Experts say Bush's warrantless electronic surveillance could jeopardize current terror cases if the evidence against them is derived from illegal interceptions.

How would a defendant know? How about a request under 18 USC Sec. 3504?

(a) In any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, or other authority of the United States—

(1) upon a claim by a party aggrieved that evidence is inadmissible because it is the primary product of an unlawful act or because it was obtained by the exploitation of an unlawful act, the opponent of the claim shall affirm or deny the occurrence of the alleged unlawful act;

(b) As used in this section “unlawful act” means any act the use of any electronic, mechanical, or other device (as defined in section 2510 (5) of this title) in violation of the Constitution or laws of the United States or any regulation or standard promulgated pursuant thereto.

I suspect there will be a lot of motions filed under this section, not just in terror cases, but in other cases in which the defendants are foreign-born. They will seek to have the Government affirm or deny that they were subjects of Bush's warrantless surveillance. I'm not encouraging the filing of the motions, TalkLeft does not give legal advice, it's just an interesting thought.

Lots of off-line activity for me today means an open thread for you. In the news today.

• The New York Police Department planted spies at protests and videotaped protesters.

• FISA Court judges will get a briefing on what the Administration has been doing.

Several members of the Foreign Intelligence Surveillance Court said in interviews that they want to know why the administration believed secretly listening in on telephone calls and reading e-mails of U.S. citizens without court authorization was legal. Some of the judges said they are particularly concerned that information gleaned from the president's eavesdropping program may have been improperly used to gain authorized wiretaps from their court.

Check out the Martini Republic's Christmas Time Magazine cover, particularly the top right.

In the "your papers please" category this week, we have the Ohio Patriot Act that is sitting on Gov. Taft's desk waiting for his approval.

The lengthy piece of legislation would let police arrest people in public places who will not give their names, address and birth dates, even if they are not doing anything wrong.

[Via Altercation.]

The Death Penalty Information Center reports that death sentences have hit their lowest level since 1976.

In 1999, 276 death sentences were imposed. The figure has dropped every year since, falling to 125 last year. With 10 days to go in 2005, 96 death sentences are projected to be handed down this year, the lowest total since 1976.

The reasons are varied:

Richard C. Dieter, executive director of the center, based in Washington, D.C., said several factors had contributed to the decrease in death sentences — prime among them the fact that jurors in all but one of the 38 states that had capital punishment laws were able to render sentences of life without parole. Jurors, he said, are becoming increasingly comfortable with voting for such sentences rather than death.

Here are the latest death penalty statistics by state.

I know I've already written about how Dick Cheney knocked the crutches out from under Tiny Tim with his tie-breaking vote on the budget bill, but I've only just begun to fight. The bill now goes to the Senate House. That means there's time for you to contact your Representatives and urge them to vote against it. The New York Times has this summary of what's in it.

• States would have sweeping new authority to impose premiums and co-payments on millions of low-income people covered by Medicaid. States can also scale back benefits for many recipients.

• For the elderly, it would be more difficult to qualify for Medicaid coverage for nursing home care if they transfer assets to their children or other relatives for less than fair market value.

• Medicare would freeze payments for home health services and reduce payments for medical imaging.

There are honors, and then there are honors. Lawyers' Weekly has released its list of the year's 11 top lawyers.

It includes Special Counsel Patrick Fitzgerald, Chief Justice John Roberts.... and TChris, who blogs here on TalkLeft.

TChris argued the Booker case in the U.S. Supreme Court, which along with the Fan Fan case argued at the same time by Rosemary Scapicchio of Boston, resulted in the Court's decision that the federal sentencing guidelines are advisory only. The decision is widely referred to as one which revolutionized federal sentencing and turned the existing system on its head.

For newer TalkLeft readers, TChris has been blogging on TalkLeft since December, 2003.

Congratulations, TChris. This really rocks.

After a day of haggling, filibustering Senators have agreed to extend the Patriot Act for six months while they continue to press for more protection of civil liberties. The bill has to be approved by the full Senate, the full House and then Bush. [Update: The Associated Press reports the full Senate has passed the extension bill.]

Sen. Russ Feingold says in a statement tonight (received by e-mail)

One thing is clear - what happened in the Senate over the past few weeks shows that this conference report is dead."

At least it also puts Souder's Sensenbrenner's meth bill restricting the sale of cold pills on hold. We can sneeze without fear.

Same-sex unions are now legal in Great Britain. Among those taking advantage of the new law was Elton John.

Sir Elton, 58, and the Canadian film-maker, 43, were among 700 gay couples to join in civil partnerships yesterday, the first day that same-sex unions became legal in England and Wales. The partnerships allow same-sex couples new rights in areas such as employment, pension and inheritance, although the ceremonies are still not officially classed as "marriages".

There's a big debate going on over whether former President Bill Clinton believed he had the inherent power to conduct warrantless electronic surveillance outside of FISA. Byron York says yes. Think Progress says no. Atrios explains.

For the record, I don't think Clinton broke the law while I think Bush probably did.

That said, let me also add that Bill Clinton was no friend on privacy issues (or on criminal justice issues for that matter.) Remember when the Clinton Administration acknowledged in June, 1996 that it improperly obtained more than 400 private and restricted FBI files of employees of previous administrations? (There are 882 articles on Lexis mentioning this between June 1 and June 30, 1996.)

The ACLU has filed multiple Freedom of Information Act requests over Bush's executive order for warrantless electronic surveillance and physical searches of persons within this country.

Here's the one to the National Security Agency.(pdf)

The requests submitted today seek all records about "the policies, procedures and/or practices of the National Security Agency for gathering information through warrantless electronic surveillance and/or warrantless physical searches in the United States ...".... Information received by the organization will be made public on its Web site.

Also recommended: The ACLU's FISA page and spy file page.

For those who want the tech talk of data-mining and interception capabilites, check out:

The end-of-year list season has officially opened with Arianna's list of things she'd like to forget. My favorites:

That there is a debate about whether waterboarding is actually torture.

Judy Miller, Bob Woodward, Viveca Novak: The Three Media Stooges of Plamegate

That Bush waited five days before visiting the Gulf following Katrina. And that once he got there, he joked about his hard-partying days, congratulated Mike Brown on doing a, and promised to rebuild Trent Lott’s house.

There's something for everyone in her list.

Bump and Update: It's now official. Jeanine Pirro has issued a statement announcing she's dropping out of the Senate race. She says her heart is in the Attorney General's race. Reuters is less than kind, repeating the worst about Pirro -- her husband:

One political problem for Pirro, who frequently appears on national talk shows and was listed by People Magazine in 1997 as one of the 50 most beautiful people in the world, was her marriage. Albert Pirro fathered an out-of-wedlock child and served 11 months in federal prison for tax fraud.

The paper also notes that Jeanine supports abortion and gay rights which conservatives could hold against her. That should be no problem in the AG's race, where she more than overcompensates by wanting life plus cancer for every person charged with a sex offense. [hyperbole, but only slight.]

******
Original Post: