Friday, August 10, 2007

U.S. v. Aukai (9th Cir. - Aug. 10, 2007)

We're better at catching people who use methamphetamine than we are are catching terrorists. Even in airports.

This en banc opinion is worth reading wholly apart from the merits. If only because Judge Bea writes an opinion that is deliberately -- and pervasively -- centered around 9/11; indeed, so much so that Judge Graber (joined by Judges Hawkins and Wardlaw) writes a concurrence that says that while they agree with the result, they "cannot join the majority’s irrelevant and distracting references to 9/11 and terrorists."

I especially liked footnote 7 of the majority opinion, in which Judge Bea includes a half-page definition of what the colloquial term "terrorist" means. Because a reader definitely could not understand the following sentence -- "Such a rule would afford terrorists multiple opportunities to attempt to penetrate airport security by 'electing not to fly' on the cusp of detection until
a vulnerable portal is found" -- without a lengthy footnote after the word "terrorists" that defined the term.

On the merits, every member of the 15-judge panel agrees that the search here was okay. But an interesting tangential disagreement regarding how much one targets an opinion specifically to the "post-9/11" world.