Speaking of judicial activism, a federal judge has just ruled that there was a link between Saddam Hussein and al-Qaeda

“I conclude that plaintiffs have shown, albeit barely, by evidence satisfactory to the court, that Iraq provided material support to bin Laden and al-Qaeda,” Baer said in his ruling.

The “evidence” was based on a statement made by Secretary of State Colin Powell before the UN Security Council on February 5.

Baer also cited claims by former CIA director James Woolsey that the apparent leader of the September 11 hijackers, Mohamed Atta, met an Iraqi intelligence agent in Prague in April 2001.

Not only is this an absurd decision, but the way the judge reached it is a great example of legal trickery. The first thing worth noting is that Section I of the opinion (which can be found here.) states the circumstances under which the decision was made :

None of the defendants has appeared and consequently the Court granted a default judgment against Saddam Hussein on February 21, 2003, and against all other defendants (including Iraq) on December 23, 2002.

That said, there was absolutely no defense put up during this whole trial. (I think Iraq may have had other more pressing matters on their minds in late Feb.)

Secondly, the plaintiffs of the case successfully argued for a reduced burden of proof in deciding the case (Sec. II.B.1.a.). The final burden as decided by the court was ?a legally sufficient evidentiary basis for a reasonable jury to find for plaintiff?, despite the fact that “Congress intended a heavier burden than the generally accepted burden where the defendant has defaulted”. The plaintiffs argument for a reduced burden to prevent the defendants from defaulting in order to prevent discovery was shot down :

However, the plaintiffs in the cases discussed supra have apparently not been prejudiced by the lack of access to discovery, nor have the plaintiffs in this most extraordinary case. The matters which plaintiffs seek to prove are identical to those that our government has sought to uncover and prove. However strong the engine of discovery for uncovering the truth may be, it pales in comparison to the combined resources of the United States law enforcement, military, and intelligence agencies, who have bent every effort to make the case that Saddam Hussein was involved in the September 11 attacks.

If there wasn’t any reason to believe there was anything blocking the defendants right to gather evidence, why was there such a low burden of proof?

Although the article above quotes Judge Baer’s conclusion that the evidence “albeit barely” showed links between Iraq and al-Qaeda, it leaves out the most damning parts of the paragraph (emphasis added) :

A very substantial portion of plaintiffs evidence is classically hearsay (and often multiple hearsay), and without meeting any exceptions is inadmissible for substantive purposes. Thus, the hearsay rule prevents the Court from considering as substantive evidence: the Ambassador of the Czech Republic?s letter which repeats Minister Gross?s statement about a meeting between Atta and al Ani in Prague, the contacts described in CIA Director Tenet?s letter to Sen. Graham, the evidence that Secretary Powell recited in his remarks before the U.N., and the defectors? descriptions about the use of Salman Pak as a camp to train Islamic fundamentalists in terrorist. However, the opinion testimony of the plaintiffs? experts is sufficient to meet plaintiffs? burden that Iraq collaborated in or supported bin Laden/al Qaeda?s terrorist acts of September 11. Although these experts provided few actual facts of any material support that Iraq actually provided, their opinions, coupled with their qualifications as experts on this issue, provide a sufficient basis for a reasonable jury to draw inferences which could lead to the conclusion that Iraq provided material support to al Qaeda and that it did so with knowledge and intent to further al Qaeda?s criminal acts.

In short, “Most of your evidence is bullshit, but since we’ve set the bar so low, the unchallenged opinions of your experts is good enough.”