The Washington Post today reminds us of Patriot Act II, drafted by the Justice Department lawyers in February, 2003 and submitted secretly to members of Congress. When news of the draft leaked, the Justice Department claimed it was just something being debated, not something intended to be introduced.

Why it matters now: It undermines Bush and Gonzales' claims that Bush didn't need Congress' approval or an amendment of FISA to engage in his warrantless electronic surveillance program, instituted in 2001.

Some background: Patriot Act II was officially called the Domestic Security Surveillance Act of 2003. The Center for Public Integrity still has the complete bill on their website, (text here, pdf) along with the control sheet (pdf) from the Office of Legislative Affairs showing that it was directed to House Speaker Denny Hastert and Veep Dick Cheney.

Don't give up on the filibuster. Even if we lose, it sends a powerful message, not just about Alito but about what we'll do if future uber-conservatives are nominated. And it's still possible, though a long shot, the Dems could pull it off. Pressure from constituents is key.

Sen. Edward Kennedy held a blogger conference call today about Judge Sam Alito's nomination and the filibuster plans. I couldn't make it but McJoan and at Daily Kos and Jane at Firedoglake have reports. Georgia100 at Daily Kos has the fax numbers. From McJoan:

He is encouraging you to contact your Democratic Senators, regardless of what they might have said so far, but specifically mentioned Senators Pryor, Lincoln, Cantwell, Murray, Baucus, Harkin, Levin, Bayh, Lautenberg, Menendez, and Lieberman. In addition, he said to keep the pressure on Republican Senators Snowe, Collins, Chaffee, and Stevens.

Senator Kennedy talked in particular about one thing that I think is critical to keep in mind as we approach our Senators, and for them to keep in mind as they are considering this vote. We need to overcome the media noise machine by letting our Senators know that in voting their conscience, and making it clear that they are voting on principle, on conscience, they will overcome the media noise machine calling them obstructionists. We can help them realize this by letting them know that we've got their backs. That they are voting our conscience as well, and that we will not forget their courage.

by TChris

Noting that bloggers on the left have lately been more vigorous in their pleas to elected Democrats to protect our country from Republican assaults, the Washington Post reports a "rift" between "liberal activists" and Democrats who want to appeal to a centrist electorate. The Post quotes Gov. Kaine: "You can get a lot done if you're not bitterly partisan."

Oh really? On the federal level, where bitterly partisan Republicans control the House, the Senate, and the Presidency, what can Democrats accomplish by remaining sweet and nonpartisan?

Liberal bloggers are echoing a centrist view: we do not want our Supreme Court to undergo a dramatic change of direction. We want our Court to adhere to a traditional understanding of the Constitution, one that safeguards individual liberties while maintaining an appropriate balance of power among the branches of government. We expect Democrats in the Senate to share that same concern, and to exercise their power to protect the Court and the Constitution. Preserving Justice O'Connor's seat for a centrist jurist is the immediate duty of Senate Democrats.

Medical marijuana activist Steve Kubby, afflicted with a rare form of adrenal cancer, was deported from Canada Thursday to begin serving a four month sentence in the U.S., and it could be his death sentence. He was taken into custody when his plane landed in San Francisco. The jail is refusing to provide him with marinol, a lawful prescription drug that is a synthetic form of THC, the active ingredient in marijuana, that relieves the debilitating pain and other symptoms of his disease.

Steve Kubby, a cancer patient, began coming ill two hours after his 8:10 p.m. arrest following police refusal to provide Marinol, NORML spokesman D. Gieringer reported...."I'm really sick already," Kubby told Gieringer by telephone said from jail. "I'm gonna start puking my brains out."

"He says his guards laughed at him when he requested Marinol. Kubby says he hasn't had marijuana for half a day and has begun to experience all of the symptoms of his life-threatening disease -- nausea, headaches, swollen kidneys. He has chills and has not been able to get a blanket from the guards," Gieringer stated.

A little background from yesterday's news. Kubby had a prescription in Canada that allowed him to smoke up to one ounce of marijuana a day. The only charge against him right now--and the one he was arrested on--is a probation violation for which he would serve 120 days.

A new Washington Post-ABC News poll finds Americans want Bush to disclose his contacts with Jack Abramoff:

A strong bipartisan majority of the public believes that President Bush should disclose contacts between disgraced lobbyist Jack Abramoff and White House staff members despite administration assertions that media requests for details about those contacts amount to a "fishing expedition," according to a new Washington Post-ABC News poll.

The survey found that three in four -- 76 percent -- of Americans said Bush should release lists of all meetings between aides and Abramoff; 18 percent disagreed. Two in three Republicans joined with eight in 10 Democrats and political independents in favoring disclosure, according to the poll.

Bush fares almost as badly on the questions about his Administration's ethics:

California Governor Arnold Schwarzenegger has rejected the last four clemency bids that came before him, that of Crips co-founder Stanley Tookie Williams, the 76 year old Clarence Ray Allen, Donald Beardslee and Kevin Cooper. Now he has another decision to make. But, in this case, that of Michael Morales, both Kenn Starr and the sentencing judge are petitioning for clemency.

The Judge says he's concerned that the jailhouse snitch who testified against Morales lied. Apparently, the snitch said his coversation with Morales took place in Spanish, but now it's been discovered that Morales speaks only English.

Kenn Starr helped prepare the clemency petition.

Their petition describes Morales as "a deeply repentant sorrowful Christian who has accepted full responsibility for a terrible crime that will haunt him forever."

"Unlike some who express no remorse for their offenses against humanity, Michael has not fled from his responsibility for the deed committed so many years ago in his reckless and drug-saturated youth," the petition says.

NCADP's action alert for Mr. Morales is here.

Here's the story so far. Arianna takes a few swipes at Tim Russert. NBC attacks Arianna, but instead of going after her on the facts, dregs up a 12 year old false claim by GOP'er Ed Rollins in his memoir, "Bare Knuckles and Back Rooms" that she hired a private investigator to dig up dirt on Russert's wife, Vanity Fair author Maureen Orth.

Richard Bradley, an editor of George Magazine in 1996, writes today about an article in the November, 1996 issue of the magazine written by John B. Roberts II, a former Reagan speech-writing assistant who did research for Rollins' book, in which Roberts said Rollins falsified information in his memoir.

Sen. Harry Reid, Hillary Clinton, Diane Feinstein, Barbara Boxer, Dick Durbin, Russ Feingold, Debbie Stabenow, Ted Kennedy all have come out in support of John Kerry's filibuster plan.

E-mail them your appreciation. And keep working on those who resist. Sen. Feinstein said last week she'd oppose a filibuster and yet changed her mind. Others can as well.

Those Democrats opposing the filibuster, like Sen. Barbara Mikulski of Maryland, use reasoning like this:

Democratic officials said Mikulski had said during this week's closed-door caucus that the 2006 and 2008 elections were more important than a symbolic last stand that would fail to prevent Alito's confirmation.

Let your Senators know that if they support the filibuster, you will work even harder for a Democratic majority in 2006. Show Mikulski she's wrong.

The Justice Department today issued this long press release in an attempt to debunk what it calls "myths" about Bush's warrantless NSA surveillance program.

Shorter version: We're at war and the President is King. The legal arguments are still based on the questionable assumption that the President's Article II constitutional power and the Iraq war authorization gave Bush the power to engage in the program.

FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute.

The NSA activities come from the very center of the Commander-in-Chief power, and it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President's well-recognized, inherent constitutional authority. FISA can and should be read to avoid this.

DOJ also argues that the 72 hour emergency window isn't enough time for it to prepare a FISA application, but does not address why it didn't ask Congress to amend the law to give them more time.

by TChris

Technically speaking, Tim Russert continues to mislead the public by claiming that the Abramoff scandal is bipartisan. Now, technically speaking, Katie Couric and Matt Lauer are pedaling peddling the same false story. (Arianna has more on Russert.)

by TChris

Lawyers rarely ask a federal judge to recuse himself or herself on the ground that the judge appears to be prejudiced. The judge will almost always say no, and the lawyer worries for the rest of the case (or career) that the judge's offense at being accused of prejudice against the client will result in even more prejudice against the lawyer. That is often not a risk worth taking.

Federal prosecutors took that risk when they sought the recusal of Judge Shira Scheindlin, who has presided in the perjury case against Osama Awadallah. The Second Circuit yesterday rejected their claim that Judge Scheindlin's remarks demonstrated an appearance of partiality in favor of Awadallah.

During oral arguments in December, prosecutors cited a 2004 article written by Scheindlin for a legal publication in which she said it was the duty of judges to protect individual rights in the wake of the Sept. 11, 2001, attacks. They argued such public statements and pretrial rulings in Awadallah's favor had created an appearance of injustice in the case.

by TChris

Writing in Christianity Today, Prof. David Gushee explains why torture is always wrong. He calls on his fellow Christians to stand up to the Bush administration on one of the profound moral issues of our time.

It is past time for evangelical Christians to remind our government and our society of perennial moral values, which also happen to be international and domestic laws. As Christians, we care about moral values, and we vote on the basis of such values. We care deeply about human-rights violations around the world. Now it is time to raise our voice and say an unequivocal no to torture, a practice that has no place in our society and violates our most cherished moral convictions.