Death Penalty: Though a few states allow electrocution as a sort of fallback method, Nebraska was the only remaining state that provided it as the sole method. The past tense alludes not to the legislature being one vote away from outlawing it, but a recent state supreme court ruling holding it as unconstitutional. The court, with only the chief justice dissenting, held that recent evidence suggests too much risk to allow the practice. Its reasoning has clear relevance to the current issue of lethal injection protocols, now in front of the US Supreme Court. See also here.
Free Speech: Meanwhile, a California appeals court held that anonymous speech online is an important good, though the veil might be pierced if there is a clear case of libel per se (in effect, a really seriously sort of libel). Not the sort of "venting, much tongue-in-cheek, little pretense at sophistication or thoughtfulness, and an ample and obvious sense of irreverence" at issue here, or to target an alleged type of business tort. Thus, there was a sort of balancing test, but higher bar than what might bring many people to court.
The speech in question included references to "boobs," blow jobs, references to the people involved as cockroaches, and ridicule of the quality of the medical school that led one person targeted to use "Dr." IOW, what might be found on many message boards, including those that in various cases has serious discussions. I reference, for example, the comment threads to a typical Atrios post, which seems to have lower quality of discussion than some others. The Slate fray also has a lot of "harsh language and belligerent tone" few would deem "as anything more than an irrational, vituperative expression." Ditto, as cites on Glen Greenwald etc. suggest, many right wing blogs.
BUT ML still argues that said reasoning in effect immunizes executive officials that relied on them. Thus, the current Attorney General is right not to prosecute. [See the comment thread to the first link for multiple explanations on why this is absurd from people with more training than I.] To the degree the new torture czar (or covering torturers' butts czar) thinks waterboarding etc. is not or was not at the time criminal, sure. You can refute his reasoning, but it is consistent not to prosecute what you deem not a crime.
The only hypothetical exception to this would be in the almost unthinkable scenario in which the OLC lawyers and CIA operatives all knew that the advice was bogus and were simply conspiring to engage in conduct that they all believed to be unlawful.
-- Yes, Marty Lederman is talking about the Bush Administration here
ML, like the rest of his Balkinization buddies, things waterboarding and other interrogation tactics used by the Bush Administration is obviously torture, cruel treatment and/or illegal. They think the attempts to hide the opinions used by the administration from even Congress absurd. Opinions multiple posts deemed patently false and at best misleading. ML's past work in the OLC gave special weight to his analysis in particular.
BUT ML still argues that said reasoning in effect immunizies executive officials that relied on them. Thus, the current Attorney General is right not to prosecute. [See the comment thread to the first link for multiple explainatons on why this is absurd from people with more training than I.] To the degree the new torture czar (or covering torturers' butts czar) thinks waterboarding etc. is not or was not at the time criminal, sure. You can refute his reasoning, but it is consistent not to prosecute what you deem not a crime.
But TC here is in part trying to avoid the question entirely. The obvious question to ask him (did a member of Congress do it?) is some extreme scenario where a past ruling held something truly absurd (i.e., apparently, not the legality of partial drowning) and ask if this meant the people that relied upon it had a complete get out of jail free card. Now, obviously, the waterboarding allowance memorandum is just such an absurdity. ML's post here, see Dilan's reply for perhaps the best reason why, for some reason implies otherwise.
This sort of thing underlines why impeachment and many other things are in effect "off the table" -- when even those who clearly should know about the lawless sham in place here says it is a "unthinkable scenario" that people they like when different people are in office are part of the sham, we are in trouble. There is enough wiggle room -- even something we might deem very wrong might not be so wrong that heavy-handed tactics need to be used (i.e., declaration of a seriously stupid and harmful law as unconstitutional) -- for the truly passionate tyrant to get away with it.
It is a lot harder to play fair, which is why the next Democratic President will truly rue the abuses of the current one that will bring forth a backlash, but c'est la vie in a nation of laws and justice. Still, ML comes off as biased (to the OLC) and naive here. Annoying really.