This is where there is a paucity of case law – where the action undertaken is one expressly prohibited by the Constitution. There, I just don’t see how even an absolute immunity argument can hold.

Again, conceptually I agree, but a great many of the cases I have seen in the courts I have been around were exactly this as they are based on clear violations of fourth and/or fifth Amendment grounds, often after the underlying criminal trial court had specifically found direct and egregious violations of said rights. Same result.

bmaz – I definitely agree with you on the practicalities of how scope of authority is often treated by the courts, but I think we are “talking down different paths” so to speak. *g* What has not been addressed much in case law is what happens to a scope of authority argument for immunity when the person does something prohibited by the Constitution.

Granted that Cheney’s office’s participation in outing a CIA agent is beyond the pale, I think that is distinguishable on a couple of grounds. First grounds is that no one found any IIPA or statutory violation (which is pretty hard to believe, still) only certain persons fibbing and Cheney isn’t one of the ones found to be fibbing. I do think that if there had been any criminal violation provable, he’d have had a much harder time arguing that it was within the scope of his authority to commit crimes.

More to the point for some of what I conflated (torture and snooping kind of being rolled into one ball) the Constitution doesn’t specifically prohibit outing covert agents. However, the Consitution does prohibit general warrants, does prohibity the Executive Branch from acting as Judicial and Legislative branches and vice versa (ok – lets keep it simple and ignore admin law for now where yes, the Exec does its own amount of legislating and judiciating), does prohibit attainder, does prohibit cruel and unusual punishment, etc. This is where there is a paucity of case law – where the action undertaken is one expressly prohibited by the Constitution. There, I just don’t see how even an absolute immunity argument can hold.

Now, will there be lots of arguments that can be made to the contrary? Sure – and there will be every possibility that a Judge will convolute to find authority, especially a Dist. Ct. Judge (where have all the Judge Keith’s gone *sigh*) and especially where most law on authority skews to cover. But the whole reason a Bivens action exists against the individuals, as opposed to a recovery from the sovereign, is the concept that it is NOT within authority to violate the Constitution.

So I think we are in violent agreement that the courts will not make any actions of this kind easy to carry. But I do think that enough can be crafted together to give the telecoms and their Presidents, CEOs, the specific AGs involved, etc. some real, true fits under a theory other than FISA or privacy statutes statutory recovery and to give them fits that Congress can no more foreclose those separate, Constitutionally based, claims with amnesty than they could amend the Constitution by themselves – they cannot take the limits that the people spelled out in the Constitution and negate them by making the Executive Branch and its agents free to violate them by legislation, and they cannot by legislation take away the rights the citizens retained by granting amnesty for those violations.

Winners as arguments? Probably not in this country any more, but definitely I think some good enough arguments to keep the telecoms on edge for awhile even if there is amnesty. The problem for that approach, though, does go to who will be able to show damages to get past standing? There won’t be the assumed damages of the FISA statute. The Sixth Circuit case – did it get appealed on or was cert denied on it? That may set the scene to undercut any Bivens type of action – if the denial of standing by the 6t had cert denied.

Work calls.

if the items are worthy, lawmakers should debate them in the open and hold a public vote.

That’s an AP paraphrase; they did not use quotes.

But it strikes me that the very same idea should be turned around and used with regard to immunity.

if immunity is worthy, lawmakers should debate that in the open and hold a public vote.

Clearly it’s a “judicial earmark.” But how can a legislature intrude on the judiciary?

“That is the problem Bush faces as he prepares to deliver his seventh and probably final State of the Union address tonight. For the first time in four years, he will come before Congress able to report some progress in tamping down violence in Iraq. Yet the public appears to have moved on from the war — and possibly from Bush himself.”

I have run Safari no problem on a Windows box.

The MacBook Air is interesting–I haven’t seen one up close yet.

I see them everwhere, and can never understand the stats that show the boxes are only about 4-5%. I also think both companies should make it very easy to use the others’ software including the OS’s. You shouldn’t have to play with virtual machines to run OS X Leopard on a Windows box.

One of the next big waves is going to be small internet machines that do what the Iphone does, and more but are cheaper. It’s a shame the Itouch can’t email–that was a deliberate decision and can be corrected if Apple wants to.

Your throwing down the gauntlet to Clinton and Obama is great.
Leadership indeed.

bmaz, why cannot any ‘unconscionably contorted’ legal opinion be revisted on the offending jurists if and once this nightmare is over?

…the concept of absolute and even qualified immunity has been as applied to act within the scope of the sovereign’s delegated authority. There really isn’t much that speaks to acts that exceed express limitations on that authority set forth in the Constitution, but I think that argument, as an argument, flies.

Actually, that law is out there; the problem is that there is literally about nothing that won’t be unconscionably contorted into “the course and scope” by Federal trial judges. Take, for instance, the contortions in the Plame/Wilson civil suit by Bates. Please. I have personally seen worse than that to be honest; not that Bates wasn’t awfully bad, he was. But that is what you face when litigating this stuff. Conceptually I am all in with you; but I have to be honest about what I have seen in practice, and it isn’t pretty or right. Yet there it is. Agree totally with your take on Cook; however, I really thought she would hammer Padilla far more than she did (even though the whole thing ought to have been bounced). As much of a cop out as it was, it was better than I expected and could not have made the Torture Twits happy.