July 3, 2006: It seems that when the war on terror is not under attack from the press, it is under attack in the courts. The latest attack on the lawfare front is the Supreme Court's decision siding with human rights groups and lawyers for Salim Ahmed Hamdan, an admitted bodyguard of Osama bin Laden. By a 5-to-3 vote, the Supreme Court has halted the military commissions, claiming they were not authorized by Congress. Some of the justices have even opined that they are arguably against the Geneva Convention. The Supreme Court ruled on this case despite the fact that by passing the Detainee Treatment Act in December, 2005, Congress had clearly indicated that federal courts did not have jurisdiction to rule in this case.

Three previous lawfare cases have gone to the Supreme Court, and set the stage for this ruling. All three involved terrorists that were captured on the battlefield and detained at Guantanamo Bay. The first case, Hamdi v. Rumsfeld, was filed by a detainee who was captured while fighting for the Taliban against the United States government. The case was initially dismissed by lower courts, but in a Supreme Court ruling that was issued within two months of the Abu Ghraib scandal's emergence on the public stage. The 4th Circuit was overruled, and the detainees were permitted access to U.S. courts.

A similar case, Rasul v. Bush, centered on claims that the detainees were wrongfully imprisoned. Lower courts ruled they did not have jurisdiction over the case, citing Johnson v. Eisentrager, a case involving Nazi war criminals. However, in a decision released the same day as Hamdi v. Rumsfeld, the Supreme Court ruled in favor of the captured terrorists, finding that U.S. courts did have jurisdiction over Guantanamo Bay.

A third case, involving "dirty bomb" suspect Jose Padilla, was also heard. In this case, though, the Supreme Court found for the Department of Defense on a technicality. Padilla recently was charged in a regular criminal court on various conspiracy charges relating to al-Qaeda plots in the 1990s. This has been challenged in court as well.

The end result is that Congress and the Administration have to regroup in the face of a Supreme Court decision that not only defied Congress, but which also has shown far more consideration for the terrorists than it did for their would-be victims. In essence, human rights groups now have openings for the next round of lawfare. At this point, the courtroom seems to be a battlefield where al Qaeda is scoring major successes. Already some critics are casting an eye towards what the Supreme Court's ruling means for the NSA's monitoring of terrorist communications with people in the United States. The court's ruling on the Geneva Convention could also add new rounds of cases.

This lawfare, if unchecked, could lead to successful attacks down the road. These attacks will owe their success to the lawfare waged by human rights groups, which will not take any responsibility for such contributions. Worse yet, any efforts by Congress and the Administration to check the lawfare will apparently be swept aside by an Imperial Supreme Court. - Harold C. Hutchison ([email protected])