The Unindicted Co-conspirator Trick Pt. 2

A prosecutor has many tools in his bag of dirty tricks. One we discussed in relation to Enron and AIG was the "unindicted co-conspirator trick” which allows the prosecution to block unfavorable witnesses from testifying for the defense. At the time we concluded, “The unindicted co-conspirator trick was so successful in the Enron, that we’re sure to see it used more frequently in the future.”

That didn’t take very long.

Today the WSJ Blog has a story about the feds using this tactic without even the pretense of justification:

According to a memo, filed today in Texas district court on behalf of the Islamic Society of North America and the North American Islamic Trust — both of which were named as “unindicted co-conspirators and/or joint venturers” in an appendix that was attached to the brief — the government allegedly violated the Fifth Amendment in providing no explanation for its description of them as unindicted co-conspirators. The organizations, rep’d by ACLU lawyers, argue that, under Fifth Circuit law, “no legitimate governmental interest is served by an official public smear of an individual when that individual has not been provided a forum in which to vindicate his rights.”

The relief? They want a Fifth Amendment violation declared by the court, an order expunging their names from any public document filed that identifies them as unindicted co-conspirators and an order enjoining the government from identifying them as unindicted co-conspirators in another context other than that specifically permitted by the court.