Bump and Update: The Senate Judiciary Committee will begin debating the Senate version of H.R. 4437 on Monday. It has already passed the House.

Update: From Common Dreams:

Apparently drowned out by the shrill charges and counter-charges in the immigration debate is a simple truth articulated by George Hunsinger, McCord professor of theology at Princeton Theological Seminary and coordinator of Church Folks for a Better America. He told us,

"No human being -- whether citizen or non-citizen -- should be placed outside the protections of the law. No one who performs needed work should be denied fair wages and decent conditions. A society that exploits immigrants for their labor while declaring them illegal is caught in a tangle of contradictions."

Update: (3/25) Barbara Boxer slams the bill:

"It's anti-faith based,'' Boxer said. "It's inhumane. Sensenbrenner is inhumane.''

More details on the bill are available from the ACLU here and here. As for what's wrong with employment verification programs, the ACLU explains here.

If you haven't yet voted in the Koufax Liberal Blogging awards, please do. Voting ends Sunday. (Remember, you can only vote once in each category.)

TalkLeft has won the Best Single Issue Blog category the past three years, but this year we have the most competititon ever. Most of our supporters vote by e-mail, rather than leaving their vote in the comments here, but you can do either.

You can e-mail your vote directly to Wampum by clicking here and hitting your send button. (If that doesn't work, try this and put "koufax" in the subject line and "Talkleft for best single issue blog" in the body.)

by TChris

Death penalty opponents have no reason to be heartened by the Supreme Court's announcement that it will rehear argument in Kansas v. Marsh so that Justice Alito can break a tie vote. The issue in Marsh is the facial validity of a statute that requires a jury to vote for death when the aggravating and mitigating factors are equally balanced.

by TChris

As this analysis suggests, the Bush administration's Justice Department may regret seeking the death of Zacarias Moussaoui. Aided by the misconduct of government lawyers, Moussaoui's defenders have skillfully turned government agents into defense witnesses, focusing attention on the government's belief before 9/11 that Moussaoui had no information of value. Putting aside a legal hurdle that the government may be unable to clear (whether Moussaoui can be executed because he failed to provide self-incriminating information to government agents), the government's own witnesses have made a convincing case that federal agencies would probably not have acted upon any truthful information that Moussaoui provided.

Next week, the defense will present additional evidence that Moussaoui functioned on the fringe of al Qaeda and had no specific knowledge of the 9/11 conspiracy. If the defense rested after presenting that evidence, the case might not make it to the jury. As TalkLeft discussed here, the government's theory of prosecution is shaky, and Judge Brinkema might not be satisfied that a rational jury could find it sufficient to support a verdict of death.

Update: Saturday, tens of thousands marched in L.A. Firedoglake has more on the protests.

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10,000 in Phoenix along with thousands in Los Angeles and Atlanta rallied today against Congress' proposed anti-immigrant bills:

Congress is considering bills that would make it a felony to be illegally in the United States, impose new penalties on employers who hire illegal immigrants and erect fences along one-third of the U.S.-Mexican border. The proposals have angered many Hispanics. In Phoenix, police said 10,000 demonstrators marched to the office of Republican Sen. Jon Kyl, co-sponsor of a bill that would give illegal immigrants up to five years to leave the country. The turnout clogged a major thoroughfare.

"They're here for the American Dream," said Malissa Greer, 29, who joined a crowd estimated by police to be at least 10,000 strong. "God created all of us. He's not a God of the United States, he's a God of the world."

It appears Carla Martin has advised the court she will invoke her 5th Amendment privilege against self-incrimination if compelled to take the stand Monday at a hearing scheduled by the Judge at which she was to explain her actions. The Judge has quashed the subpoena and canceled Monday's hearing.

Her attorney, Roscoe C. Howard Jr., has said Martin is assembling a defense but is not yet ready to explain her actions publicly.

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Original Post 3/24

A new article in the ABA Journal E-Report examines Carla Martin's actions in violating the sequestration order in the Zacarias Moussaoui trial. Several lawyers (including me) weigh in, as does the esteemed George Washington law professor Stephen Saltzburg.

The Judge has directed Martin to be in Court Monday for a hearing on her actions. It's not known if she will testify or invoke her 5th Amendment privilege against self-incrimination.

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]

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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.

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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: