environment for compliance-leverage disparity analysis. Water adjudications, federal regulatory proceedings, agency rulemaking, and multi-party litigation have run concurrently and sequentially in this region for decades. The cumulative burden on individual water users, agricultural operators, and local governments is measurable—in legal fees, foregone investment, administrative staff time, and operational uncertainty.
Klamath Basin Lawfare exists to track and document these patterns at the local level, under the evidentiary discipline described above.
This publication operates on a specific standard: direct public records and government receipts. Court filings, agency correspondence, permit records, administrative decisions, and official transcripts. No anonymous sourcing. No inference where documentation is available. No allegation unsupported by an exhibit.
The archive’s function is taxonomic and longitudinal. Individual legal actions are rarely self-explanatory in isolation. Patterns become visible over time, across cases, and across institutions. This publication intends to build that record—and to hold itself to the same evidentiary standard it applies to the conduct it documents.
Footnotes
¹ Dunlap, Charles J., Jr. “Law and Military Interventions: Preserving Humanitarian Values in 21st Century Conflicts.” Paper presented at the Humanitarian Challenges in Military Intervention Conference, Carr Center for Human Rights Policy, Kennedy School of Government, Harvard University, November 29, 2001.
² Dunlap, Charles J., Jr. “Lawfare Today: A Perspective.” Yale Journal of International Affairs, Winter/Spring 2008, pp. 146–154.
³ Kittrie, Orde F. Lawfare: Law as a Weapon of War. Oxford University Press, 2016.
⁴ Pring, George W., and Penelope Canan. SLAPPs: Getting Sued for Speaking Out. Temple University Press, 1996. Pring and Canan’s original study analyzed over 300 civil actions filed against citizens engaging in public participation and identified the structural pattern of cost-imposition as the operative mechanism regardless of legal merit.
⁵ Kennedy, David. Of War and Law. Princeton University Press, 2006.
⁶ Horton, Scott. “The Dangers of Lawfare.” Case Western Reserve Journal of International Law, Vol. 43, No. 1 & 2 (2010), pp. 163–180.
⁷ Hajjar, Lisa. “Lawfare and Armed Conflicts: A Comparative Analysis of Israeli and American Doctrines and Agendas.” In The Militarization of Law: Lawfare, the Rule of Law, and the Ethics of Warfare, ed. Austin Sarat et al. Forthcoming volume cited in Lawfare: Law as a Weapon of War at 47 n.112.
Klamath Basin Lawfare is an independent public archive. All source material is derived from public records. Editorial correspondence and records submissions may be directed to transparency@KlamathBasinLawfare.org.