The [Ninth Circuit] seems to have cherry-picked the aspects of our opinions that gave colorable support to the proposition that the un-constitutionality of the action here was clearly established.
Qualified immunity gives government officials breathing room to make reasonable but mistaken judgments about open legal questions. When properly applied, it protects ‘all but the plainly incompetent or those who knowingly violate the law.’ [Former Attorney General John] Ashcroft deserves neither label, not least because eight Court of Appeals judges agreed with his judgment in a case of first impression.
Everybody has an opinion on whether or not the Obama administration should release kill shots of Osama bin Laden. It’s a tough question. And there are intelligent ways to disagree with the president’s opinion (see Jon Stewart’s impassioned plea). Or you could just call the president a pussy accuse the president of “pussyfooting” on Twitter, because that shows real leadership.
Those are fine responses for former half-term governors and pundits in the public eye. But lawyers are going about the picture issue in a much more interesting manner. Before asking if Obama “should” release the Osama photos, lawyers are wondering “does he have to,” if served with a FOIA request.
It depends, but the question itself is a helpful reminder that we are a nation of laws…
* DOMA dude Paul Clement filed his first brief as lead counsel for 26 states seeking to nullify Obamacare. In a land of socialist, freeloading, hippie queers, one man stands alone. [Atlanta Journal Constitution]
* Actually, that’s not true — The Cooch has Clement’s back (twhs), Tweeting all the misspelled and hilarious punchlines that are fit to print. [The Virginian-Pilot]
* Eric Holder defended the legality of the Osama killing on Capitol Hill yesterday. In prepared remarks, he said, “If history has taught us anything, it’s that you can kill anyone.” [CNN]
* I don’t want to intrude on Lat’s beat here, but Ponzi schemer Scott Rothstein’s pad sounds pretty nice. Bet it even has a foyer, whatever the hell that is. [WSJ Law Blog]
* Irving Picard has asked a judge to allow him to start making disbursements to Madoff’s victims. Victims stand to receive a coupon book valued at over 200 dollars, a free subscription to Cat Fancy, and a lifetime’s supply of Spanx for Men. [Reuters]
* Chris Simms, guilty of poor quarterbackery, was found not guilty of smoking drugs and driving. [New York Post]
Imagine what would have happened if the Obama administration had been running things immediately following 9/11. After their “arrest,” we would have read [Khalid Sheikh Mohammed] and [Abu Faraj al-Libi] their Miranda rights, provided them legal counsel, sent them to the U.S. for detention, and granted them all the rights provided a U.S. citizen in criminal proceedings.
If this had happened, the CIA could not have built the intelligence mosaic that pinpointed bin Laden’s location. Without the intelligence produced by Bush policies, the SEAL helicopters would be idling their engines at their Afghanistan base even now. In the war on terror, it is easy to pull the trigger — it is hard to figure out where to aim.
– Professor John Yoo, in an opinion piece in today’s Wall Street Journal. While serving as a Justice Department official in the Bush Administration, Professor Yoo provided legal analysis supporting the application of enhanced interrogation techniques to terror detainees — techniques that may have yielded information used in locating Osama bin Laden.
(A counterpoint to Professor Yoo — we believe in presenting both sides here at Above the Law — appears after the jump.)
I don't think anybody needed to hear testimony from this guy.
As you might have heard, United States special forces killed Osama Bin Laden. Let’s take a moment to be happy about that, but also to remember Bin Laden’s many, many victims.
Thank God he was killed, not “captured.” If he had been captured, there would have been some kind of trial. Some kind of fake, orchestrated, television show of a trial. Lawyers, judges, and others would have danced around trying to give Osama bin Laden the appearance of a fair hearing before his inevitable execution. It would have been a farce — a farce that our military and/or civilian courts are not equipped to handle.
Better for Bin Laden to meet his end as he did: via a double tap from a Navy Seal….
* Did Malcolm Gladwell’s endorsement lead to an increase in Colorado Law applicants? Malcolm Gladwell, a man whose book Blink was described by Richard Posner as “written like a book intended for people who do not read books.” [Law Week Colorado]
* A litany of legal challenges faces the Obama administration now that they’ve backtracked on Khalid Sheikh and the boys. [msnbc.com]
* The Supremes ruled against Arizona taxpayers who claimed a tax credit for religious school donations was unconstitutional. Justice Kagan popped her dissent cherry on this one. [NPR]
* Connecticut looks to “add teeth” to a law that attempts to determine whether racial profiling exists in the state. Sorry, I don’t find anything funny about racism. Unless, of course, we’re talking about the basketball scene in Soul Man. [Hartford Courant]
* Google has bid $900 million on a whole bunch of patents. Meanwhile, the patent to Google Wave is being peddled for two dollars and a box of envelopes. [Financial Times]
* Khalid Sheikh Mohammed will be tried by a military commission at Guantanamo, but John Yoo is still not satisfied. He wants to capture people and hold them indefinitely without trial proof that the Obama Administration can conduct terror trials successfully. Obviously, the elegant solution is to make KSM live in Yoo’s basement until one of them begs for an impartial arbiter. [Ricochet]
* If you ever read the warnings on your prescriptions, I think this is what you’ll see (by Jeremy Blachman). [McSweeney]
* Yesterday, the Supreme Court agreed to decide whether Congress may take works out of the public domain and slap a copyright on them. I’m never going to fill this Zune up if I can’t score some free Stravinsky. [Wired News]
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