A Major Legal Setback

Drudge has the headline (and now a link): Supreme Court blocks Gitmo War Trials. By a 5-3 ruling, the high court has determined that the Bush Administration overstepped its authority by ordering military tribunals for terrorist detainees at Guantanamo Bay, Cuba. The Supreme Court made its ruling in the case of Salim Ahmed Hamdan, a Yemeni national who once worked as a driver for Osama bin Laden. Hamdan filed suit against Defense Secretary Donald Rumsfeld, prompting the court case that eventually resulted in today's decision.

Today's majority decision was written by Justice John Paul Stevens, the court's most liberal member. He was joined by the usual suspects, plus Justice Anthony Kennedy (surprise, surprise). New Chief Justice John Roberts was barred from voting in the case. As a federal appellate judge, he ruled against Hamdan when the case was brought before his appeals court. Today's ruling overturns the appellate court decision.

There is no way to mitigate the potential damage inflicted by his misguided decision. Take the legal antics of the Moussaoui trial (which lasted more than three years), multiply that by the number of inmates at Guantanamo, and you've got some idea of what's ahead for our federal courts system. From the district court to the Supreme Court, the system will be jammed with Al-Qaida suspects for years to come, each determined to create their own courtroom circus, and drag the process out as long as possible.

And who knows? If the Democrats regain the White House (and get a few court vacancies to work with), there's no telling what rights the SCOTUS may eventually confer on stateless terrorists. Meanwhile, every defense attorney with an Al Qaida client will mount their own, personal fishing expedition through U.S. national security files , in search of "evidence" to support their clients. Naturally, much of the information obtained in discovery will wind up on the front pages of friendly newspapers. Afterall, the public has a right to know, don't they? Bill Keller and the gang at the Times must be positively atwitter at that prospect.

C'mon, Spook surely you exaggerate. To the contrary, the legal assault on classified files by defense attorneys has alread begun, and let me offer a personal example. Earlier this week, a former colleague told me that he had been directed to seach his files for anything related to a certain terror suspect, now in federal custody. Apparently, the suspect's attorney is requesting information that may exist in intelligence files on his client, and he's casting the widest possible dragnet. Please note that my friend's area of expertise is adversary aircraft and tactics--he has never worked terrorism issues. But he had to spend an hour carefully checking his files, and responding to the request, a process that was repeatedly hundreds (if not thousands) of times across the intel community. This type of query will increase exponentially, as more Guantanamo suspects gain access our legal system, clogging both the courts and our intelligence community with useless requests for information.

I'm not a lawyer, but the most "interesting" element of this morning's decision is the Supreme Court's apparent finding that the Bush Administration plan violates not only U.S. law, but the Geneva Convention. You may recall that the convention provides no protection for combatants who do not fight for a nation-state or recognized government. But somehow, the five justices found enough wiggle room to determine that military trials violate both U.S. law and international accords. There must be dancing in the halls at ACLU offices around the country; the group's lawyers must be salivating at the prospect of a full-fledged legal war on the Bush Administration, courtesy of the nation's highest courts. And I'm sure the personal injury lawyers won't be far behind. Was that prison guard verbally or physically abusive, Mr. Terrorist? Don't worry, we'll make him pay.

Reacting to today's ruling, the DOD says it will have no affect on the detention effort at Gitmo. Don't be so sure. Emboldened by today's decision, I'm sure that a battalion of "human rights" attorneys will challenge the legality of the detention program, claiming that inmates are subjected to cruel and unusual punishment, through isolation and indefinite confinement. President Bush said a few months ago that he's like to shut down Gitmo. With a little help from the Supreme Court and the legal community, he may get that chance.