In January, criminal defense lawyer Terry Kindlon of Albany, NY filed the first motion to dismiss criminal charges in a terrorism case based on Bush's warrantless electronic surveillance program. His motion alleged:

"The government engaged in illegal electronic surveillance of thousands of U.S. persons, including Yassin Aref, then instigated a sting operation to attempt to entrap Mr. Aref into supporting a nonexistent terrorist plot, then dared to claim that the illegal NSA operation was justified because it was the only way to catch Mr. Aref," Kindlon's motion said.

On March 11, the Judge issued a one page order denying Terry's motion but refused to share his reasons -- he designated his order "classified."

Terry has now sought the intervention of the Second Circuit Court of Appeals in a mandamus action, seeking an order compelling the Government to disclose whether his clients were the subjects of NSA surveillance. It is the first case about the NSA surveillance to reach a federal appeals court.

Bump and Update: Here is the Complaint (pdf) in the Oregon NSA surveillance lawsuit. Here is the Motion to Submit Material Under Seal (pdf). [Note: a gracious TL reader has blacked out the e-mail addresses of lawyers]

**********
A "mystery document" has surfaced in an Oregon lawsuit over Bush's warrantless NSA electronic surveillance program. It is so hot to handle that the Judge wouldn't let it remain at the U.S. courthouse or in the custody of the FBI, a defendant in the case. The case involves:

The lawsuit alleges that the National Security Agency illegally wiretapped electronic communications between a local chapter of the Al-Haramain Islamic Foundation and Wendell Belew and Asim Ghafoor, both attorneys in Washington, D.C.

It contends the NSA did not follow procedures required by the Foreign Intelligence Surveillance Act, or FISA, and failed to obtain a court order authorizing electronic surveillance of the charity and its attorneys. Lawyers for the plaintiffs have said they can't spell out the facts that support their suit because those details are classified.

The Department of Justice today sent its responses to questions about Bush's warrantless electronic surveillance program to members of Congress. The ACLU, in press release (no link yet, received by email) responds:

The Department of Justice continues to refuse to give honest answers to basic questions, such as how many Americans have had their phone calls and e-mails listened to or read by the NSA without a warrant. Congress and the American people are entitled to the truth. Knowing how many innocent Americans have had their privacy invaded by this lawless program is not an 'operational' secret--it's the very question a less partisan and more independent Congress asked and got answered in the 1970s. That's when Congress passed the Foreign Intelligence Surveillance Act to try to prevent warrantless spying on Americans from happening again.

"The administration continues to try to get away with stonewalling Congress and the American people. Congress should not reward presidential obstruction with legislation to whitewash this violation of the Fourth Amendment and federal law. The current era of 'trust us, we're the government' must end now. Congress is obligated to investigate this illegal program further and cannot allow the Justice Department and White House to continue to suppress the facts. The law has been broken, and the people have a right to know how that happened."

More over at Raw Story including this answer, which confirms that doctors and lawyers are at risk of having their conversations wiretapped.

Update: Ben Domenech issues a real apology. It seems sincere and complete. Good for him.

*******
The liberal blogosphere went into full attack mode this week when the Washington Post hired conservative, partisan blogger Ben Domenech to write a blog for its online website. Bloggers uncovered numerous instances in which the 24 year old Domenech appears to have plagiarized material when writing for his college paper and in one instance, NRO, the blog of the National Review.

Domenech has now resigned. WaPo editor Jim Brady writes:

An investigation into these allegations was ongoing, and in the interim, Domenech has resigned, effective immediately.

When we hired Domenech, we were not aware of any allegations that he had plagiarized any of his past writings. In any cases where allegations such as these are made, we will continue to investigate those charges thoroughly in order to maintain our journalistic integrity.

Drug War Chronicles reports that despite the Supreme Court's decision in U.S. v. Booker which made the federal sentencing guidelines advisory rather than mandatory, drug sentences are getting longer.

In a report on post-Booker sentences issued last week, the US Sentencing Commission found that most judges in most cases continued to sentence in accord with the now "advisory" guidelines. According to the report, about 67,000 people were sentenced in the federal courts in the past year, and their average sentence of 58 months was actually higher than the 57-month average of the previous year. Sentences below the guidelines have increased, but only minimally, from a little over 9% to just over 15%.

Both Law Prof Doug Berman of Sentencing Law and Policy and I are quoted in the article.

There was a lot of secrecy surrounding the trial of Zacarias Moussaoui today, but from this Washington Post news account, here's what happened: The prosecution rested, after which the defense made a motion for judgment of acquittal in a sealed hearing, and the trial resumed in open court with the defense calling its first witness. Shorter version: The defense lost it's motion for judgment of acquittal.

I can't find any record of a ruling on this defense motion which was filed Tuesday. I discuss it at length here. Apparently, the Judge has decided to let the Government switch horses in midstream. The defense had claimed the Judge's order reconsidering the admission of the aviation testimony and witnesses has allowed the Government to expand its theory for the death penalty from one that alleges Moussaoui's lies directly resulted in at least one death on 9/11 to one that claims his failure to tell the truth on 9/11 caused a death. As the defense pointed out:

Maher Arar, the Canadian who was kidnapped by U.S. authorities at JFK and flown to Rome, Italy and then Syria and Jordan via extraordinary rendition where he alleges he was tortured during his nine months of captivity, testified today at a hearing of the European Parliament, held by the Temporary Committee on the alleged use of European countries by the CIA for the transport and illegal detention of prisoners.

Mr. Arar told the EU committee that FBI agents took his passport, put him in chains on both his wrists and ankles and asked him to voluntarily to go to Syria. He refused. After several days of interrogation in New York, he said he was driven to New Jersey and put on a private jet that stopped over in Rome before landing in Amman. "I overheard them saying they belonged to a special removal unit," he said.

Mr. Arar said he could see on the airport's in-flight screen showing the trajectory of the flight that it landed in Rome. He said he overheard officials discussing the plane's next stop in Athens. He said the plane refuelled in Rome and tall person in a civilian suit guarded it on the tarmac. Once in Syria, Mr. Arar said, he was detained in a small cell with no light and was beaten and tortured. He said he also heard other people being tortured.

A U.S. court dismissed his civil lawsuit last month, but Arar says he will appeal and not be silenced. A summary of his testimony appears on the E.U.'s website here.

The jury in the corruption trial of Former Illinois Governor George Ryan, who commuted the death sentences of all of the state's death row inmates because so many had been wrongfully convicted, sent a note to the Judge today saying they were having difficulty reaching a verdict. The judge didn't give them a dynamite instruction, but instead told them to "treat each other with dignity and respect." She also warned them not to deliberate in smaller groups.

The Judge said the jurors are having personal problems. If you haven't been following the case,

The charges allege that as secretary of state and later as governor from 1999 to Ryan steered big-money state leases and contracts to Warner and other insiders and was rewarded with free vacations and gifts. Ryan and Warner maintain they did nothing illegal.

Have you been to your local jail lately? That's where I'm headed, so if you've got stuff to talk about, here's some space. I'll be back late this afternoon.

• Crooks and Liars has the video of Russ Feingold on the Daily Show.

• Jane at Firedoglake has the latest unhinging of Joe Lieberman

• Avedon Carol at Sideshow has her usual great roundup

• Sentencing Law and Policy reports on a new paper with a reasoned approach to dealing with sex offenders -- one that "draw[s] upon lessons learned from the past and New York's experience with legislation that was driven by fear and political rhetoric -- the Rockefeller drug laws."

What a ridiculous waste of law enforcement resources.

Texas has begun sending undercover agents into bars to arrest drinkers for being drunk, a spokeswoman for the Texas Alcoholic Beverage Commission said Wednesday.

The first sting operation was conducted recently in a Dallas suburb where agents infiltrated 36 bars and arrested 30 people for public intoxication, said the commission's Carolyn Beck. The goal, she said, was to detain drunks before they leave a bar and go do something dangerous like drive a car.

[hat tip to Mish.]

Update: Punchy in the comments notes: "They were also going into hotel bars--a place were people had absolutely no intention of driving, and busting them. Claimed they may drink too much and jump off the balcony."

We've written several times about the danger of the Carl Levin - Lindsay Graham Amendment to John McCain's anti-torture Amendment and how it would strip Guantanamo detainees of their right to bring habeas actions challenging the conditions of their confinement, including claims of torture and inhumane treatment in federal courts. (More here. Also see these Boston Globe , New Jersey Herald and San Francisco Chronicle editorials.)

Sure thing, Bush Administration prosecutors Wednesday argued to dismiss more than 200 of the lawsuits saying the Detainee Treatment Act of 2005 retroactively stripped the court of jurisdiction.

Very few law enforcment practices are more inisidious than the perp walk. The National Law Journal has an article (free link here) on how to avoid them in white collar crime cases. It begins by telling us who was responsible for creating them: Rudy Giuliani.

Rudolph Giuliani is given credit for "patent[ing] the perp walk" for white-collar defendants during his tenure as U.S. Attorney for the Southern District of New York. ...When the time came to arrest three prominent Wall Street traders and bankers that his office accused of insider trading, Giuliani directed that the defendants be arrested at their offices, handcuffed and escorted from the building to a mob of press that had been previously alerted. Charges against one of the defendants were dismissed, although damage to his reputation based on the perp walk and media frenzy was irreparable.