the outside agitator

a new radical tradition

Notes on Lawfare

by dagwood for comrades’ consideration

I. The Gist

Lawfare – state counterinsurgency through the legal system; a system’s use of the legal system in order to disorganize/demobilize a movement against itself

Lawfare explanation courtesy of Wikipedia

What are the impacts of lawfare? 

  • Siphoning of funds
    • fines, bail, lost hours worked/lost jobs, lost systems of financial support
  • Disappearing of people we care about into places we know are harming them
    • kidnapping, incarceration, and torture of people involved in the movement within jails/prisons (This is an effective means to disorganize a movement)
  • Deter recruitment / base building
    • Seeing that the legal system is the home court where the state gets to wave its big stick, the masses are, rightfully, deterred by the big stick.
  • Seizing Time
    • Getting arrested takes time. Getting processed takes time. Being detained takes time. Being released takes time. Waiting on lawyers takes time. Waiting on court dates takes time. Court takes time. Judges take time. Legal processes take time. These are hours that accumulate into days and weeks being consumed by the legal system. (Time wasted kills momentum; it is an effective tactic to demobilize a movement)
  • Draining psychic energy
    • While the legal system is designed to waste your time, you are still a person moving through time within the legal system and this is hard. It is scary, at times terrifying and physically painful, it is stressful and frustrating. This is also true, albeit in a very different way, for those who care about the people who are inside the system. Collectively, the result is a movement that is under duress, people who are tired and fried, organizers who are compromised. (This is an effective means to demobilize a movement.)
  • Mis-direction of legal resources 
    • Pro bono lawyers who are generous towards us in regards to their time, labor, and expertise must redirect their focus to a defensive rather than offensive posture towards the state. Movements can attempt to use legal challenges, for example lawsuits and appeals, to use the legal system in support of the movement. In this way, lawfare can be an effective means to curb the effectiveness of a movement by functionally removing a tool from the toolbox.
  • Distract from movement goals 
    • Organizing energy and resources become subsumed by actions that begin and end, largely, within courtrooms which are designed to be sequestered from and unintelligible to the public. 
  • Constant interfacing with state surveillance
    • The state is watching you, and the state can more easily watch you in a courtroom. Behavior adapts accordingly. These adaptations further encumber organizers and movement building.

Ultimately, these tactics serve the overarching strategy: blackhole resources to reroute movement efforts towards confronting the legal system rather than organizing towards the movement’s goals. 

These tactics make for effective counterinsurgency strategy. 

Literally, a courtroom is this guy transmogrified into a physical room and the bailiff is an energy vampire and the judge is an energy vampire and the stenographer is an energy vampire and Do You Swear To Tell The Whole Truth is an energy vampire and So Help You God is an energy vampire and every motion is an energy vampire and Motion Sustained is an energy vampire and the uncomfortable, wooden pews are an energy vampire and I feel myself melting into the courtroom, flesh becoming glue consumed by this odious machine god i hate it here dont you hate it here why would anyone devise such an intricate stricture of the soul? 

Lawfare is really effective. Let’s ground the above ideas within historical examples of New Left movements.

II. The Precedent 

COINTELPRO, or the Counter Intelligence Program, was an FBI domestic surveillance and intelligence gathering project that began in the 1950s and carried on through the early 1970s. Initiated in 1956 by Bureau Director J. Edgar Hoover, the program aimed to neutralize the communist threat in the U.S. by launching operations against the Communist Party (CPUSA).1 Groups were chosen for surveillance if they were deemed subversive or liable for communist influence by the Bureau. This included groups that could be encompassed under the umbrella term of the New Left. COINTELPRO operations expanded to include other groups such as the Socialist Workers Party, White Hate Groups, Black Hate Groups, and the New Left Movement (which broadly encompassed the disparate anti-war movement).2 Other more localized groups were targeted as well, such as the independence movement in Puerto Rico and the American Indian Movement. Utilizing both legal and criminal means, the Bureau pursued efforts to neutralize the New Left as it challenged normative values, societal structures, and institutional practices. COINTELPRO’s use of the criminal justice and legal systems operated as a means of counterinsurgency against the New Left, instantiating lawfare within historical precedent.

For the FBI, the criminal justice system was a tool to be wielded against perceived enemies.3 In pursuit of its objectives, COINTELPRO operations routinely abandoned the charade of due process, used state violence as a means of combating the New Left, and instrumentalized facets of the criminal justice system to squash organizations. The actions of the Bureau were not demonstrative of a good faith effort to ensure public safety, and were not that of a government that aspired to uphold the rights of citizens. Their prime objective was to dismantle and neutralize the New Left by any means necessary. 

The use of false arrests and cash bail to imprison New Left activists and bankrupt their organizations was common practice by both the Bureau and local law enforcement.4  When the funds ran out and the wrongfully imprisoned were not able to make bail, the carceral system functioned to isolate, psychologically torment, and neutralize those activists in addition to tarring their reputations publicly. This tactic by law enforcement was summarized by Black Panther Party (BPP) attorney Charles Garvey, 

[Panthers] were kept in prison for days, weeks, and months even though there was absolutely no evidence against them, and they were finally released. At least a dozen cases involving the Panthers have been dismissed in court. These cases, the purpose has clearly been to intimidate, to frighten, to remove from operations and activities the Panthers, and to hope the [resultant public] hysteria against the Black Panther Party would produce convictions and imprisonments.5 

According to the BPP, between 1967 and 1968, over $200,000 was spent on bail bond premiums alone which today is approximately $1.3 million.6 The use of cash bail as a tool to immobilize and bankrupt organizations was a stated goal by the FBI. In a memo outlining tactics to subdue AIM, one agent suggested, “that local police put [AIM] leaders under close scrutiny, and arrest them on every possible charge until they could no longer make bail.”7 To adequately imprison large enough quantities of activists, the FBI collaborated closely with local law enforcement officials. For example, in a 1968 FBI memo the agent praised how, “The Philadelphia Office alerted the police [about the Revolutionary Action Movement], who then put RAM leaders under close scrutiny. They were arrested on every possible charge until they could no longer make bail.”8 The arrests made on New Left activists were to disrupt their political organization and operations. Law enforcement was actively working to squash their political freedoms, and the Bureau would not have been as successful with COINTELPRO without the support and ‘diligence’ of local law enforcement. In one assessment of COINTELPRO, “…selective law enforcement and legal proceedings disrupted BPP organising at least as much as COINTELPRO…Local police selectively enforced criminal laws and used public disorder laws to harass Party members.”9 The use of false arrests and exploitation of cash bail was effective in obstructing the New Left, but the Bureau’s efforts continued into the courts in the form of political, often frangible trials. 

An egregious example of the Bureau using the legal system as an obviously ham-fisted means to disappear movement organizers was in the Wounded Knee leadership trials of 1974 during which Russell Means and Dennis Banks were charged with 13 offences each and faced 150 years cumulatively. The case hinged on the testimony of a serial rapist wanted on charges for assault in two separate states and who raped a young girl while in FBI custody. During the trial, the prosecution and FBI suppressed 131 pieces of exculpatory evidence.10 Meaning the Bureau knew fully that the two defendants were innocent of some of their charges and yet aggressively pursued them nonetheless. They were not preoccupied with justice, but instead focused on the neutralization of two Native American agitators that aggressively and militantly challenged corruption and American domination on reservations. During the trial, the flagrant misconduct of the Bureau resulted in the presiding judge saying, 

…if [this] was not a deliberate deception, it was grossly negligent conduct…131 

discoverable or arguably discoverable pieces of [exculpatory] evidence which weren’t turned over…the defendants have expressed profound distrust of the FBI…the expression of distrust is understandable…the FBI is negligent at best.11  [emphasis my own] 

The case was dismissed on account of FBI misconduct. But the story does not end there, in the aftermath of the case: the presiding judge, Fred Nichol, was removed from any other American Indian Movement (AIM)-related cases with the head prosecutor, R.D. Hurd, alleging in affidavits that Judge Nichols “expressed the opinion that the Justice Department was more interested in convictions than it was in justice.”12 Additionally, the star eyewitness serial rapist avoided perjury charges and assault charges in both Wisconsin and South Dakota and was compensated by the FBI for “expenses” related to testimony.13 The head prosecutor on the case, R.D. Hurd was awarded for his “superior performance” and assigned lead roles in convicting other AIM members, and the FBI agents on the cases received no official censure as recommended by the judge, and continued to lead operations on the Pine Ridge reservation.14 Additionally, it was later discovered that the FBI had successfully infiltrated the defence and knew of the defence’s court strategy following a successful infiltration.15

Though the Bureau claimed to be an “investigative agency,” they failed to be concerned with legitimate security threats or justice. Hundreds of arrests and charges were brought against AIM members and supporters after the Siege on Wounded Knee. In response, the Wounded Knee Legal Defense/Offense Committee (WKLD/OC) was created. Its purpose was to provide legal defense to those charged, stem illegal arrests, and publicize the events at Wounded Knee. Taking on cases like the aforementioned, the WKLD/OC had an acquittal/dismissal rate of 92.3%.16 Insubstantial, weak cases like the Wounded Knee leadership trial were not an outlier. For example, in a case brought against BPP member Eldridge Cleaver for a parole violation, the presiding judge over his case repeated a similar sentiment to Judge Nichol in the Wounded Knee trial saying, 

It has to be stressed that the uncontradicted evidence presented to this court indicated that the petitioner had been a model parolee [Cleaver]. The peril to his parole status stemmed from no failure of personal rehabilitation, but from his undue eloquence in pursuing political goals, goals which were offensive to many of his contemporaries. Not only was there absence of cause for the cancellation of his parole, it was the type of pressure unbecoming, to say the least, to the law enforcement paraphernalia of the state.17 [emphasis my own] 

In other words, the judge found that Cleaver was targeted by the state, falsely arrested, and falsely imprisoned for his political views. The judge’s dismissal of the charges was by no means justice as Cleaver had been shot by police, falsely arrested, and brutalized in police custody. But unlike in the AIM trial, Cleaver’s dismissal was appealed and any semblance of justice was immediately lost as the higher court ruled in favor of “the arbitrary power of the adult authority to revoke parole,” and Cleaver was sent back to prison.18 

In addition to the weaponization of cash bail and the degradation of the court system, the carceral system was additionally leveled as a tool to subdue activists. The local police and Bureau knew that if they arrested enough activists, not all would be able to pay their legal fees, and would be unable to make bail. This would leave them in jail for an indefinite period while they awaited trial. From jail, activists would be unable to operate or lead their organizations and their movement would be hindered. While incarcerated, activists were targeted and suffered greatly within the American prison system. This was the case for the Panther Twenty-One in 1969 where 22 members of the New York Black Panther Party chapter were indicted, then 13 were arrested with a cumulative 156 charges alleging a conspiracy to bomb buildings and kill police officers.19 Their aggregate bond was set at $21,000,000.20 The members were imprisoned for over 2 years on accusations based on four police informants who did not see any of the defendants set a bomb or shoot a police officer.21 The jury deliberated for 3 hours and 18 minutes (including their lunch hour) before acquitting the defendants of all 156 charges (reading off all of the “not guilty” charges took about 22 minutes).22 After the fact, jurors explained their decision saying, 

“[The case] was like listening to a fairy tale.” 

“If there had been one witness, just one, who would have said he were [sic] present when a bomb was placed in a police station, I would have voted guilty. I think we all would.” 

“There was just not enough evidence; in fact, I didn’t think there was any evidence.” 

“Since there was so little evidence, I felt that to acquit was to protect everyone’s freedom.”23

The members were held in maximum security prisons for over two years, many in solitary, sometimes for months on end, without being charged with any crime.24  The New York BPP chapter disintegrated as a result. The actions by the FBI in COINTELPRO operations proved that the department was not concerned with justice – it was focused on squashing political dissent. 

III. A Brief Detour on Other Precedents 

On bail and movement finances

The Civil Rights Movement, specifically the Freedom Rides, in response to lawfare and its blackholing of financial resources, adopted the tactic of Jail, No Bail which is just as it sounds: get arrested, don’t post bail (For further reading). In short:

The Movement [in 1961] has little money and most southern Blacks are poor. It is hard to scrape up bail money, and sit-in struggles are faltering — not from lack of volunteers to risk arrest — but from lack of money to bail them out. Moreover, paying fines provides the cops with financial resources that are then used to continue suppressing the freedom struggle. By refusing bail, they render meaningless the no-money-for-bail barrier and by serving time they put financial pressure on local authorities who have to pay the costs of incarcerating them.25

However, Jail, No Bail waned as a tactic for numerous reasons. Over time, “student activists evolve[d] into community organizers, and tactics shift from students courageously dramatizing the iniquities and abuses of segregation to building popular mass movements for justice.”26 Mass movements mean many different kinds of people, not only students with minimal responsibilities, but adults with people who rely on them who cannot just sit in jail. In sum, to be organizers, organizers have to organize – not sit in jail or prison under the brutal, tortuous, and homicidal thumb of the state.27

Jail, No Bail presents a tactic which undermines aspects of lawfare: depletion of financial resources, publicization of state repression, and financial investments within the state. However, as a tactic, it, as a rule, relinquishes organizers (sometimes en masse) to state detention indefinitely. 

Further, currently, the state is advancing efforts to criminalize cash bail funds and restrict access to cash bail. This was done most strikingly in Atlanta, Georgia following the raid by SWAT and the Georgia Bureau of Investigation into the home which served as headquarters for the Atlanta Solidarity Fund. Three organizers were charged with money laundering and charity fraud. Bail funds are currently under attack nationally. 

IV. So What

What does this mean for our organizing efforts and confronting the legal system as an organizing tactic? Are these confrontations effective towards our goals? Do they move a strategy forward? 

When I return to the historical examples of the New Left and the FBI’s successful neutralization of the movement, I think that lawfare is an effective means of disorganization and demobilization. And we can observe that the state also knows this to be true because they are running the same playbook. They are running the same playbook, and it is working. 

We will never out-money, out-time, out-resource the state. Given this organizing landscape…how do we proceed?

Crucially, I am not disavowing deliberate engagements with the state through actions such as mass arrests and other symbolic actions. (Movements must be tactically agnostic and responsive to context.) Instead, I am naming the tactic as resource-intensive (time, labor, bodies, expertise, funds). The pea at the bottom of this stack of mattresses chafing and generating this line of inquiry is what I perceive to be the diminishing returns of spectacle amid the attention economy, president-led glee towards brutalizing dissidents of all stripes by both the state and vigilantes, the agility of state surveillance and repression, and the urgency of political and organizational efficacy. Which, I guess, the pea below even those mattresses is my conviction in the efficacy of guerrilla tactics. We cannot over-power the state – trying to figure out the answers to these questions is foolhardy and beside the point. Evasion, sabotage, and delegitimization, now – that is the current question.

For comments, conversation, and criticism, email me: dagwoodcrabtree@gmail.com. Nothing is certain or resolved; tell me something I don’t know, really.

  1.  Davis, Spying on America: The FBI’s Domestic Counterintelligence Program, 31
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  2.  Davis, Assault on the Left: The FBI and the Sixties Antiwar Movement, 6-9.
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  3.  Other lawfare tactics used by COINTELPRO: perjured testimony by law enforcement officers, presenting fabricated evidence as a pretense for wrongful arrest, discriminatory enforcement of tax laws and other regulations against targets, audits, subpoenas, warrantless surveillance, “investigative interviews”, and other procedural legal tactics to harass targets and defame them in the courts of law and public opinion.
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  4.  Churchill and Vander Wall, The COINTELPRO Papers, 112. 
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  5.  Churchill and Vander Wall, The COINTELPRO Papers, 143. 
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  6.  “The FBI’s Secret War.” 
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  7.  Churchill and Vander Wall, The COINTELPRO Papers, 235.
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  8.  Churchill and Vander Wall, The COINTELPRO Papers 107-111.
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  9.  Churchill and Vander Wall, The COINTELPRO Papers, 86-87. 
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  10.  Churchill and Vander Wall, The COINTELPRO Papers, 254-255, 389. “United States v. Banks and Means (Wounded Knee).”
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  11.  Churchill and Vander Wall, The COINTELPRO Papers, 390. 
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  12.  Churchill and Vander Wall, The COINTELPRO Papers, 256. “4 Mar 1975, Page 1 – Star Tribune at Newspapers.Com.” “3 Apr 1975, Page 1 – Argus-Leader at Newspapers.Com.” 
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  13.  Churchill and Vander Wall, The COINTELPRO Papers, 255, 389.
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  14.  Churchill and Vander Wall, The COINTELPRO Papers, 256. “19 Sep 1974, Page 1 – Argus-Leader at Newspapers.Com.” Johansen, “Still Fighting the Indian Wars.” 
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  15.  “14 Mar 1975, 34 – The Vancouver Sun at Newspapers.Com.” 
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  16.  Beeler et al., “WOUNDED KNEE LEGAL DEFENSE/OFFENSE COMMITTEE.”20
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  17.  Churchill and Vander Wall, The COINTELPRO Papers, 129. Scheer, “Cleaver Defense.” 
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  18.  Churchill and Vander Wall, The COINTELPRO Papers, 126-129. “In Re Cleaver.” 
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  19.  “13 May 1971, 1 – The San Francisco Examiner at Newspapers.Com.” 
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  20.  Asbury, “16 Black Panthers Go on Trial Tomorrow in State Court Here (Published 1970).”
    21.
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  21.  Churchill and Vander Wall, The COINTELPRO Papers, 157. “19 Oct 1970, 10 – The Boston Globe at Newspapers.Com.” Additionally, in recounting the makeup of the jury, the Globe found it worthy to note, “Several of the whites wear their hair moderately long.” “14 May 1971, 12 – Des Moines Tribune at Newspapers.Com.” 
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  22.  “14 May 1971, 12 – Des Moines Tribune at Newspapers.Com.” 
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  23.  “14 May 1971, 12 – Des Moines Tribune at Newspapers.Com.” 
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  24.  Churchill and Vander Wall, The COINTELPRO Papers, 147-148.
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  25.  Civil Rights Movement History, 1961.
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  26.  Civil Rights Movement History, 1961. Link to access: https://www.crmvet.org/tim/timhis61.htm#1961rockhil. 
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  27.  Civil Rights Movement History, 1961. Link to access: https://www.crmvet.org/tim/timhis61.htm#1961rockhil. 
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