One would hope that FBI agents are familiar with guidelines for conducting surveillance and opening files on people without evidence they have committed a crime. Apparently, that's in doubt. The Inspector General is investigating whether hundreds of FBI agents cheated on a test about the guidelines.

FBI Director Robert Mueller told Congress on Wednesday that he does not know how many of his agents cheated on an important exam on the bureau's policies, an embarrassing revelation that raises questions about whether the FBI knows its own rules for conducting surveillance on Americans.

Even Mueller got tripped up on the rules today. [More...]

The House of Representatives has passed S. 1789, the Fair Sentencing Act of 2010. It reduces the disparity between crack and powder cocaine penalties from 100:1 to 18:1. It also eliminates the 5 year mandatory minimum sentence for simple possession of crack cocaine and provides for higher sentencing guidelines for all drugs in some cases.

The bill, a compromise between Sen. Richard Durbin and Jeff Sessions, has already passed the Senate. It will now go to President Barack Obama for his signature. Here's a copy, as introduced in March, 2010.

What about retroactivity? The bill does not provide retroactive relief for those already serving long crack sentences. But I'm not seeing anything in the text prohibiting it, it seems to be silent on the issue. Does the silence mean the Sentencing Commission can decide to apply it to those already in prison? And would it?

The House Floor website says: [More...]

At page 27 of the decision (PDF), Judge Bolton makes a grievous error that needs to be appealed. It leaves a huge loophole for mischief:

Section 5 of S.B. 1070 also creates A.R.S. § 13-2929, which makes it illegal for a person who is in violation of a criminal offense to: (1) transport or move or attempt to transport or move an alien in Arizona in furtherance of the alien’s unlawful presence in the United States; (2) conceal, harbor, or shield or attempt to conceal, harbor, or shield an alien from detection in Arizona; and (3) encourage or induce an alien to come to or live in Arizona. A.R.S. § 13-2929(A)(1)-(3). In order to violate A.R.S. § 13-2929(A), a person must also know or recklessly disregard the fact that the alien is unlawfully present in the United States.Id. The United States asserts that this provision is preempted as an impermissible regulation of immigration and that the provision violates the dormant Commerce Clause. (Pl.’s Mot. at 44- 46.)18

[MORE . . ]

From the decision (PDF):

Finding a state law related to alien registration to be preempted, the Supreme Court in Hines observed that Congress “manifested a purpose to [regulate immigration] in such a way as to protect the personal liberties of law-abiding aliens through one uniform national . . . system[] and to leave them free from the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74. [. . .T]he United States has demonstrated that it is likely to succeed on its claim that the mandatory immigration verification upon arrest requirement contained in Section 2(B) of S.B. 1070 is preempted by federal law. This requirement, as stated above, is likely to burden legally-present aliens, in contravention of the Supreme Court’s directive in Hines that aliens not be subject to “the possibility of inquisitorial practices and police surveillance.” 312 U.S. at 74.

[More . . .]

While their names won't be released until after a verdict, the media is turning its attention to the jurors about to decide the case of former Illinois Gov. Rod Blagojevich and his brother Robert.

There are six men, six women. They include:

....a legal assistant, a public school math teacher, an avid marathon runner, two college students, a retired letter carrier and a man who was born in a California detention camp for Japanese-Americans during World War II.

17 jurors heard the case, but 5 will become alternates. The 12 with the lowest juror numbers will be the deciding jurors. More description below: [More...]

Team Blago today filed another motion for a mistrial (there have been several throughout the trial, all denied.) This one (available on PACER) is based on the limits placed on Sam Adam Jr.'s closing arguments:

Determinations of credibility and findings of fact are the province of the jury. Throughout the closing argument of Attorney Sam Adam, Jr., the government objected approximately three dozen times, with improper objections.

The court, in an apparent endorsement of the government in front of the jury, erroneously ruled on the government‟s improper objections, making findings of credibility and fact. This violated Rod Blagojevich rights to due process, a fair trial, effective assistance of counsel and the right to present a defense case, in contravention of the United States Constitution, Amendments 5 and 6.

[More...]

CNN:

A federal judge has granted an injunction blocking enforcement of parts of a controversial immigration law in Arizona that is scheduled to go into effect Thursday.

NYTimes:

The parts of the law that the judge blocked included the sections that called for officers to check a person’s immigration status while enforcing other laws and that required immigrants to carry their papers at all times. Judge Bolton put those sections on hold until the issues are resolved by the courts.

When I get the decision (PDF (site is swamped), I'll write a separate analysis. As regular readers know, I thought the preemption argument was a slam dunk. I wonder if the judge agreed.

A decision is expected to be handed down today at 3 EST in the AZ SB 1070 case. I'll write it up when it comes down.

This is an Open Thread.

Matt Yglesias:

[. . .] I wonder if Republican politicians are benefitting from a psychological anchor phenomenon around the fact that the media has adopted the conceit that there’s something called the “tea party movement” that’s distinct from the conservative base of the Republican Party. Voters seem to see themselves as about equidistant between Democrats and Tea Parties, which means they’re closer to Republicans than to Democrats. But it’s hard for me to think of important policy disputes between, say, John Boehner & Paul Ryan and tea party leaders.

Someone told me at Netroots Nation that in her opinion the group she works for had made a mistake in not diverting some funding away from HCAN and toward single-payer groups precisely in order to create this sort of anchor.

(Emphasis supplied.) That's sort of been my argument since 2007. I hoped that the Progressive Blogosphere could have been that Left Flank anchor, pulling the debate to the progressive side. Unfortunately, much of the progressive blogosphere decided that it was more important to denounce an independent Left Flank (Firebaggers anyone?) and to cheerlead the Democratic Party. This was a big mistake. Long story short, Yglesias' post is quite compelling.

The House of Representatives today passed the Crime Commission bill, now known as H.R. 5143, the National Criminal Justice Commission Act of 2010 (originally the idea of Sen. Jim Webb.) Despite the praise by progressive groups for the creation of a bi-partisan committee to spend 18 months studying what's wrong with our criminal justice system, I remain unimpressed.

We don't need an 18 month moratorium on the passage of much needed crime bills that have been languishing for months and years, like bills to equalize the penalties for crack and powder cocaine (unlikely to happen at all now that the House is set to vote to make them 18:1 instead of 100:1 with the reduction being prospective only, doing nothing for the thousands already sentenced), bills to reduce or eliminate mandatory minimum sentences, or increase federal good time. Or even a bill to reduce the draconian child p*rn guidelines. It will be just more "hurry up and wait."[More...]

The ACLU reports that the city council in Fremont, NE has suspended the enactment of its anti-immmigrant resolution that would requires prospective renters to provide the Fremont Police Department with information about their citizenship or immigration status prior to renting any home.

The ACLU filed suit (documents here.) The law passed on June 21 and was scheduled to go into effect on July 29. It's a law that, like SB 1070 in Arizona, invites discrimination against those "who look or seem foreign." [More...]

Bump and Update: Closing arguments are over. The jury will be instructed and begin deliberating tomorrow. After court was over, Patti Blagojevich burst into tears and Rod told reporters as he was leaving, ""I hope you have a prayer left for us."

Another line from Sam Adam, Jr. in closing: "“As much as I like him, and as much as he’s loved around the world, this is a man who considered appointing Oprah Winfrey (to the U.S. Senate),” Adam said. “No one’s going to say he’s the sharpest knife in the drawer, but he’s not corrupt.” [More...]

At least according to Ian Welsh, who recently attended this year's version of Netroots Nation:

To put it crudely and unfairly to both sides, it’s the sell-outs without principles against the purists without realism. And many of them do put it that way. The netroots are split, in a very real way. [. . .] It’s not all-out war, not even close, but there is a disdain, bitterness and contempt between the two sides which is very real, and very dangerous.

That would have been fun to watch, but it sounds too simplistic to me. I'm certainly disappointed with both Democrats and the progressive blogosphere, but I do not think anyone is a sellout without principles or a purist without realism. But I place the disappointment on my own shoulders. My expectations were not realistic, indeed they probably were delusional. More . . .

Markos bizarrely calls this post, which disparages progressive pressure on Democrats, "compelling." Coming from Markos, it really makes no sense, given his constant (and mostly correct) haranguing of Democratic pols for the last 7 years. More importantly, the post is not only not compelling, it makes no sense. I wrote about it yesterday:

[Arch social conservative Richard] Viguerie and people like him were in fact shunted aside [when Reagan chose Sandra Day O'Connor for the Supreme Court] because Reagan wanted to nominate the first woman to the Supreme Court. [. . . Steve Benen] says the moral of the story is "that perceptions can change over time." That is silly. Some folks seem incapable of getting out of focusing on the pol, not the issue. Vigeurie was commenting on one event - the nomination of O'Connor. I am sure if he wanted to, Benen could find many instances of Viguerie praising Reagan at the same time (tax cuts anyone?). It is not all of one thing or another. Here's the real moral of the story in my opinion - who did Reagan nominate for the Supreme Court after O'Connor? Antonin Scalia. For those who decry pressure on their hero pols, the lessons of Richard Viguerie's complaints about Reagan's nomination of Sandra Day O'Connor are that they worked. Viguerie got what he wanted the next time.

Richard Viguerie understood what too many do not want to these days - pols are pols and do what they do. Your loyalty should lie with the issues you care about, not the pols.

((My emphasis.) What's really weird about Markos' shout out for that post is he's busy gearing up pressure on Obama to nominate Elizabeth Warren to the new consumer finance agency. If he really thought it was compelling, he'd stop that immediately.

Speaking for me only

Warren Steed Jeffs, the leader of a Utah polygamy sect convicted of two counts of accomplice rape, will get a new trial. The reason: errors in jury instructions.

The opinion is here. Jeffs was convicted for his role in the compelled marriage of fourteen-year-old Elissa Wall to her nineteen-year-old first cousin, Allen Steed, and the resulting sexual intercourse between them. [More..]