As we’ve known for years, the May 6, 2004 OLC opinion authorizing the warrantless wiretap program shifted the claimed basis for the program from inherent Article II power to a claim the Afghanistan AUMF trumped FISA. But one problem with that argument (hard to fathom now that Afghanistan has once again become our main forever [...]

Josh Gerstein reports that the government has withdrawn from defending Donald Rumsfeld and others in the Jose Padilla suit Judge Richard Mark Gergel dismissed the other day. (h/t MD) The Justice Department under President Barack Obama has quietly dropped its legal representation of more than a dozen Bush-era Pentagon and administration officials – including former [...]

Here’s the main thrust of Judge Richard Mark Gergel’s decision to dismiss Jose Padilla’s Bivens suit against Donald Rumsfeld and other high level Bush officials who denied him his Constitutional rights. The Court finds that “special factors” are present in this case which counsel hesitation in creating a right of action under Bivens in the [...]

The NYT has a worthwhile editorial lambasting the Obama DOJ’s pursuit of SCOTUS review in Ashcroft v. al-Kidd, which will probably result in expanded immunity for government officials that abuse the law so as to abuse the rights of Americans. The editorial focuses closely on the way in which DOJ’s defense of absolute immunity amounts [...]

Predictably, Politico piles onto the latest installment of the McCarthyist attacks on DOJ, largely repeating the attack as made by Dana Perino and Bill Burck. The one thing it does add is some discussion of what Eric Holder should have disclosed at his confirmation hearings last year. Holder didn’t mention the brief during his confirmation [...]

As Jake Tapper reports, the next attack the McCarthyites have planned is on Eric Holder, for once saying in an amicus curiae brief that it’s possible following the Constitution will make it harder to detain potential terrorists. In 2004 Attorney General Eric Holder was one of four former Clinton administration officials offering an amicus brief [...]

Now that the Office of Professional Responsibilty (OPR) report (Report) on the rather ambiguously defined subject of the “torture memos” has been released, the problems with the report and with the whole process surrounding the report are becoming more and more evident.   Bmaz has provided, here, a wonderful look at one of the many issues that affect [...]

My last post called Jay Bybee’s response to the OPR Draft, written by Maureen Mahoney, “funny” (as in, stinky) because neither the response nor Tim Flanigan’s declaration included in the response provided any details of the key July 16, 2002 meeting described in the OPR report. But there’s something about Mahoney’s response which is even [...]

In response to the news that David Margolis spiked the misconduct conclusion in the OPR Report on OLC justifications for torture, I wanted to put together a timeline of its construction. Two things stick out. First, the role of Mary Patrice Brown–who replaced Marshall Jarrett at a time when OPR was backing off its offer [...]

Yoo casts himself here as a mere lawyer, but he was much more (and much less). So reads the Padilla response to Yoo’s efforts to dismiss Padilla’s suit against him. Padilla’s team goes on to argue why the 9th Circuit must allow Padilla’s suit against Yoo for violation of his constitutional rights to continue. The [...]