In solidarity with Al Franken, being sued by Fox News for using their trademarked "Fair and Balanced" tagline, bloggers are adding the words to their blog titles: See, Atrios, vaara, Maxspeak, Jesse at Pandagon, and Blah3 --all are now Fair and Balanced weblogs. Atrios says "Join the fun!"

We can't join because we are not a neutral or fair and balanced weblog . We proudly promote one side. But what fun to see hundreds of blogs suddenly declare themselves "fair and balanced" webzones.

Update: Instapundit calls the Fox suit "asinine" and gives himself a new tag line. Law Prof Eugene Volokh weighs in against the suit as well.

Bump and Update: The ABA House of Delegates will be debating and voting on a resolution criticizing several of the proposed rules for military tribunals today, so we are bumping up this post from Sunday:

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Saturday, at the ABA Criminal Justice Section Council meeting in San Franscisco, the Council took up the issue of the proposed rules for military tribunals. On August 2, the NACDL Board of Directors unanimously voted to oppose the rules in a resolution that said it would be unethical for a criminal defense lawyer to represent an accused before these military commissions in their present form because the restrictions imposed upon defense counsel make it impossible for counsel to provide adequate or ethical representation.

The ABA Task Force on the Treatment of Enemy Combatants, chaired by Neal Sonnett of Miami, joined with the Criminal Justice Section, NACDL and other bar groups in the preparation of a comprehensive report and resolution that will be presented this Tuesday to the House of Delegates. You can read a non-lawyer description here.

The Resolution calls upon the Government to make seven modifications in the tribunal rules. The resolution passed the Criminal Justice Section by a wide margin, and now moves on to the House of Delegates. Here they are in long form.

1. The government should not monitor privileged conversations, or interfere with confidential communications, between any defense counsel and client;

2. The government should ensure that CDC who have received appropriate
security clearances are permitted to be present at all stages of commission
proceedings and are afforded full access to all information necessary to prepare a defense, including potential exculpatory evidence, whether or not used, or intended to be used, at a trial;

3. The government should ensure that CDC are able to consult with other attorneys, seek expert assistance, advice, or counsel outside the defense team,
and conduct all professionally appropriate factual and legal research, subject to their duty not to reveal or disseminate classified or protected information or to such other conditions as the presiding officer of a military commission may determine are required by the circumstances in a particular case after notice and hearing;

It's official. Deputy Attorney Larry Thompson is leaving the Justice Department. Thompson is the 6th Justice Department official to depart in recent months. As we noted yesterday , Thompson's departure has us concerned:

We like Larry Thompson a lot, and have always felt a little better knowing he was at Justice, hopefully providing some measure of moderation to Ashcroft. We don't like the list of possible replacements and are concerned that Larry's departure will be a bad omen for freedom and justice.

Apparently, Congress is concerned as well. The New York Times reports ,

Indeed, some lawmakers — both Republicans and Democrats — are already voicing concerns about the process for replacing the officials.

In the past three weeks, Senator Charles E. Grassley, Republican of Iowa and a senior member of the Judiciary Committee, blocked Senate votes on the nominations of three assistant attorney general nominees.

Members of Congress have complained repeatedly about what they see as the Justice Department's failure to heed their concerns on the Patriot Act and other issues. And Senator Charles E. Schumer, Democrat of New York, said today that he had one word of advice for the new batch of officials who will lead the Justice Department: "consult."

The attorney general "would be wise to consult Congress on the new people he wants to bring in and the newcomers would be well served by picking up the phone to work with Congress" on Justice Department policy, Mr. Schumer said.

Thompson will be going to the Brookings Institution for six months, and then back to his home in Georgia, to teach and perhaps practice law. He'd like to take some pro bono cases.

The incoming President of the American Bar Association, Dennis Archer, pledged today that the organization will conduct an examination into mandatory minimum sentences and lengthy prison terms.

The American Bar Association will look at whether mandatory minimum prison terms should be abolished, the group's new president said Monday. Over the coming year, the ABA will also consider whether federal sentencing guidelines should be relaxed so that prisoners face less severe terms, and whether some current prisoners should win pardons, ABA President Dennis Archer said.

Mandatory minimum sentences came into the federal system in 1986 under President Reagan. They were expanded in 1988. They have been sharply criticized ever since.

In 1986 Congress enacted mandatory minimum sentencing laws, which force judges to deliver fixed sentences to individuals convicted of a crime, regardless of culpability or other mitigating factors. Federal mandatory drug sentences are determined based on three factors: the type of drug, weight of the drug mixture (or alleged weight in conspiracy cases), and the number of prior convictions. Judges are unable to consider other important factors such as the offender's role, motivation, and the likelihood of recidivism. Only by providing the prosecutor with "substantial assistance", (information that aids the government in prosecuting other offenders) may defendants reduce their mandatory sentences. This creates huge incentives for people charged with drug offenses to provide false information in order to receive a shorter sentence.

Once again, we see how our Government can barter away the threat of a long jail sentence and presto, there's the light of liberty at the end of the tunnel. The Guardian reports the U.S. and the two British detainees at Guantanamo (and perhaps one Australian) are in the midst of plea negotiations.

According to the report, which originated in the Wall Street Journal, here's the deal:

The two Britons, Moazzam Begg and Feroz Abassi, provide information to the U.S. They plead guilty to war crimes. They renounce Osama and terrorism. They say they were well treated at Guantanamo. In exchange, they get a reduced jail sentence.

That happens all the time in federal criminal courts. But this isn't federal criminal court. This is the military. The men are being held as enemy combatants. So here's the kicker: They have to make this decision on their own, without the help of a civilian defense lawyer. Because, as we know, the Administration holds that enemy combatants aren't entitled to a lawyer.

Clive Stafford Smith, a lawyer who has applied to the Pentagon to represent the British inmates, said the report confirmed what he had learnt - that the Mr Begg and Mr Abassi, were being put under pressure to strike a plea deal before they were allowed to see a civilian lawyer.

Major John Smith, a US military lawyer involved in the cases, denies there are ongoing plea negotiations, although he acknowledges plea deals are permissible under military tribunals. He says the men would be allowed to meet with a military defense lawyer and a civilian lawyer if they chose to do so before having to make a decision. He denies there have been any talks of pleas with the men.

Yesterday we explained what was at stake in the debate over loosening ethical rules for lawyers in a manner that would allow them to disclose certain client confidences. We were against the change. The ABA House of Delegates approved the change today, by a vote of 218 to 201.

An interesting footnote. The incoming ABA President, Dennis Archer, supported the change. But the new President Elect, Robert Grey Jr, opposed them.

Opponents said the ABA was knuckling under out of fear that government regulators might step in to require more cooperation from lawyers if lawyers failed to change they way they do business.

"This is not the proper time to bow to threats by others who seek to regulate us," argued ABA President-elect Robert Grey Jr., who will succeed Archer in 2004.

"It is not a time to take the position that the core values of the profession are subject to compromise."

Update: Elaine Cassel has more on what she terms the Bush Administration's war against you--the client--as well as attorneys:

The Washington Times has an update on the Sniper case, with details of rulings on recent motions favoring the defense.

A federal judge in Boston today expressed grave concern about the death penalty. While ruling that it is not yet time to declare it unconstitutional, Judge Mark L. Wolf said that time may be coming.

Judge Wolf said "substantial evidence has emerged" to show that innocent people "undoubtedly" have been executed. He referred to the 100 plus people exonerated from death row due to DNA and other evidence.

Most significant to us was the Judge's criticism of Ashcroft's failed attempts to obtain a death penalty conviction in 19 of his last 20 attempts. These 19 trials either resulted in life verdicts or straight-out acquittals. The Judge partially attributes this to Ashcroft's faulty policies in selecting cases for death penalty prosecution.

Via The Horse, we learn that The Shorenstein Center has released a new study on partisanship in newspaper editorial pages. The study was written by Michael Tomasky in the Spring of 2003. Tomasky will become the Executive Editor of American Prospect on September 1.

The study was conducted using four major liberal and conservative editorial pages in the U.S. The findings?

...Conservative editorial pages are far less willing to criticize a Republican administration than liberal pages are willing to take issue with a Democratic administration.

You can access the full report here.

MSNBC reports:

The Transportation Security Administration is conducting a “witch hunt” to ferret out and discipline employees in the federal air marshal program who have talked to the media, several sources within the program told MSNBC.com. Some air marshals are even being threatened with having the USA Patriot Act, a law enacted to help fight terrorism, used against them. The Department of Homeland Security, which oversees the TSA, denies that any such investigation is taking place.

[thanks to Patriot Watch for the heads-up]

Sen. Joseph Biden (D-DE) announced he will not run for President. Smart move, he could not have won and he's got it pretty good where he is.

Tonasket? Yes, Tonasket in Okanogan County Washington --the latest small town to pass a resolution against the Patriot Act.

Tonasket has 1,000 residents. One of them, Mark Alan, drafted the two page resolution opposing the Patriot Act. The Police Chief edited it. Two nearby towns are considering adopting it, as is the county.

Its preamble reinforces the notion that America was created "in the shadow of bloody conflicts" with intentionally strict limits on government. It goes on to suggest that the Patriot Act and similar incursions on individual civil rights are unconstitutional.

While supportive of fighting terrorism, the Resolution points out, correctly in our view, that the Goverment was equipped with laws to do so before the Patriot Act.

And it boldly proclaims that any law that "dilutes, weakens or denies" a person's constitutional rights is "unenforceable in our jurisdiction."

True, federal laws trump local ordinances and the Tonasket Resolution may not be enforceable. That's not the point. The point is the message.

...similar resolutions in other U.S. cities contain "unenforceable-in-our-jurisdiction" language to warn the feds that their police are there to protect citizens, not serve as FBI gofers.

The Bill of Rights Defense Committee keeps track of the number of jurisdictions opposing the Patriot Act. The current numbers: "three states and 141 counties and cities representing 16 million Americans."

Here is the text of the Tonasket Resolution: