July 22, 2007: One of the deleterious effects of lawfare has been the uncertainty it creates for those who are trying to prevent terrorist attacks. In this case, the uncertainty surrounded just how far the CIA could go on interrogation techniques. In essence, for the three years it took to resolve the matter, the United States was unable to find out what terrorists knew - during the timeframe of some successful attacks. President Bush recently signed orders setting new limits on the CIA's interrogation techniques.

The new order is designed to not only set limits, but there is another factor being considered. Al Qaeda has been known to try to exploit guidelines to its advantage. Its personnel are already trained to falsely claim torture. Often human-rights groups, whose press releases are echoed by the mainstream media, often without pointing out facts that might contradict their agenda, will echo these claims.

Human rights groups have a track record of siding with people who could be charitably described as slimy. In 2001, Amnesty International filed suit to get CIA documents pertaining to the 1993 effort to take down Pablo Escobar, the leader of the Medellin drug cartel. Later that year, they waged a campaign that ultimately resulted in the release of Ahmed Hikmat Shakir from Jordanian custody. Shakir is an Iraqi national who escorted at least one of the hijackers of the airliner that flew into the Pentagon through Malaysian customs in January 2000, prior to attending the al Qaeda summit held that same month. When taken into custody in Qatar, Shakir had contact information for the safehouses used in the 1993 attack on the World Trade Center and information on the 1995 al Qaeda plot to destroy airliners over the Pacific Ocean.

This was the result of a Supreme Court decision siding with human rights groups and lawyers for Salim Ahmed Hamdan, an admitted bodyguard of Osama bin Laden that declared that the United States was subject to Common Article Three when it came to al-Qaeda. Earlier cases had granted the detainees access to U.S. courts, and also stating that they had jurisdiction over Guantanamo Bay. This has led to more suits - each a potential intelligence disaster waiting to happen, and each with the potential to make it easier for terrorists to carry out attacks.

Many of these detainees were senior planners like Abu Zubaydah, captured in April 2002 and Khalid Sheikh Mohammed, captured in March 2003. If guys like this can be made to talk in time, that can prevent attacks from happening. The CIA's ability to use alternative interrogation techniques is another option that is being kept open. They appear to have worked, apparently thwarting attacks (including a plotted anthrax attack). Not much is publicly known about what techniques used by the CIA ultimately broke the prisoners. Barring a leak, you won't hear the details. This will help break future high-level al Qaeda operatives held prisoner, and generate more information that will be used against the terrorist organization.

The end result is that Congress and the Administration have had 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. This lawfare, if efforts to check it fail or are swept aside by an Imperial Supreme Court, could have something even worse. The resulting inaction by intelligence and military personnel worried about legal repercussions could lead to successful attacks down the road. - Harold C. Hutchison ([email protected])