Top Headline Comments 04-29-09 | Main | Buckley Stays the Course
April 29, 2009

Lawfare Fails Again

The folly of pretending the War on Terror is a law enforcement problem was illustrated again yesterday, first in the UK and then here in California.

First, The three 7/7 conspirators, on retrial for aiding in the bombing attacks on London's metro and bus system, were acquitted of the terrorism charges. Their first jury last year couldn't come to a verdict. Neither jury was allowed to see much of the evidence that connected the men to the 7/7 bombers because wiretaps conducted by intelligence agencies are not admissible in UK courts.

I've said it before: evidence collection and intelligence gathering are not the same thing. They have different purposes and different legal consequences.

Second, the Ninth Circuit ruled that the state secrets privilege, which had been asserted by both Presidents Bush and Obama, could not shield a Boeing subsidiary from litigation. The subsidiary, Jeppesen Dataplan Inc., was sued by five men who allege that they were kidnapped and tortured as part of the extraordinary rendition program. The U.S. government intervened in the suit and asked that it be dismissed since details of Jeppesen's participation--mainly filing flight plans--would compromise national security.

The Ninth Circuit refused to allow the dismissal, holding that state secrets privilege must be asserted on an "item-by-item basis" to discovery requests by the parties.

This is, as usual for the Ninth, a seriously retarded ruling. Consider: so the case is back in district court and the five guys make discovery requests. The U.S. government now has to intervene each time it finds a request objectionable. Then, it will have to file an interlocutory appeal each and every time the district court rules against it (assuming it really wants to assert the privilege). The government cannot wait for the end of the trial to appeal adverse state secrets decisions. By then the secret won't be.

So the Ninth has created a situation where this litigation can conceivably bounce back and forth to the appellate courts indefinitely as the parties seek discovery and the U.S. government continues to assert state secrets privilege. This assumes that Obama stays the course on state secrets (maybe not a great assumption).

In the Ninth Circuit's defense, this area of law isn't very well developed. On the other hand, that should have given them plenty of room to fashion a workable solution. Instead, they ignored the practical result of their decision. A copy of the opinion is available here (PDF).


digg this
posted by Gabriel Malor at 08:35 AM

| Access Comments




Recent Comments
steevy: "Will "she" be hiding the salami or has it been rem ..."

free tibet: "Cal Worthington grossed $316 MILLION in 1988 in ca ..."

BeckoningChasm: "The next month, MAD magazine will publish an issue ..."

Barak Obama: "The most dangerous place to be is between Michelle ..."

Caliban: "40 Hugh Hefner is spinning in his grave. Pos ..."

Mortimer - disappointed: "Sexbots have modular, swappable genitalia. You cou ..."

Danny Bonaduce: "[i]I wouldn't hit a girl but a girl I found out is ..."

Bear with Assymetrical Balls: "No one's been more cynical in this thread than me, ..."

Fritz: "No way, I'm not following that link, so refresh my ..."

Steve and Cold Bear: "If this is just some pyrrhic victory, hopefully it ..."

Christopher R Taylor: "I wouldn't hit a girl but a girl I found out is a ..."

Jukin the Deplorable, Profoundly Unserious & Immature Scientifically: "I'm just a transgendered woman living inside a man ..."

Recent Entries
Search


MuNuvians
Polls! Polls! Polls!
Frequently Asked Questions
The (Almost) Complete Paul Anka Integrity Kick
Top Top Tens
Greatest Hitjobs

The Ace of Spades HQ Sex-for-Money Skankathon
A D&D Guide to the Democratic Candidates
Margaret Cho: Just Not Funny
More Margaret Cho Abuse
Margaret Cho: Still Not Funny
Iraqi Prisoner Claims He Was Raped... By Woman
Wonkette Announces "Morning Zoo" Format
John Kerry's "Plan" Causes Surrender of Moqtada al-Sadr's Militia
World Muslim Leaders Apologize for Nick Berg's Beheading
Michael Moore Goes on Lunchtime Manhattan Death-Spree
Milestone: Oliver Willis Posts 400th "Fake News Article" Referencing Britney Spears
Liberal Economists Rue a "New Decade of Greed"
Artificial Insouciance: Maureen Dowd's Word Processor Revolts Against Her Numbing Imbecility
Intelligence Officials Eye Blogs for Tips
They Done Found Us Out, Cletus: Intrepid Internet Detective Figures Out Our Master Plan
Shock: Josh Marshall Almost Mentions Sarin Discovery in Iraq
Leather-Clad Biker Freaks Terrorize Australian Town
When Clinton Was President, Torture Was Cool
What Wonkette Means When She Explains What Tina Brown Means
Wonkette's Stand-Up Act
Wankette HQ Gay-Rumors Du Jour
Here's What's Bugging Me: Goose and Slider
My Own Micah Wright Style Confession of Dishonesty
Outraged "Conservatives" React to the FMA
An On-Line Impression of Dennis Miller Having Sex with a Kodiak Bear
The Story the Rightwing Media Refuses to Report!
Our Lunch with David "Glengarry Glen Ross" Mamet
The House of Love: Paul Krugman
A Michael Moore Mystery (TM)
The Dowd-O-Matic!
Liberal Consistency and Other Myths
Kepler's Laws of Liberal Media Bias
John Kerry-- The Splunge! Candidate
"Divisive" Politics & "Attacks on Patriotism" (very long)
The Donkey ("The Raven" parody)
News/Chat
Archives
Powered by
Movable Type 2.64