Too much is being made of that clause. If the ethereum team retrieve the funds and the so-called attacker seeks remedy in a human court. The human court will look for the human intent/ interpretation of the DAO contract.
It is fanciful to believe that any courts will favour this attacker over hundreds of other people that stand to lose significant funds because of an exploit in computer code.
People can argue the toss over it in cyberspace but take the matter to pretty much any jurisdiction in the world and see how far quoting this clause as justification for the misappropriation of other people's money will get the attacker. Not very far.
A thief is threathening to sue the rightful owner for blocking his attempt to steal. This is a crazy world of the crypto-land.
Thief or not a thief, winning the court trial or loosing it, it doesn't matter, the result is one and only one, ethereum looks like a joke in the eyes of a lot of people, nothing can change that. Mission accomplished for the "hacker" "thief" "whatever" and imo he is the least responsible to blame for this mess.