The Obama Tyranny

It’s a… light tyranny.

That’s all I got… and had to dip into the Arrested Development well for it.

Memo to DOJ: Queen Tranny J. Edgar Hoover is dead.

Plus Spiderman: the Musical.

FBI: Famous But Incompetent

@redmanlaw: Ever seen the movie about Roy Cohn starring James Woods? what a bunch of lunatics.

@jwmcsame: Loved it.

@Benedick: I heard a song from that show played by U2 live a couple of weeks ago. I’m a huge fan, so I loved the guitar playing, thought the melody was OK, but nothing special lyrically. I thought that show was going to be a flop from the get go. Almost no one is interested over on the boards at U2.com.

U2 “Boy Falls From the Sky”
http://www.youtube.com/watch?v=ULboD3Dcbns&feature=related

SCOTUS granting cert makes me nervous. The last time they granted cert in a 9th Circuit terrah case they wound up overturning the 9th (obviously) and in the process making horrific law about the standard used in pleadings to file the initial case, which has had a huge impact far outside of the terrorist policy litigation. See Ashcroft v. Iqbal (2009). Also, the decision by the entire 9th this spring to deny a motion for a rehearing en banc had 8 judges dissenting, and the Supremes probably will slap around the 9th for not doing an en banc hearing first.

Kagan also is going to have to recuse herself because she worked on the Administration’s appeal when she was Solicitor General. So that gets us to a 5-3 decision, unless Scalia gets a fit of libertarianism and decides to uphold the 9th Circuit, in which case it’s a 4-4 tie and the 9th Circuit decision stands.

But what I need to go check now is whether the 9th said that Ashcroft is personally liable. Normally government officials are sued in their official capacity (thus why the government attorney defends him) and the question hinges on whether or not the official has absolute or qualified immunity (and from what I’ve seen briefly on SCOTUS granting cert, that’s one of the issues they certified). Absolute v. qualified immunity is a defense in Section 1983 suits against government officials (42 USC 1983 is the Civil Rights Act that allows people to sue the government to vindicate their constitutional rights) and it gets into a fact-finding analysis as to whether there was clear settled law at the time of the rights violation that the actions violated the law. Ashcroft also can argue prosecutorial immunity. Very very rarely are government officials sued in their individual capacity, i.e. you’ve got to go hire your own attorney and if you lose they can take your house, etc. And I would imagine the ACLU wouldn’t do that because it would have given an easy out for the courts to toss the case.

So my kneejerk conclusion – expect some more bad caselaw.

/off to read the briefs

Christine O’Donnell is breathtakingly ignorant.

Jump to 7 minutes 6 seconds if you’re short on time.

@SanFranLefty: Per the 9th Circuit opinion, it was a Bivens action, not a 1983 action, against Ashcroft in his official capacity as AG. (ADD: Now that I’m caffeinated, duh, on my part, no coffee isn’t an excuse for not remembering 1983=cases against state officials and Bivens=feds).

Here’s a good explanation of immunity from the opinion:

The doctrine of qualified immunity seeks to ensure that governmental officials have “fair notice” that their specific actions violate a constitutional right. Hope v. Pelzer, 536 U.S. 730, 739-40 (2002). “It is not necessary that the alleged acts have been previously held unconstitutional, as long as the unlawfulness [of the defendants’ actions] was apparent in light of preexisting law.” Malik v. Brown, 71 F.3d 724, 727 (9th Cir. 1995). “[O]fficials can still be on notice that their conduct violates established law even in novel factual circumstances.” Hope, 536 U.S. at 741. In fact, the absence of cases evaluating whether certain policies are constitutional “may be due more to the obviousness of the illegality than the novelty of the legal issue.” Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002). And where the courts do not have the benefit of factually analogous case law to assist with illuminating the parameters of the constitutional right, “general statements of the law” and “general constitutional rule[s] already identified in the decisional law” can adequately furnish the required fair warning to government officials about the constitutionality of their conduct. United States v. Lanier, 520 U.S. 259, 271 (1997).

@SanFranLefty: Yeah, I was cheating the summary, which also involves pretexting. (Although the 9th spitball fight is entertaining, for those who are entertained by such things.) It’s the consequence I was emphasizing: If the 9th opinion holds (fat chance), AGs are personally liable for monetary damages.

I got a headache trying to grasp what Dear Leader was on about here but it seems to me impossible to hold a public servant personally accountable for decisions made in official capacity. There could be no government. Or is that not what this is about? In which case, never mind.

@redmanlaw: The songs aren’t really the issue. Good music helps but isn’t essential to a musical – according to Marvin Hamlish. It’s the story that counts and how that story is told. Besides, they’re aiming for the Cirque de Sogay crowd more than aging rockers.

@nojo: I have to say that I think the dissent in the 9th Circ decision is right to say that the majority is stretching to say that a government official is individually and personally responsible for monetary damages for the actions of his subordinates in swearing out a false affidavit. (However, it should be noted that this particular issue was not certified by the Supreme Court). Frankly, even if the 9th Circuit’s view that he’s personally liable for his own actions authorizing the program holds, which I’d be shocked if the 9th Circuit’s position is upheld, he’ll be indemnified by the government. It’s not like Ashcroft’s house is going to get a lien slapped on it.

I just hope that we don’t have another Iqbal situation where the holding isn’t that narrow and it fucks over people in a variety of other litigation contexts.

I realize this is only tangentially related, but I thought it was interesting:

Pilot tells his TSA-is-evil story — you like being told you’ll need a strip search, right?

@SanFranLefty: Agreed. Reading the 9th opinion — and considering that Ashcroft didn’t instruct the agent to lie to the judge about the warrant — the whole thing struck me as a stretch.

But surely the dude must have some recourse. That’s why I focused on his story instead of the case details. If the guvmint can get away with screwing him like that, something’s terribly wrong.

Yeah, I know. Film at 11.

But where does it say gummit officials are automatically “Not Guilty By Reason of Wealth & Power,” like in real life?

@Benedick: It is as you say, fear of constant lawsuits would do to to all of government what it has done to schools and other segments already. There does come a point where for practical reasons the remedy must be political and not judicial. Practicality and the greatest good for the greatest number are values that are lost on true believers.

@¡Andrew!: Public officials are, and always have been, immune for liability for policy decisions, under several different theories. They can be liable in specific instances for their own conduct, however.

@Prommie: They will go after the universities next: to suck out of them all the accrued capital.

@nojo: The dude has already had recourse against several of the wardens, the history says, and BTW, the government is the one that pays, under respondeat superior and indemnification principles.

Let me put it this way, how did you feel about the Paula Jones suit against Bill Clinton, the Scaife-funded lawsuit that resulted in his impeachment? Was that a good thing, allowing civil suits against a president in office?

If the case against Ahcroft is allowed to proceed, how many politically motivated suits will then be brought against Obama and his cabinet, funded by the Kochs and Scaifes of the world?

As I said, practicality has its place, and beware unintended consequences.

@Benedick: Now that you mention it, if I had been properly mentored and advised while at my alma mater, I would have found my true vocation in life, and would have happily prospered; what is the worth, of the decades of frustration and poverty, what could ever, really, compensate me, for a lost and wasted life, the direct result of their breach of contract and/or negligence?

@Prommie: That’s certainly what the Administration is arguing — Pandora’s Box. That’s also the excuse for not going after Cheney.

And yes, the wardens (or their employers) settled, but that’s like nailing the guards for Abu Ghraib.

An innocent dude was yanked off the street (or from the airport) specifically because a crooked agent was following the loose detention policy of Ashcroft. Ashcroft may indeed have enough deniability in the matter to be held harmless, but culpability needs to go higher than it has so far.

If seeking justice for a manifestly tyrannical crime against an American citizen has unintended consequences, then so be it. Because otherwise the next unintended consequence will come courtesy of AG Todd Palin.