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).

posted by Gabriel Malor at 08:35 AM

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