Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—September 18

The logo of the U.S. Central Intelligence Agency in the lobby of the CIA headquarters in Langley, Virginia March 3, 2005. (Jason Reed/Reuters)

2017—Evidently unhappy that a criminal defendant wasn’t making sweeping attacks on the statute under which she was convicted, a Ninth Circuit panel presided over by Stephen Reinhardt issues an extraordinary order, months after oral argument, inviting three left-wing organizations to file amicus briefs that make those attacks.

In May 2020, the Supreme Court, in a unanimous opinion by Justice Ginsburg (in United States v. Sineneng-Smith), will determine that the Ninth Circuit panel “departed so drastically from the principle of party representation as to constitute an abuse of discretion.” Ginsburg faults the panel for its “takeover of the appeal,” for intervening to displace the arguments made by “competent counsel” on Sineneng-Smith’s behalf and to substitute instead a “radical transformation” of the case that “goes well beyond the pale.”

2019—In an action filed by a suspected Al Qaeda-associated terrorist to obtain information related to the CIA’s covert activities in Poland, a divided panel of the Ninth Circuit (in Husayn v. United States) directed the district court to try to “disentangle” information that supposedly wasn’t protected by the state-secrets privilege from that which was.

In July 2020, twelve judges will dissent from the Ninth Circuit’s refusal to rehear the appeal en banc. As Judge Daniel Bress sums things up:

“The serious legal errors in the majority opinion, and the national security risks those errors portend, qualified this case for en banc review. The majority opinion treats information that is core state secrets material as fair game in discovery; it vitiates the state secrets privilege because of information that is supposedly in the public domain; it fails to give deference to the CIA Director on matters uniquely within his national security expertise; and it discounted the government’s valid national security concerns because the discovery was only sought against government contractors—even though these contractors were the architects of the CIA’s interrogation program and discovery of them is effectively discovery of the government itself.”

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