The unexpected

More delicious NSA revelations ... Getting off the no-fly list ... Guantánamo update ... Remaking the law of war ... Botched executions ... Wall Street's lack of conviction ... Roger Fitch files from Washington 

In December, DC District Court Judge Richard Leon unexpectedly did the right thing and ruled that the NSA spying on American phones was illegal, more here.

Some are suspicious of the decision, as it was issued by a notorious Republican operative.  

The appeal will be interesting, with four new Obama appointees on the DC Circuit bench. 

Leon's decision offended the usual suspects, e.g. the Bush Gang's torture memo man Stephen Bradbury and other detritus from the ancien regime.   

Shortly thereafter, these gentlemen were gratified by a decision of the Southern District in NY that found the same program to be legal.  

The NY Times was appalled.  

The New Yorker sums it up here.  

Meanwhile, in other NSA cases it is defending, the government has doubled-down with secrecy claims. More here.

The government's constant mantra that disclosure "could ... cause exceptionally grave damage to the national security" increasingly seems made in bad faith, simply to prevent judicial scrutiny of illegal conduct.

Despite his lawyers' stance in the courts, President Obama appointed a body to review the NSA, which duly reported back. 

The report of Intelligence and Communications Technologies included the intriguing comment that, "governments should not use their offensive cyber capabilities to change the amounts held in financial accounts or otherwise manipulate the financial system". Who knew?

More here.  

Der Spiegel continues to have some of the most delicious NSA revelations, such as the hacking tools hawked by its Tailored Access Operations division, featuring an actual product catalogue. More here.

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A Malaysian scholar has finally won her nine-year battle to be taken off the Transportation Security Administration's no-fly list, and she's the first.  

It turns out that in her case it was all a terrible mistake (fact findings here).  

So why did the government fight her up and down the courts for years?

So it could establish a new way to abuse the "state secrets" doctrine, according to this article on Glenn Greenwald's new site.  

The NY Times and Jennifer Daskal comment.  

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Pirates on trialThe Guantánamo military commissions continue.

Ahmed Al-Darbi was charged with a peculiar offence - one also charged against Abd al-Rahim al-Nashiri, whose hearings resumed in February - and one of the strangest "war crimes" implausibly alleged to affect the US.  

The Saudi is charged with the 2002 Gulf of Aden bombing of a French-flagged Malaysian-chartered oil tanker that killed a Bulgarian crewman (see post of February 2013).

There wasn't a war at the time, and the defendant was actually in US custody.  

There's no connection to the US at all, and it doesn't seem likely that either France or Malaysia was at "war" with al Qaida in 2002.

Of course, Al-Darbi could have been lawfully prosecuted for piracy - by someone - in a civilian court, but the Pentagon needs his testimony to grass-up the heavily-tortured al-Nashiri in a military commission. 

In the end, Al-Darbi, like David Hicks and Omar Khadr before him, decided to plead guilty to imaginary law of war violations just to get out of Guantánamo - one day. The Miami Herald has more.  

The Obama administration may be planning to try more pirates at Guantánamo, where the government always wins.  

Al-Darbi's isn't the only new commission. There's also one planned against Abd al Hadi al Iraqi, and, distaining the recent decision of the DC Circuit confirming that conspiracy is not a war crime, the Pentagon has provocatively added that very non-crime to a list of fake war crimes being charged against the Iraqi held at Guantánamo, even as the government appeals its conspiracy loss - the Al Bahlul case - in the courts.  

Steve Vladeck at Just Security has more.  

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Prof Barron: blessing for drone assassinationsReaders of this column will recall that Jay Bybee, the head of DoJ's Office of Legal Counsel in the Bush administration, was duly awarded with a lifetime appointment to the 9^th Circuit Court of Appeals after giving his stamp of approval for the torture of "terrorists". 

Now another former OLC head, Harvard prof David Barron, will be parachuted onto the 1st Circuit, after providing the Obama administration with congenial OLC advice blessing extrajudicial assassinations. 

Barron's opinion comes in handy as Obama is reportedly planning the liquidation of yet another errant American.

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In a disappointing ruling, the Supreme Court has declined to hear an appeal against the shocking practice in Alabama of allowing a judge to impose a death sentence when the jury recommends life. 

But that's nothing.

In Oklahoma and Ohio, botched executions were not regarded as either cruel or unusual, in violation of the 8^th Amendment.

Louisiana's Republican governor thought the 26 minutes it took the Ohio man to die was acceptable and plans to use the same medical cocktail in his state. 

Missouri showed the greatest bloodlust by dragging away a capital punishment victim to his death while he was talking on the phone to his lawyer about his pending US Supreme Court petition for a stay.  

The Supremes rejected his request for a stay four minutes after his death.   

Those awaiting execution can at least be grateful that excessive heat on death row is now a violation of the 8^th Amendment

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Things didn't seem to go well for the government at oral argument in a case involving a prosecution for poisoning premised on the Chemical Weapons Treaty power.   

Bond v US is the case.

Interestingly, notable conservative lawyers including former Bush State Department legal adviser John Bellinger support the Obama administration position.  

Scotusblog has more on the case considering domestic jurisdiction conferred by foreign treaties, reminiscent of Australia's Franklin Dams case. 

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Rakoff: bankers unconvictedThe Manhattan federal judge and bête noire of Wall Street, Jed Rakoff, has criticised the Justice Department for failing to secure a single conviction of any of the bankers involved in the 2008 Global Financial Crisis, and noted that the five year statute of limitations was about to run.   

Judge Rakoff went on to write about it in the NY Review of Books.  

Of course, Mr Obama's DoJ has form for running out limitations, with its inaction on Bush Gang crimes - all statutes covering torture and war crimes have now run.

Except, of course, for those that resulted in death.