A defeat for lawfare

Harold C. Hutchison writes on the American federal appeals court ruling that prevents terrorism detainees from accessing the U.S. criminal court system. The Military Commissions Act of 2006 appears to be working…

…The lawfare generally targeted the Department of Defense, with both the National Security Agency and the camps at Guantanamo Bay as the major targets. From the time the first terrorists were captured in the war on terror and placed into military custody, lawsuits have been filed by human rights groups – often with the intention of hindering efforts by the United States to wage the war on terror.

The detainee issue has been the biggest subject of litigation. The human rights groups have wanted to maintain the previous approach of putting terrorists on trial like ordinary criminals. There has just been one problem with that. In the United States, there is a discovery process, in which the prosecution must turn over information to the defense. In doing so, terrorists got the same rights as other criminals. In 1995, during the trial of Omar Abdel Rahman, a leader of Egyptian Islamic Jihad, the United States handed over a list of over 200 people to Rahman’s lawyers in compliance with those laws. That information eventually found its way to al-Qaeda headquarters. Even as terrorists were put away, al-Qaeda was tipped off as to what the United States knew.

Naturally, protecting intelligence sources became a paramount concern. Hence, the decision was made that the United States would try terrorist leaders in military commissions, where the classified information could be prevented from falling into the hands of terrorists still out there. However, the human rights groups still sued over this, and eventually got a series of court rulings that led to the Military Commissions Act. The legislation clarified rules concerning what is and is not allowed with regards to the treatment of detainees, due to the Supreme Court’s interpretation of the Geneva conventions in Hamdan v. Rumsfeld. Despite the fact it prohibits torture, physical abuse, murder, rape, sexual assault, hostage taking, intentionally causing serious injury, or performing biological experiments on prisoners, human rights groups want it repealed.

Several leaders in the new Democratic Congress, like Senator Patrick Leahy, have announced their intention to restore detainees’ access to the courts despite the problems shown in the past when American rules of discovery led to intelligence being compromised. These leaders have far more concern for the rights of terrorists than they do for the rights of innocent people to not be killed or maimed in a bombing, or kidnapped and beheaded.