April 29, 2009

Lawfare Fails Again
— Gabriel Malor

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 03:35 AM | Comments (27)
Post contains 411 words, total size 3 kb.

1 [Gabe, there's a double negative that needs fixing, "Neither jury wasn't allowed to see..." Feel free to delete this after reading.]

Posted by: andycanuck at April 29, 2009 03:38 AM (MGu62)

2 Fixed!

Posted by: Gabriel Malor at April 29, 2009 03:40 AM (rWvvO)

3 One of my biggest fears is our constant 'taking the moral higher ground' is going to get us killed.

Just shoot these fuckers and get it over with.

Posted by: Boobies Make Me Smile at April 29, 2009 03:40 AM (weVyN)

4 Where's amish dude? I'm sure he's know what to say.

Come on, let's spin this another way.  The law looks like a growth industry to me. 


Posted by: sears poncho at April 29, 2009 03:44 AM (uj/0b)


I'm sure everyone has heard of "shoot, scoop and shut up" which is the de-facto response to overreaching endangered species laws.  If one of these Gitmo detainees were released into my neighborhood, I'd hope he were the victim of a drive by... 

Posted by: MarkD at April 29, 2009 03:54 AM (MMy4A)


It's from a blog opining on th Air Force Dumb Manhattan scandal, from moneyrunner blog, but this applies to using the cops and courts to fight terror, just as practiced by the Clinton administrations:

The people who populate the Obama administration really don’t believe in 9/11. They may have read about it, They may know intellectually that it happened. But they view it the same way we may view a lightning strike that hits an isolated golfer: a billion-in-one shot that “just happened.” That’s why the Obama team is renaming the attacks of 9/11 as “man-caused disasters” putting it on the same moral plane as an auto wreck. That’s why the Obama team is not really concerned about revealing what we do to interrogate prisoners with vital information. They don’t believe we haven anything to worry about. Unlike the people who evacuated their buildings during the fly-bys and who ran for their lives, believing that they were under another attack. For Team Obama, it’s always 9/10.

Posted by: andycanuck at April 29, 2009 03:56 AM (MGu62)


Posted by: andycanuck at April 29, 2009 08:56 AM (MGu62)

Hey, when YOU win the election YOU can do whatever YOU want.  Until then, STFU, okay?

Posted by: Barry Obama at April 29, 2009 04:04 AM (/Mla1)


I am reposting "outraged"'s post 44 from the "Patient Zero" thread.  This is absofuckinglutely insane.  Watch the whole video.

OT but this deserves a flaming skull!

Obama is actively supporting the "green" protesters.

This video was on BBC NightNews. (last night I think)


The reporter goes into a protest convention, and finds most of the speakers are cabinet members ans Interior staff.  some are congresscritters. 

They  actually say they are "here on behalf of Pres. Obama."

The leader of the EPA even says the EPA is the backstop for the O Admin.

They even teach these protesters how to resist arrest.

Isn't this illegal?  A Pres. actively supporting protesters to push his agenda?

There is nothing ethical about this President!

Posted by: Unoriginal Reposter of Other People's Shit at April 29, 2009 04:04 AM (IHG5s)

9 I  say we create a new way of dealing with terrorist suspects.  Let them loose in New York, but inform the New Yorkers of who they are and what they look like.  Then, we see how long they make it.

We could even nickname them Pliskins.

Posted by: Ack at April 29, 2009 04:07 AM (wAuU5)


Good call, unoriginal reposter.  Not much that this admin does shocks me any more, but that kind of did.

FYI, people can probably skip the first 6 minutes, if they're in a hurry.

Posted by: yinzer at April 29, 2009 04:08 AM (/Mla1)


Let them loose in New York rural Alabama, but inform the New Yorkers Alabamians of who they are and what they look like. 


MUCH more effective.

Posted by: Circa (Insert Year Here) at April 29, 2009 04:12 AM (B+qrE)

12 Gabe, you miss the point: If the point of 'lawfare' is to punish, expose terrorist threats to this nation, then lawfare is a failure. But if the point of lawfare is to hobble intelligence and law enforcement agencies and keep them from investigating so-called terrorist threats which everyone who's anyone knows don't exist, then it's working fine. And if the purpose of lawfare is to protect our fearless leaders from the consequences of their own actions and unsavory associations, then it's been a rousing success. Ask Jamie Gorelick and Sandy Berger.

Posted by: richard mcenroe at April 29, 2009 04:15 AM (CqxjU)

13 #11

True, but I figured we needed to give them some kind of chance.

Posted by: Ack at April 29, 2009 04:15 AM (wAuU5)

14 This is, as usual for the Ninth, a seriously retarded ruling

Hey, now, there's no call for insulting retards by comparing them to the Ninth Circuit.  That's just mean.

Posted by: alexthechick at April 29, 2009 04:17 AM (SHHaV)

15 Thanks, sears. As it happens, I do have an opinion. First, when a legal area is not well-developed, use LOGIC. Second, you would think that even the barest suggestion from responsible parties of national security would trump money-grubbing civil law procedures. Third, this is what happens when we are ruled by an oligarchy of lawyers. Fourth, I think we need universal legal care, like universal health care. After all, it is a bona fide right. I'm sure all lawyers being paid like civil servants would be good for everyone. 'Course, I'd prefer the minimum wage...

Posted by: AmishDude at April 29, 2009 04:27 AM (bZ9KY)


Several aspects of this ruling really are laughable. The 9th Circuit has split hairs concerning the definition of classified and secret. If the government claims something is classified are they required as a matter of law to state a classification level, and is the Congress or the courts then free to attach various levels of admissibility and scrutiny to the sliding scale – that’s nuts.

The other truly funny part is acknowledging the plaintiffs use of the phrase “reckless disregard” concerning Jeppesen’s involvement with the flights.

Example: You’re a Mexican national smuggling illegal’s into America to work as sex slaves in the northeast. Since you’re unfamiliar with the USA, you contact AAA and ask for route planning from El Paso to New York City. They send you a map highlighted with roads, motels, gas stations and restaurants. Along the way, you are stopped by police and arrested for trafficking in humans.

What AAA did in this case, provide planning and itinerary information, and is exactly what Jeppesen does for airplanes. They have no first-hand knowledge of the cargo or its intended purpose. They simply fill a request for information. If you ask me for directions, and along the way you are killed, am I responsible for your death.

Rulings like this are why the 9th Circuit has the reputation for being a loony bin.


Posted by: Murph at April 29, 2009 04:28 AM (wdutd)

17 The ninth probably bowls like dear leader. Piss Be Upon Homey

Posted by: Mephitis at April 29, 2009 04:29 AM (ehXLT)

18 They kept the moral high ground.

They obeyed their laws.

Those will look great on our tombstone.

Posted by: tsj017 at April 29, 2009 04:31 AM (TBwnU)


Maybe Gabe can explain this, but why the fuck are these terrorist douchenozzles suing Jeppesen Dataplan over their supposedly being "renditioned"?  It's an aviation service company that sells charts (in book form), supplies and flight plan filing services to pilots.  And that's ALL.  That the courts didn't throw this out at the getgo as frivolous says a lot about how devolved the court system has become.

This is about who has the deep pockets if you ask me.  Jeppesen is owned by Boeing, so these muzzie pig fuckers figure they can cash in.



Posted by: Cave Bear at April 29, 2009 04:32 AM (TsnSg)


And not just the UK, bt there were the jihadists in Germany who were released by a civil court a few years ago too.

Posted by: andycanuck at April 29, 2009 04:51 AM (MGu62)


"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."

And this, my fellow morons, is the goal.

Legal confusion is good for business.

Posted by: BackwardsBoy at April 29, 2009 05:00 AM (ZGhSv)

22 Instead, they ignored the practical result of their decision.

Isn't that par for the ninth circuit.  Its when they start dreaming up "solutions" that it really gets ugly.

Posted by: Jean at April 29, 2009 05:16 AM (L64A6)

23 Just another example of a court insuring 'job security'.

Posted by: GarandFan at April 29, 2009 05:34 AM (C3okI)

24 But the lawyers have jobs, and more people have to listen to them.

Posted by: Harun at April 29, 2009 06:16 AM (+bIa4)


What does it take to impeach a federal judge?

If members of the judiciary (esp. it seems, the 9th circuit) keep on acting like flaming small-bus riders, why doesn't some group (I'm looking at you, RNC) find a way to start the process of removing these folks from the bench.  Is it something congress is supposed to do?  (Well, another item we didn't get to when we held the reins.)

If the judges are knuckleheads, and we allow them to go on and on as knuckleheads, we are guilty of being knuckleheads ourselves.

How do we get them off the bench?

The Republicans are supposed to be rich.  I doubt if all lawyers are Democrats.  Why can't our side file suit on everything like the other side seems to be able (and wont) to do? 

Why doesn't our side directly challenge everything that falls out of Pelosi's and Reid's mouths?  I often watch the news, and even on Fox there is little indication of response/counterpoint to the nonsense that flows from the jaws of P&R.

Are we not countering them because we feel it'd be ungentlemanly?  That "if we treat them nicely when we're the majority, they'll treat us nicely when they're the majority" idea didn't work at all, did it.  In fact, we even let them run roughshod on us when the Rs were the majority party in the House and Senate. 

(end hyperventilation)


Posted by: Unsupervised at April 29, 2009 01:05 PM (c3J00)

26 Hey.....you missed the absurdity of the UK ruling: the three were found not guilty of 7/7 because they were too busy preparing to fly to a terrorist camp. http://news.bbc.co.uk/2/hi/uk_news/7507842.stm

Posted by: Jim at April 29, 2009 03:01 PM (c7UKA)

27 Thanks a lot for this article

Posted by: acai berry kullanıcı yorumları at May 27, 2010 08:09 AM (9CdOk)

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