Terrorism

• Pages: 8-10

8Volume 18, January–March 2012 international law update

© 2012 Transnational Law Associates, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com

nd that the information sought is solely for the

purpose of harassment. is discretion does have

some limitations.

“District courts must exercise their discretion

under § 1782 in light of the twin aims of the

statute: providing ecient means of assistance to

participants in international litigation in our federal

courts and encouraging foreign countries by example

to provide similar means of assistance to our courts.

We have thus held, for example, that although there

is no requirement under § 1782 that the type of

discovery sought be available in the relevant foreign

jurisdiction, a court may look to the nature, attitude

and procedures of that jurisdiction as ‘useful tool[s]’

to inform its discretion.” [Slip op. 9]

e Plainti argued that the district court had

misconstrued the “for use” requirement of § 1782

as requiring that the Plainti show that the foreign

tribunal would admit the material sought. e

Court agrees. “As in [Intel Corp. v. Advanced Micro

Devices, Inc., 542 U.S. 241, 264-65 (2004)] there is

no statutory basis for any admissibility requirement.

If Congress had intended to impose such a sweeping

restriction on the district court’s discretion, at a time

when it was enacting liberalizing amendments to the

statute, it would have included statutory language to

that eect.” [Slip op. 11]

e Court states that the district court should

not have been concerned with admissibility abroad

because it is up to the foreign tribunal to determine

this issue. e German appellate court is free to admit

or exclude any evidence it so chooses. Requiring a

district court to apply the admissibility rules of a

foreign jurisdiction would require interpretation

and analysis of foreign law, which the Court nds

to be fraught with danger. “Accordingly, as a district

court should not consider the discoverability of the

evidence in the foreign proceeding, it should not

consider the admissibility of evidence in the foreign

proceeding in ruling on a section 1782 application.

We join our sister Circuits in coming to this

conclusion.” [Slip op. 12]

“IKB contends that, although there is no

foreign admissibility requirement, the receptivity of

the foreign court to the evidence sought is a relevant

consideration when a district court decides how to

exercise its discretion. Accordingly, IKB argues that

the District Court properly concluded that, since

the evidence would likely not be admitted in the

proceeding before the German appellate court,

it was being sought for purposes of harassment

because it would be used in other cases brought by

Plainti’s German counsel.” [Slip op. 13]

“We recognize that section 1782(a) gives

discretion to the District Court, as it authorizes, but

does not require, a federal district court to provide

judicial assistance to foreign or international

tribunals or to interested person[s] in proceedings

abroad. Indeed, we have armed denials of section

1782 applications where, although the statutory

requirements of section 1782 were met, the twin

goals of the statute were not.” [Slip op. 13-14]

erefore, the district court exceeded its discretion.

: Brandi-Dohrn v. IKB Deutsche

Industriebank AG, No. 11-4851-cv, 2012 US App.

LEXIS 4719 (2d Cir. Mar. 6, 2012).

TERRORISM

T F C  

’     

P     

      

     

   U

S  

Plainti Jose Padilla, a United States citizen and

member of al Qaeda, has been taking part in the

organization’s terrorist missions since the 1990s. He

was convicted in the U.S. District Court for South

Carolina of conspiring with others within the United

States to support al Qaeda’s global campaign of

terror. Moreover, he had traveled to Afghanistan in

2000 to receive combat training. After al Qaeda had

killed over 3,000 people in the September 11, 2001

attacks on the United States, Congress empowered

the President to use his war making power to defeat

the terrorist threat.

While the U.S. military was in combat against

al Qaeda in Afghanistan, Padilla orchestrated his

return to the United States from Afghanistan. After

arriving in Chicago, FBI agents arrested Padilla

after he falsely denied that he had ever visited

Afghanistan. e government rst conned Padilla

in a federal detention center in New York.

After deciding that Padilla possessed vital

intelligence and posed a threat to the U.S., President