Former Oakland Transit Officer Johannes Mehserle was charged with the murder of Oscar Grant yesterday. (Background here.)

If you missed the video of the killing, you can watch it here:

A news version is here. More at Alternet and here's an Action Alert at the Nation.

Law Prof Glenn Reynolds, aka Instapundit, has an excellent op-ed today in the New York Post criticizing the Supreme Court's decision yesterday in Herring (background here), restricting the exclusionary rule.

How many times have we all heard "ignorance of the law is not a defense?" With this opinion, the Supreme Court is saying this rule applies only to citizens, not to police.

You can see their reasoning. Herring's a bad guy. Why punish the police by letting a guilty man go free when they just made a simple mistake?

Except that the rest of us enjoy no such immunity.
....Likewise, police are given a pass, under the doctrine of "good faith immunity," from having to understand the intricacies of suspects' constitutional rights: A right must be clearly established before an officer is liable for violating it, apparently on the theory that constitutional law is just too confusing for police.

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Morning.

This is an Open Thread.

Eric Lichtblau reports that a FISA court has ruled the Protect America Act, passed by the Congress after the Bush violations of FISA became public, constitutional:

A federal intelligence court, in a rare public opinion, is expected to issue a major ruling validating the power of the president and Congress to wiretap international phone calls and intercept e-mail messages without a court order, even when Americans’ private communications may be involved.

. . . The appeals court is expected to uphold a secret ruling issued last year by the intelligence court that it oversees, known as the Foreign Intelligence Surveillance, or FISA, court. In that initial opinion, the secret court found that Congress had acted within its authority in August of 2007 when it passed a hotly debated law known as the Protect America Act, which gave the executive branch broad power to eavesdrop on international communications, according to someone familiar with the ruling.

Lichtblau's article is not good in my view in that he sees the opinion as passing on the Bush Administration's previous activities. But his own reporting states:

A NYTimes editorial says:

From the WaPo:

A federal judge ordered the release today of a detainee at the U.S. military prison at Guantanamo Bay, Cuba, ruling that the government's evidence was too weak to justify the man's continued confinement.

It is the second time U.S. District Judge Richard J. Leon has ordered the release of a detainee after hearing the government's evidence. In today's ruling, Leon said the Justice Department failed to prove that Mohammed El Gharani, 21, was an enemy combatant because it relied almost exclusively on statements made by two other detainees whose credibility has been called into question by government personnel.

Via Yglesias and one of his commenters:

BARNICLE: [S]omeone ought to tell Governor Palin that there’s a distinction between blogging and what she refers to as journalism. Blogging . . . I would say 95%; maybe 99% of blogging is basically therapy for the blogger.

True enough. At least it is not this:

Andrew Sullivan is keeping mum about his meeting with the president-elect but he couldn't resist a little swipe at Paul Krugman.

Obama's post-partisanism, Sullivan writes is a "challenge...as real for a Krugman as for a Kristol." Please.

Bill Kristol is a shallow, error-prone propagandist behind just about everything awful in our politics, from the Iraq invasion to Sarah Palin. Krugman, conversely, is a Nobel Prize winning economist who has been pretty prescient on everything from the real estate crash to the comeback of Keynesian economics. [More...]

The Newsweek article I have been focusing on this week also makes some assertions regarding the import of last year's Boumediene Gitmo habeas decision. Newsweek asserts that:

The Supreme Court ruled last June, in a case involving some Gitmo prisoners, that U.S. courts should review the cases of detainees who deny being enemy combatants.Does that mean summoning military commanders away from the battlefield to testify? In a case in 1950, Justice Robert Jackson wrote that it would be "difficult to devise a more effective fettering" of a field commander than to allow the very enemy he is trying to defeat to cause him to be called home to defend his actions in court. Obama might do well to heed Justice Jackson's words as he referees the debates that pop up in his own administration.

Does Boumediene require that "enemy combatants" held overseas who deny their status be granted a habeas proceeding in the US? Not exactly. I'll explain on the flip.

In a 5-4 decision today, the Supreme Court further eroded our Fourth Amendment protections by holding that the exclusionary rule does not apply to searches that follow an unlawful arrest pursuant to a warrant that, although withdrawn, still appears to be active in police databases. On its surface the result seems reasonable -- the police do not deliberately violate rights when they make arrests in the good faith belief that their databases are accurate -- but in practice the decision will lead to pernicious results.

The problem that the decision addresses is not uncommon. Warrants are issued for all sorts of reasons (including missed court appearances and failures to pay fines) and are routinely withdrawn when the reason for their issuance is rectified (the defendant appears in court or pays the fine). But since databases are not centralized, a police database of outstanding warrants is frequently populated with warrants that are no longer active. Individuals are routinely arrested in the belief that a warrant is outstanding, only to be released when the court verifies that the warrant has been withdrawn.

The Supreme Court's decision gives the police little incentive to keep their databases up to date and thus encourages wrongful arrests. [more ...]

The enterprise known as Newsweek magazine dedicated its cover story this week to apologizing and advocating for torture. I have covered this issue here, here and here. The Newsweek article, authored by Stuart Taylor, Jr and Evan Thomas, states:

It is a liberal shibboleth that torture doesn't work—that suspects will say anything, including lies, to stop the pain. But the reality is perhaps less clear.

Yet Newsweek reporting, by EVAN THOMAS no less, came to a different conclusion in 2006:

Does torture really work? Most intelligence experts say no.

More . . .

For the first time, a Bush Administration official has admitted a Guantanamo detainee was tortured.

The top Bush administration official in charge of deciding whether to bring Guantanamo Bay detainees to trial has concluded that the U.S. military tortured a Saudi national who allegedly planned to participate in the Sept. 11, 2001, attacks, interrogating him with techniques that included sustained isolation, sleep deprivation, nudity and prolonged exposure to cold, leaving him in a "life-threatening condition."

"We tortured [Mohammed al-]Qahtani," said Susan J. Crawford, in her first interview since being named convening authority of military commissions by Defense Secretary Robert M. Gates in February 2007. "His treatment met the legal definition of torture. And that's why I did not refer the case" for prosecution.

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