March 14, 2006:
The growing importance of lawfare is one of the least noticed, but most critical developments of the war on terror. 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. This is nothing new. Activities that could be construed as lawfare go back to the late 19th Century, when British use of expanding bullets was vigorously protested by Germany during the negotiations that produced the Hague conventions. This caused a marked decrease in the effectiveness of ammunition. For instance, studies by Evan Marshall show that a full-metal jacket 9mm round has a one-shot stop rate of 70 percent, while the best 115-grain 9mm hollowpoint has a one-shot stop rate of 91 percent.
Lawsuits on environmental issues had previously shown their effect in forcing the military to make changes. Perhaps the most famous was the lawsuit filed by environmental groups against the United States Navy over the use of the SURTASS LFA submarine detection system. A final settlement, agreed to in 2003, ended up leveling vast restrictions on the use of the sonar in peacetime. This was a largely successful outcome for the environmental groups that had filed the original suit.
In the war on terror, three major lawfare cases have gone all the way to the Supreme Court. 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 ruled to be 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 big effect on lawfare comes down the road. The rulings have the value of legal precedent. Successful lawfare will lead to more lawfare. In the case of sonar, the U.S. Navy now faces a pending suit over the use of active medium-frequency sonars like the SQS-53 during exercises in peacetime. On the detainee front, a similar case, Hamdan, v. Rumsfeld, is also working its way up through the courts. If successful, this second round of lawfare could cripple vital training and efforts to protect intelligence. - Harold C. Hutchison ([email protected])
