Lawfare: an introduction

Image: Paulo Monteiro (Jornal de Resenhas)


Preface to the Portuguese edition of the book by Cristiano Zanin, Valeska Martins & Rafael Valim

lawfare, by Cristino Martins, Valeska Martins and Rafael Valim, now published in Portugal, is a perplexing study of a new reality, the emergence of the judicialization of politics as an instrument of the politicization of justice. As anyone reading the following pages will realize, the authors start from their own experience in the turmoil of changing judicial rules in a far-reaching case, the trial of former President Lula (in fact, they present themselves as the lawyers who constituted the “ technical defense” of the accused, thus underlining that they define themselves as being alien to the political reading of the case), to try to identify and explain the process of corruption of this justice, discovering that there are universal traits in this movement.

The book begins by describing this symbiosis between law (law) and war (warfare), to then point out the strategy that was embodied in this way and the tactics that put it into practice, concluding with notes, perhaps too brief, on three examples, those of a case involving Siemens, that of the investigation against Republican senator Ted Stevens, during Obama's presidency, and, finally, the accusation against Lula, which prevented his presidential candidacy and which led to his imprisonment for a year and a half and a process that is still ongoing. The choice of examples indicates how the authors avoid a simplified reading and suspect that the lawfare may become an instrument of general use in different contexts of political power, even of different colors.

Manipulation of law and justice by an authoritarian government is, of course, not new. the law of apartheid and the arrest of Nelson Mandela, as the authors remember, has a long history in the XNUMXth century, and other cases are not out of keeping with this violence. It is a universal constant. If “law is the organization of force”, as Hans Kelsen wrote, it will always have been so, the history of law is that of the power of the dominant classes that define and enforce it. Dictatorships, but also other forms of discriminating power, used the law to consecrate the unacceptable or their justification speech (just to stay in the XNUMXth century, the statutes of the indigenato were law in imperial and Salazarist Portugal, the distinction between whites and blacks or Indo-Americans was law in the United States, the exclusion of women's voting rights and other impositions lasted throughout the century in several European countries, in one case almost until the end of the third quarter).

However, there have always been powerful movements that, in modernity, if not before it, created reasons for the law and the procedure of justice to consecrate verifiable rules and to generate impartiality. This is how the written law applicable to everyone developed over centuries and even millennia, or, more recently, the trial by jury, the presumption of innocence or the codification of the rights of the defence. Confident in this progress, Lacordaire affirmed that, “between the strong and the weak, it is the law that liberates and freedom that oppresses”. As to whether this liberation by equality in law is a presumption, a guarantee, or a chimera, modern histories point to contradictory examples. And this is where the argument of the authors of this book comes in.

O lawfare it is the mechanism by which “Law ceased to be an instance of peaceful resolution of controversies to metamorphose, perversely, into a weapon of the State to bring down the enemies of shift”, write the authors. This “means the strategic use of law for purposes of delegitimizing, harming or annihilating an enemy”. The genealogy of the concept confirms this definition. As they explain to us, the first formulations date from 1975, but it was Major General Dunlap Jr, of the US Armed Forces, who, in 2001, identified the lawfare as an enemy weapon.

In this case, it would be about campaigns for human rights, which would undermine the action of the USA or Israel. However, in 2008 it was the same officer who suggested that it would be a weapon to be used and not just feared, in the context of the hybrid wars that would be the hallmark of our time. The weapon would serve to hit the opponent, to divide him, to paralyze him and to turn public opinion against him. Such a procedure would require the use of justice, not so much to resolve individual cases, but rather to achieve demonstrative social effects. Justice would then be transformed into a mode of hostility, which assumes that the rules are adaptable and optional, or that the ends justify the means.

This is not exactly a state of exception, since the lawfare it cannot reveal itself as an absolute power, given that the effectiveness of this hybrid war requires its recognition as a normality outside the war scenario or the state of siege. Unlike the fascist version of Carl Schmitt, for whom absolute power defines the sovereign as the one who decides the state of exception, here it is about the force of trivialization: justice as a weapon has to be accepted as the norm, as custom. For judicial procedures to be effectively instrumentalized by political entities for their own ends, it is still imperative that they are under the guise of the blunt sword of justice. It is, therefore, a mode of hegemonization.

The generalization of this technique of domination has raised alarm. In June 2019, the authors remind us, Pope Francis included a warning in a speech: “The lawfare, in addition to putting countries' democracy at serious risk, is generally used to undermine emerging political processes and tends to systematically violate social rights. In order to guarantee the institutional quality of States, it is essential to detect and neutralize this type of practices that result from improper judicial activity combined with parallel multimedia operations”. neutralize the lawfare, no other world leader has said it so clearly. It is worth following these two concerns, then, asking ourselves how this obscurantist strategy promotes an “improper judicial practice”, in the first place, and how it combines with “parallel media operations”, in the second place.

Judicial practice, the object of Francisco's first references, is the focus of this book. The authors evoke the risks of plea bargaining, which uses the interest of some investigated to build evidence against others, allowing the falsification of evidence, or the use or excess of preventive detention, which can serve as a certification for public opinion of dangerousness of the accused, even when it is a way of hiding the lack of evidence, or the procedural obstacles hindering the defense, including surveillance of lawyers (in the Lula case, the judge ordered wiretapping of the defense lawyers' office), or even the denunciation without materiality, everything that conforms to justice as persecution.

Processes such as those summarized in the book are examples of these practices. The authors list the tactics that sustain them, including, at the procedural level, the overloading (multiplying the messages to make it unfeasible to read), the jamming (confuse communication) ouo spoofing (mixing false information), or in the imposition of illegal actions, such as those revealed in 2019 by journalists from the The Intercept, which presented the messages exchanged in conversations between judge Sérgio Moro and prosecutor Deltan Dallagnol and which showed, with humiliating details of subservience, how the investigation was guided by the conviction and will of the judge.

This imposition was facilitated by the anomaly that is enshrined in Brazilian criminal procedure and which allows the investigating judge to still be the one who judges in the first instance, thus effectively creating a reversal of the burden of proof. This is about the mobilization of powerful instruments: the indictment to condition public opinion, namely through surgical escapes from the secrecy of justice, sharing true or false information that, due to the circumstances, cannot be contradicted, or through demonstrative measures, such as pre-trial detention to continue a fragile investigation and, as a result, promote a definitive judgment in advance by the media. Perhaps, by the end of the book, readers will conclude that the authors' arguments were convincing and that the verdict is appropriate. I believe it is, but perhaps the crime is even more serious than suggested by this manual on sprains, which uses justice for injustice.

Francis' second warning is precisely about this danger of expanding the warfare through the reach of “media operations”, which are not a theme developed in this book. Some of these operations have been the object of attention in Portugal and in other European countries, and the Brazilian case was once again an example, sometimes awkward, of this procedure, given that it was an emergency operation to prevent a presidential candidacy (I will not discuss in this preface of how, in my opinion, governance by the PT, namely its adaptation to the traditional functioning of the Brazilian political system, based on parliamentary corruption, combined with previous cases, facilitated the social context for this operation, as I expressed my criticism in other texts).

I believe that Democrats must be very aware of this second danger. Even assuming that the law, institutions and judicial practices could be protected from lawferization, the dissemination of instrumental forms of media manipulation allows any agent to use their hidden power to produce irreversible damage in the judicial process, and especially in the criminal process. If we live in the era of post-Machiavellian politics, what has changed is the way in which hegemony is imposed, no longer through a credible history, protected by heralds and ideologues and building a narrative, but rather through a flood effect. Perhaps Trump, better than all other heroes of buffoonery, exemplified the success of this type of infoxication technology. But I believe that we will not get rid of the shadow of this technology, even if the electoral result at the end of 2020 turns out to be adverse.

Half of the world's population is already connected to the internet. For most, this connection yields an addictive experience of life that consists of the game or the social network, or both, and thus a part of the world lives in an unsocialized haven and simulacrum of society. This creates communication, but it is communication of a new kind, algorithm-oriented, subordinated to the genesis of myths like no previous form, given that, in its current configuration, it knows no intermediaries and is based on emotional intensity, where exuberance is the most promising market.

In this world, the an influencer he is the buffoon of the lower clergy, the arbiter of networks, whose ambition is money and an ephemeral fame snatched away by the abuse of triviality, the most universal of all languages. In the case of Portugal, 63% of those who live here will be informed by social networks and no longer by the traditional media of the XNUMXth century; there are programs influencers that have more views than the mainstream television news and, among young people, the hegemony is absolute. There is a generation that has never opened a newspaper or watched television. In South Korea, they are two-thirds of the population; in the United States, 70% of teenagers refer to Instagram, 85% to Youtube.

What, however, was not anticipated, as this digital paradise in which everyone is presented as equal has grown, is that buffoonery occupies such an important part of its communication. And it is a clear sign of political polarization: in a recent survey by the YouGov about the United States, 44% of republicans say they believe that Bill Gates created the coronavirus to implant a chip in each person through the future vaccine (there are still 19% of Democrats who accept this thesis). O Pew Research Center concluded in March that 30% of Republicans thought that Covid was created to attack their country (half among Democrats). They had all read these certainties on social networks, which are becoming the equivalent of George Orwell's ministry of truth.

Aaron Greenspan, who studied at Harvard and was a colleague of Zuckerberg, with whom he created Facebook in 2003 and 2004 (the company paid him a fortune ten years ago to settle a copyright lawsuit, under undisclosed conditions) and who has become a critic of the dangers of managing social networks, he published a report in January last year in which he claims that half of the world's profiles are fake, based on data from the company itself. FB denies this, despite recognizing a smaller number, one in twenty.

The difference is noticeable, but even if the pollution is less than what Greenspan suggests, the vulnerability to industrial manipulation, to the mechanics of the avalanche and to the bubble system is built by this immense stain and by the speed of transmission over it. Well, there has never been another media outlet, least of all the most powerful in the world, that was not subject to some form of legal obligation or common rules of action, control of the suitability of content creators, fiscal duty in the places where it operates. your business. Now, social networks and their multinationals are above these obligations and show no willingness to submit to them, which is why they are a powerful channel for warfare. This is where the weapons of communication shine brightest, and they are lethal.

Thus, in this ministry of truth, information informs but has no recognizable sources, rather it is produced by a myriad of replications; the torrent is unverifiable, its map is chaos; and advertising is handled according to our history, knowing everything about each person. The network does not depend on credibility, as it once happened with social communication companies, rather it promotes the occupation of emotional space, and in this the burlesque stands out. It does not offer us a product, we are the product, as the journalist Paulo Pena underlined in his book Lie Factory: Journey to the World of Fake News. Thus, there has never been such overwhelming communication and this is what lying is based on. Now, there is no lie more majestic than that of lawfare, for he wears the toga of justice, and puts on the solemnity of the law.

If, as Francis suggests, the aggressiveness of the hostile instrumentalization of the law is combined with infoxication, then the power thus obtained is immense. Now, if its handlers know it, democracy must learn to protect itself. And he still didn't get it. The book you are going to read tells the story of several trenches in a war that involves movements and does not guarantee a happy ending. Maybe that's why it demands so much from its readers, because only democratic insurgency can save democracy and justice.

*Francisco Louçã he was coordinator of the Left Bloc (2005-2012, Portugal). Author, among other books, of The Curse of Midas – The Culture of Late Capitalism (Lark).



Cristiano Zanin, Valeska Martins & Rafael Valim. Lawfare: an introduction. São Paulo, Countercurrent, 2019.


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