Just two torture memo dudes, reliving the good times:

A federal jury in Miami convicted Padilla and two others of conspiring to murder, kidnap and maim people in a foreign country, along with two counts of providing material support to terrorists. He was sentenced to 17 years and four months in prison, a lighter sentence than prosecutors had pushed for.

He sued Yoo and various government officials, claiming he suffered abuse and torture during his nearly four-year detention at prisons in South Carolina and New York. He said he endured sleep deprivation, exposure to extreme light and temperatures, threats of physical abuse and torture, denial of adequate medical care, constant surveillance and prolonged isolation.

He claimed Yoo was personally involved in the government's decision to label him an "enemy combatant." He also cited several memos written by Yoo that allegedly justified the deprivation of his constitutional rights. The memos were crafted "with the specific intent of immunizing government officials from criminal liability for participating in practices that Defendant Yoo knew to be unlawful," Padilla claimed.

U.S. District Judge Jeffrey S. White denied Yoo's motion for dismissal on all but one claim, saying the complaint "alleges conduct that would be unconstitutional if directed at any detainee."

Yoo filed a notice that he would appeal the decision to the 9th Circuit in San Francisco. Government attorneys also said they were dropping out of the case, and that Yoo would be represented by an unidentified private lawyer.

Let's hope Judge Bybee has the good sense to recuse himself from this one when it reaches the 9th -- not that Bybee has shown a lot of good sense to date.

So I checked the 11th Circuit website just to see if they have issued any orders yet overturning today's Liberty 6 convictions, but so far nothing.

But I did see this interesting opinion issued today regarding a man from Togo who was seeking withholding of removal and for relief under the United Nations Convention Against Torture.

Good thing 9th Circuit Judge Bybee was not sitting by designation because this crybaby barely got any "enhanced interrogation" and somehow the 11th still finds it to be torture:

He described his beating at the hands of the guards on the first day; he was
tied to a pole, raised two feet off of the ground and hit. After the beating, he was
“thrown in a hole where there were mice and rats” and nothing to eat or drink.
During his testimony, he described the same beating and then stated that he was
shoved in a “small cubicle.” He testified that he was not beaten on the second day.

That's it? Mice and rats ok, but no fake stinging insects? No carefully prescribed towel-wrapped smashes against a semi-flexible wall?

And this guy wasn't even waterboarded once, let alone 183 times like we do it here in America!

Togo, man, even their torture is third-rate.

So I was reading my WSJ this morning and, in addition to a nice remembrance of DUI attorney Richard Essen, came across this letter from Senator Specter:

William McGurn raises a false alarm that terrorists will flock to sue federal law-enforcement officials if my bill, the Notice Pleading Restoration Act of 2009, were enacted into law ("Terror by Trial Lawyer," Main Street, Dec. 1). Mr. McGurn's argument is so off-base that, during a hearing last Wednesday on the bill before the Senate Judiciary Committee, not a single senator—Republican or Democrat—alluded to, let alone advanced, it.

Under the Congressionally approved Federal Rules of Civil Procedure, adopted in 1938, a complaint need only include a "short and plain statement" showing the plaintiff's entitlement to relief. Two recent decisions of the Supreme Court upset the longstanding interpretations of that rule and, in doing so, bypassed Congress, which by statute must approve any changes to the Federal Rules. Bell Atlantic Corporation v. Twombly, (2007) requires not only that a complaint include specific facts—facts usually in the hands of defendants—but also that it appear "plausible." Ashcroft v. Iqbal, (2009) took Twombly a step further by calling upon judges to indulge their subjective judgment when evaluating a complaint's plausibility. My bill would do no more than restore the pleading standard that prevailed before Twombly and Iqbal.

No one can seriously claim that, before the Supreme Court raised the pleading bar in Twombly and Iqbal, federal litigation threatened national security. For decades government officials have enjoyed various forms of immunity from damages suits. As Justice Stephen Breyer pointed out in his dissent in Iqbal, moreover, the "law . . . provides trial courts . . . with legal weapons" other than heightened pleading requirements, such as tight controls on pre-trial discovery, "designed to prevent unwarranted interference" with government functions when government officials are subject to suit. If the evidence were to show that a small class of suits against government officials might threaten national security, then Congress or the Court could impose a heightened pleading requirement in that small class of cases. No such evidence was provided to the Judiciary Committee at Wednesday's hearing because there is none to provide.

Sen. Arlen Specter (D., Pa.)

Notice pleading a threat to national security?

Seriously, Rule 8(a) represents a threat to our freedoms?

That's a new one.

Perhaps we should indefinitely detain Rule 8(a) without charges and throw it in Gitmo, to be subjected to enhanced interrogation techniques endorsed by 9th Circuit Judge Jay Bybee.

(Boy we got pretty screwed up there for a while.)

Hi kids!

This time I mean it literally.

Kids who are at work today with your parents, this is what your parents do when they go to the office. They waste time and slack off in front of the computer -- just like you!

Except when they are done, they type the following:

"2.9 -- Professional development -- review new legal opinions and local bar news and analyze same."

on their timesheet.

See how easy it is to be a lawyer??

I haven't written much on these torture memos, because there is so much good content out there already. In particular I'm talking about Glenn Greenwald's ongoing takedown over at Salon, as well as UM Law Professor and uber-nudge Michael Froomkin, who has written in my view the definitive short take on the matter at his overly busy, cluttered yet entertaining blog here.

Personally, I am endlessly fascinated by the August 1, 2002 memo by then-OLC lawyer and now sitting 9th Circuit Judge Jay Bybee(!).

It's fascinating not because it is a shamefully hackneyed effort to paper over torture methods already in use and which now apparently require official legal sanction. That's obvious.

Bureaucratic hacks in a government that is based in law and has at least a mild legal tradition have always written these types of memos. I'm thinking of British memos relating for example to suppression of the Mau Mau rebellion, Nazi-era memos such as the Wannsee report or "Night and Fog" decree, even legal decrees coming out of the old Soviet Union. Hail, you can throw in the Dred Scott decision while you're at it.

What's fascinating to me is how shockingly bad it is as legal scholarship. No discussion of contrary caselaw or existing historic and legal traditions relating to the proposed torture techniques, no analysis of legislative history, no effort at statutory construction, and conclusory in the extreme to the point of parody.

Professor Heller points out that there is direct precedent relating to Nazi lawyers who approved or failed to object to "legal" activities that were nonetheless crimes against humanity. Anyone who has saw Judgment at Nuremberg knows that lawyers and judges -- acting legally in some technical sense -- must nonetheless be held accountable for the rule of law to be vindicated.

The fact that certain torture methods may have "worked" is meaningless to me. That is not the test and never was. If raping a suspect's daughter in his presence "worked" would that make it right or appropriate? How about slicing off an ear -- of course, only if it "worked."

The slippery slope speaks for itself -- or should, especially for conservatives who make fun of Stanley Fish-style "situational ethics" and think absolute values endure regardless of time, place, or emergent conditions.

There, now I'm going back to dreaming of the princess.

Oh Indiana federal district judge David Hamilton, you have been waiting eight months for confirmation to the 7th Circuit Court of Appeals. You have been endorsed by Indiana's senior Senator Richard Lugar and the Federalist Society of Indiana yet you are about to be filibustered.

President Obama and Senator Reid need to get off their arse, as the NYT editorialized Monday:

As of Nov. 4, he had nominated just 26 appellate and district court judges, and only four of them had been confirmed. Even considering that selecting Sonia Sotomayor for the Supreme Court and getting her confirmed took time, the administration’s pace has been disappointing.

On the confirmation side, the fault lies with the Senate. Obama nominees who have been reported out of the Judiciary Committee have waited months for a vote from the full Senate, far longer than is necessary.

Senate Republicans have been doing their best to drag things out. In March, every Republican senator signed an outrageous letter to the White House warning that they would filibuster any nominee from their home states if they did not approve the choice in advance. That was a dizzying reversal. In the Bush years, Senate Republicans professed to be so upset about Democrats’ filibustering that their majority leader threatened the “nuclear option,” which would have eliminated the use of filibusters for all judicial nominations.

Senate Democrats used the filibuster very selectively against Bush nominees who were true extremists. The real outrage was who was approved. Jay Bybee, the author of the infamous legal memorandums justifying the use of torture, is now a judge on the United States Court of Appeals for the Ninth Circuit in San Francisco.

The Democrats also allowed J. Leon Holmes to be confirmed to the federal bench in Arkansas. He had made a number of offensive statements about women, African-Americans and gay people. In 1997, he wrote that in marriage, “the woman is to place herself under the authority of the man.”

Republican senators, by contrast, are unreasonably opposing good nominees who are well within the legal mainstream. A current example is David Hamilton, a distinguished federal district court judge in Indiana who has been nominated to the United States Court of Appeals for the Seventh Circuit in Chicago. Judge Hamilton has decidedly moderate legal views and strong centrist credentials, including the enthusiastic endorsement of Richard Lugar, an Indiana Republican. Judge Hamilton in no way resembles extreme Bush nominees that Democrats opposed.

Apparently, however, Judge Hamilton, like Justice Alito before him, thinks judges should employ the dreaded "empathy" bomb:

Jeff Sessions, the top Republican on the Judiciary Committee, today told reporters that he plans on filibustering David Hamilton, President Obama's nominee to the 7^th Circuit Court of Appeals. “I intend not to support going forward on the Hamilton vote,” Sessions said. “Unlike Justice Sotomayor, when asked to discuss the empathy standard he has embraced it.”

Senator Sessions, you are a tool and hypocrite of the highest order. May you never need the empathy you seek to purge from our judges.

If today was not an endless highway,
If tonight was not a crooked trail,
If tomorrow wasn't such a long time,
Then lonesome would mean nothing to you at all.
Yes, and only if my own true love was waitin',
Yes, and if I could hear her heart a-softly poundin',
Only if she was lyin' by me,
Then I'd lie in my bed once again.

I can't see my reflection in the waters,
I can't speak the sounds that show no pain,
I can't hear the echo of my footsteps,
Or can't remember the sound of my own name.
Yes, and only if my own true love was waitin',
Yes, and if I could hear her heart a-softly poundin',
Only if she was lyin' by me,
Then I'd lie in my bed once again.

There's beauty in the silver, singin' river,
There's beauty in the sunrise in the sky,
But none of these and nothing else can touch the beauty
That I remember in my true love's eyes.
Yes, and only if my own true love was waitin',
Yes, and if I could hear her heart a-softly poundin',
Only if she was lyin' by me,
Then I'd lie in my bed once again.

Huge and well-deserved victory for our own David O. Markus as Judge Gold drops a bomb on Alex Acosta's office:

The judge reprimanded the two trial prosecutors, saying that along with Drug Enforcement Administration agent Christopher Wells, they “acted vexatiously and in bad faith” in prosecuting Dr. Ali Shaygan. Also reprimanded was assistant U.S. Attorney Karen Gilbert, the narcotics section chief.

Gold called the secret taping of phone calls to Shaygan’s attorney and defense investigator by two informants was “profoundly disturbing.” He raised the specter of the recent dismissal of a conviction against former U.S. Sen. Ted Stevens, R-Alaska, because prosecutors in that case withheld key evidence.

The $601,795 covers court fees and lawyer costs dating from a superseding indictment filed by prosecutors in September.

“The order speaks for itself. We regret that any of this ever happened in the first place but we are grateful that Judge Gold took it seriously and did the right thing,” said Miami criminal defense attorney David O. Markus, the lead counsel for Shaygan. “Thank goodness that the conduct did not distract the jury from finding Dr. Shaygan not guilty of all 141 counts against him.

Miami attorneys Marc Seitles and Robin Kaplan served as co-counsels for the defense.

You can read the order here.

Alex has other not-so-great coverage in the DBR here.

I previously covered Alex's alleged supervision of rogue Christian Bradley Schlozman and his unsolicited intervention in the Ohio election process.

His defense on that -- that I was just informing those poor black voters about their legal rights -- is particularly lame.

I like Alex. He doesn't strike me as aggressively ideological, and his office is filled with many talented attorneys who take their charge as public servants seriously. And of course he is not solely responsible for this Judge Gold order.

But as I say about Frankie boy and 9th Circuit torture judge Jay Bybee, this stuff kinda matters.

It's easy to have integrity and to be highly ethical when you are not particularly pressed by a superior or government to do something possibly dubious or questionable. That's 98 percent of your life.

It's what you do in the other 2 percent that matters.

And that doesn't mean people don't make mistakes sometimes and can't ever do the right thing again. They do and can.

But if you are in denial mode about the original questionable action it is hard to move past it and for others to have confidence in your judgment in the future.