- “Cato Batted .500 at the Supreme Court, Still Besting the Government” [Ilya Shapiro] “Obama Has Lost In The Supreme Court More Than Any Modern President” [same, The Federalist]
- Scalia’s absence left a void this year, but (Friedrichs aside) not mostly on case outcomes [Shapiro, Forbes] Scalia’s legacy on criminal defense [Kevin Ring, Cato Daily Podcast]
- “Supreme Court Session Promised Much, Delivered Little To Business” [Daniel Fisher]
- Relevant to Sotomayor and Kagan dissents in the exclusionary rule case, Utah v. Strieff: outstanding warrants are neither infrequent not randomly distributed [Alex Tabarrok, Orin Kerr, Tim Lynch/Cato, Scott Greenfield]
- Can Congress pass a statute whose effect is to dictate a result in one pending case? Should it matter whether the plaintiffs are sympathetic terror victims? [Michael Greve, Jonathan Adler, Daniel Fisher first and second on Bank Markavi v. Peterson]
- Government contracting: high court corrects First Circuit’s implausibly pro-plaintiff reading of False Claims Act [Richard Samp, Washington Legal Foundation on Universal Health Services, Inc. v. United States ex rel. Escobar]
There has been speculation about whether the wife of the Orlando shooter, who according to reports may have accompanied him on visits to at least one gun store and known that he was meditating violence, might be charged with an offense. According to Jack Chin at PrawfsBlawg, the offense of misprision (as distinct from aiding/abetting) as currently defined requires that the subject have taken affirmative steps to conceal another’s crime, not just failed to speak up on knowing.
“The common thread among suspects in these mass shootings and terroristic incidents is not merely that they had mental health issues and an attraction to extremist political ideologies. In each case, the concerned people in those killers’ lives failed to speak up or their warnings were dismissed when they did.” And the structure of legal incentives created by wide-sweeping high-penalty discrimination and privacy laws (which cover categories like mental illness by way of the ADA) may not be entirely unrelated to that phenomenon. [Noah Rothman, Commentary] “No Psych Exam for Orlando Shooter Despite Odd Behavior, FBI Probes” [NBC News]
Following the most lethal terror attack on U.S. soil since 9/11, I will set law and policy aside for this post.
Omar Mateen of Fort Pierce, Fla., known to the FBI as an Islamic State sympathizer and twice the subject of previous investigations, entered Orlando gay nightclub Pulse around 2 a.m. Sunday morning heavily armed and killed 50 persons after taking hostages. Authorities called his attack “well organized and well prepared”; Mateen had firearms training and according to reports had been scoping out gay clubs in the area before the attack.
As in two earlier attacks on American soil — those against a cartoon exhibition in Garland, Texas, and in San Bernardino, California — Mateen used contemporaneous public media (in this case, a 911 call) to pledge his allegiance to the leadership of Islamic State. As Rukmini Callimachi notes in today’s New York Times, this follows a protocol announced by Islamic State for independent fighters acting in sympathy with IS. A few hours later an Islamic State news agency hailed Mateen as an IS fighter, effectively accepting his pledge of allegiance.
The group’s head has urged followers in the West to act without prompting or coordination, selecting targets and employing attack methods in line with instructions published by IS. For example, IS has recommended capturing hostages and holding them in a sealed off space, which makes it likely that a prolonged siege situation will develop for maximum media interest, and that the attacker will die in an eventual police operation, reducing the likelihood of intelligence debriefing following a capture. As at the Bataclan in Paris, the passage of a long period before police rescue arrives tends to augur poorly for victims’ chances of survival.
The instructions-for-lone-wolves model is intended precisely to obviate the need for IS to know of or direct its supporters’ actions in advance. “The fact that there is no link back to the core is *by design* and is intended to protect the organization in an age of surveillance,” writes Callimachi on Twitter.
If you weren’t thinking of Gay Pride Month in a major American tourism city as a likely target for murderous jihadist attack, you should be. As Karol Markowicz writes on Twitter, “Just like it wasn’t a random ‘bunch of folks in a deli in Paris’, let’s not pretend it was a random bunch of folks in a club in Orlando.” If you’re gay, Islamic State’s ideology wants to kill you, even more than it wants to kill unbelieving Westerners in general. For us in America after today, that’s no longer the stuff of distant headlines.
I take a dim view of the doings of the Riyadh regime, but it’s bonkers to let US-Saudi relations stand or fall on the skill of random trial lawyers. A bill under consideration in Congress would bring such a day closer by stripping sovereign immunity protection from foreign countries in suits alleging responsibility for terror attacks on U.S. soil. It is the executive branch exercising its foreign relations powers that should have the final word on such responsibility; the U.S. State Department opposes the legislation. [Tim Worstall, Forbes]
- Unbowed by terror: interview with heroic Danish editor Flemming Rose [Simon Cottee/The Atlantic]
- “If The Left Had Its Way On Citizens United, ‘Funny Or Die’ Would Not Be Allowed To Ridicule Trump” [Luke Wachob, Independent Journal]
- Justice Department considers push for law criminalizing support of domestic terror groups [Reuters] Per federally funded police-support center, possible indicators of “extremist and disaffected individuals” include display of “Don’t Tread on Me” flag [Jesse Walker, Reason]
- U.S. BigLaw firm Squire Patton Boggs represents Venezuela as it tries to shut down U.S.-published DolarToday for publishing data about inflation [Jim Wyss/Miami Herald, Cyrus Farivar/Ars Technica, earlier here, etc.]
- When scandal broke about IRS targeting of opposing groups, even President Obama talked about accountability. After press attention waned came refusal to press charges, whitewash, denial [Glenn Reynolds, USA Today]
- Bad, bad bar: behind recent rise in blasphemy prosecutions in Pakistan is a lawyers’ group [Reuters]
Read deep enough into this very long New York Times report, and you learn that Air France has been stymied from dismissing some employees it suspects of Islamic radicalization because “individuals were often able to successfully challenge such dismissals in French labor courts”:
Guillaume Pepy, the head of SNCF, the French national railway operator, recently conceded that the country’s anti-terrorist services had alerted the company — which employs 50,000 people — to as many as 10 employees in the last year whom they suspected of having ties to Islamist groups. But rather than fire the employees and risk a costly discrimination suit, Mr. Pepy told a French radio in January that it was SNCF’s policy to ensure that the individuals were not allowed to be train drivers or signal operators or to hold other positions that could pose a security threat.
Other tensions in religious accommodation law:
…At certain bus depots, [a labor union official] said, some male employees wouldn’t take the wheel of a vehicle that had been previously driven by a woman.
“Rather than report the behavior to the authority’s human resource managers, Mr. Salmon said that supervisors simply adjusted the drivers’ schedules and routes to avoid handoffs between women and men. In one case, Mr. Salmon said, a woman who lived within walking distance of her depot asked to be transferred to a job across town rather than stay and continue to endure the harassment….
It’s precisely the employees managers are afraid of who may fare best in winning accommodation:
Paradoxically, [the director of a research institute] said, it is often the employees most open to dialogue who are the first to be pressed to adapt their religious practices, while more troubling behavior is sometimes allowed to continue unchallenged for fear of escalating the problem.
“Radical people make some managers nervous, and so they leave them alone,” Mr. Honoré said.
“Can Apple be forced to hack its own iPhones? … This week, the FBI obtained a court order demanding Apple’s help breaking into the iPhone used by [San Bernardino terrorist] Syed Rizwan Farook.” My Cato colleague Julian Sanchez has an introduction to the case at the New York Post. More: Nicholas Weaver/LawFare, Brad Reed/BGR, Sanchez Cato podcast.
- To what extent should law schools pursue missions other than that of training lawyers to practice competently? [Ken at Popehat]
- Survivors of woman slain in terror attack seek $200 million from county of San Bernardino [Courthouse News] A pertinent 2001 Elizabeth Cabraser quote about terrorism and litigation: “If we sue each other, the terrorists win. We need to be united.”
- Self-driving car revolution is coming quickly, but there might still be time for feds to mess it up [Randal O’Toole]
- “NYT throws hissy-fit, sues over use of thumbnails in critical book” [Rebecca Tushnet via Mike Masnick, TechDirt]
- New laws from Brussels could endanger thousands of historic guns in British museums [Telegraph]
- Drawing on the organization’s entire moral authority, i.e. none at all, United Nations panel calls for U.S. to pay slavery reparations [Independent, Vice]
- Aviary Attorney: “The hottest bird lawyering game to come out of 1840s France!” [Steampowered via Lowering the Bar]