The Pentagon today released the names of the chief prosecutor and defense lawyer for the upcoming Military Terrorism Tribunals.

Army Col. Frederic Borch III has been named acting chief prosecutor and Air Force Col. Will Gunn has been designated as acting chief defense counsel, Pentagon officials said. Borch and Gunn were scheduled to brief reporters later on Thursday.

On May 2, the Pentagon published the rules that would apply in military tribunal trials.

These have drawn harsh criticism from some legal experts who argue that the rules were crafted to make winning convictions and getting the death penalty as easy as possible.

They point to a series of restrictions placed on defense lawyers -- including monitoring of all conversations with defendants -- and a lack of guidelines for what charges could bring the death penalty. ``To some extent, these things are not set up to give a fair trial, but set up to compel guilty pleas out of people,'' said Michael Ratner, president of the New York-based Center for Constitutional Rights.

We have major problems with the process. The rules provide that those being tried have a right to have a civilian lawyer represent them along with the provided military lawyer. But there are a host of unreasonable conditions attached.

We know we just wrote about this last week, but it's so outrageous, we want to keep it in the forefront. From today's AP wire story:

The only state that dispatches condemned inmates by firing squad is assembling gunmen for back-to-back executions next month.

....Anti-death penalty forces are protesting, arguing that the firing squad amounts to cruel and unusual punishment. And the prison is bracing for large crowds of protesters.

....Utah's use of firing squads predates statehood in 1896 and is a remnant of the early Mormon belief that bloodshed is a required punishment for taking a life, said Richard Dieter, director of the Death Penalty Information Center, which says it is neutral about the death penalty but critical of its application.

....The Utah Corrections Department is recruiting law enforcement officers for two five-person firing squads, asking the police departments in the communities where the crimes were committed to nominate volunteers.

....A hood will be put over the condemned man's head and a target will be pinned over his heart. The executioners will fire simultaneously from gun portals in a separate room at the inmate, seated in a chair about 30 feet away. One of the five rifles will contain a blank so that no one will know who fired the fatal shots.

Jeb Bush and Republican legislators in Florida are closing the state offices that provide legal counsel to those facing the death penalty. We wrote about this at length, here.

The St. Petersburg Times takes Bush and cronies to task today for their misguided action in The Wrong Counsel:

In one of the most short-sighted and callous moves yet in this year's budget process, Gov. Jeb Bush and Republican leaders in the House have begun to dismantle the state offices that provide legal representation to death-row inmates. In his budget proposal, Bush recommended defunding the three Capital Collateral Regional Counsel offices and replacing them with attorneys in private practice willing to take these complicated post-conviction death penalty cases - a move that, in most cases, would guarantee prisoners less qualified, less experienced and less commited counsel.

...This is a done deal, but it is a bad one for Florida. The CCRC is without question the most effective way to provide competent representation to indigent prisoners on death row. Eliminating even part of this program will further weaken Florida's commitment to fairness in its criminal justice system.

....Florida leads the nation in the number of death sentences set aside due to constitutional errors - mistakes that include convicting the innocent. It takes the dogged work of experienced counsel to uncover these errors and set things right. But Bush and House Speaker Johnnie Byrd apparently aren't interested in getting things right. Their interest is in having executions come fast and cheap.

Wired News has the latest on DARPA's proposed spy machine:

It's a memory aid! A robotic assistant! An epidemic detector! An all-seeing, ultra-intrusive spying program! The Pentagon is about to embark on a stunningly ambitious research project designed to gather every conceivable bit of information about a person's life, index all the information and make it searchable.

Wired also reports on the scary phenomenon of Political Control Technology :

The same technological revolution that is now accelerating the development of new medical products is also making it possible for coercive regimes to manipulate human beings by altering their psychological processes, controlling their behavior, interfering with reproduction or tampering with inheritance-- and even to do so without the knowledge of the victims. The International Red Cross, not usually alarmist, has taken the unusual step of issuing an urgent appeal to prevent the use of this technology as a weapon through hostile manipulation of fundamental life processes...."

Mad Kane is celebrating the two Bush appointee resignations with song: Christie Whitman Went To Town (to be sung to Yankee Doodle) and Ari, Ari (to be sung to Monday, Monday). The Christian Science Monitor has this analysis of the Bush team shuffle.

Mary, subbing for Lisa English of Ruminate This has the latest on the FCC media deregulation protests from MoveOn....the grass roots campaign is having an effect. Lisa has an eye problem, we wish for her speedy recovery.

Howard Bashman of How Appealing has a wrap-up of coverage on the Yale Law School bombing and a link to this article on leaks by law enforcement.

To be continued....

Enlightenment in the suburbs of Los Angeles.....the town of Rolling Hills has voted to remove its 45 year old ban on adultery and immoral sex. :

The City Council voted last month to repeal an old ordinance that prohibited immoral conduct, including extramarital sex. The law was passed after the city incorporated in 1957.

"So this is a pro-adultery thing?" joked Councilman James Black in an interview with the Daily Breeze newspaper. "Good for us!"

The ordinance, will be formally repealed at the end of this month, banned immoral conduct defined as "any person exposing his or her person or the private parts thereof; or the doing of any other act with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of any person to whom he or she is not married."

A thousand miles away, the town of Lakewood, Colorado (suburb of Denver) is moving in the other direction by marshaling all its resources to close down a consenual adult S & M club.

Ridiculous law enforcement operation of the week: Police in Osceola County, Florida are going undercover dressed as homeless persons in order to catch motorists running red lights.

Homeless advocates are outraged by an operation where undercover police officers dressed as vagrants, observed drivers running red lights or committing other traffic violations, then radioed ahead to other officers who stopped those cars and wrote tickets.

....Undercover deputies stood along streets and gave the indication they were vagrants by pushing shopping carts and wearing fake teeth and tattered clothing. They also carried small cardboard signs, which read, "Sheriff's traffic sting in progress. Buckle up."

Speaking of "Buckle Up," Colorado has just started "Click It or Ticket," a zero tolerance policy towards wearing seat belts. Driving to and from court in the mountains Tuesday (125 miles each way) we were bombarded with electronic overhead signs displaying the tag line every few miles. It's annoying and distracting because these signs are usually used to warn of traffic hazards like icy roads and falling rocks, so when we see one up ahead, we look up to read it. We also think it's carrying government regulation too far.

"As the sprawling trial of accused Colombian drug kingpin Fabio Ochoa continues in federal court in Miami, Ochoa's attorneys have asked the 11th U.S. Circuit Court of Appeals to prohibit prosecutors and judges from hiding information essential both to their client's defense and the public's right to know."...They contend the "secret dual docket" system is illegal."

Roy Black is lead counsel for Fabio Ochoa. He has been tearing the Government's witnesses up on cross examination. See, here and here.

Now Black, along with the American Civil Liberties Union of Florida and the 1,600-member Florida Association of Criminal Defense Lawyers, are asking the 11th Circuit to void

what they contend is an illegal system in South Florida of maintaining separate public and nonpublic federal court dockets. In amicus briefs filed Monday, they ask the appeals judges to order the Southern District "to cease maintaining a secret dual docket."

....In their appellate brief on Ochoa's behalf filed last week, Black and Strafer argue their client has been victimized by an improper collaboration between prosecutors and the judiciary. They claim that prosecutors and judges have choked off the flow of government information to which Ochoa is rightfully entitled to defend himself.

Matt Yglesias picks up on our "dumb law of the week" post criticizing Iowa for passing a law to equalize the crack/powder cocaine sentencing ratios by raising the penalties for powder offenses. He mentions there were prior federal attempts to do so which failed to pass Congress. Very true.

Sen. Wayne Allard (R-CO) introduced S.1162, the "Powder-Crack Cocaine Penalty Equalization Act of 1997." Then there was S. 2033, "The Powder Cocaine Mandatory Minimum Sentencing Act of 1998 and S. 260 (which almost made it to a floor vote.) Co-sponsors, and sponsors of similar bills, included: Senate Judiciary Committee Chairman Orrin Hatch (R-UT) ; Senate Judiciary Committee Members Spencer Abraham (R-MI); Dianne Feinstein (D-CA) ; Charles Grassley (R-IA) (same), Jon Kyl (R-AZ) ; Senator Charles Robb (D-VA) ; Senator John Breaux (D-La) ; and House Rules Committee Chairman Gerald Solomon (R-NY).

While those bills were pending, over two dozen federal appeals and district court judges -- all of whom formerly served as United States Attorney -- submitted a joint letter to the Senate and House Judiciary Committees that flatly and persuasively opposed these proposals.

From the House Judiciary Committee website:

House Judiciary Committee Chairman F. James Sensenbrenner, Jr. (R-Wis.) and Ranking Member John Conyers, Jr. (D-Mich.) Tuesday released the answers received last week from the Justice Department regarding the USA PATRIOT Act and the war on terrorism. Chairman Sensenbrenner and Rep. Conyers wrote Attorney General John Ashcroft on April 1, 2003 (accessible here) requesting information on these issues.

Among the findings:

~ The Department has used the new powers of the PATRIOT Act for non-terrorism cases (drug violations, credit card fraud, theft from a bank account, a lawyer who defrauded his clients).

~The Department has sought and the courts have authorized delayed notification of search warrants 47 times. Some courts have authorized delayed notification lasting until the indictment was unsealed. The Department has sought extensions of such delayed notifications 248 times.

~The Attorney General made emergency authorizations 113 times for FISA electronic surveillance and/or physical searches in a one-year period.

~Prior to moving to DHS, the INS did not charge any aliens with the expanded terrorism grounds of inadmissibility or deportability provided under section 411 of the PATRIOT Act.

On monitoring of attorney-client communications, Justice says:

~The Attorney General has ordered the monitoring of attorney communications for a single inmate: Sheik Omar Ahmad Rahman, who was convicted for his part in the 1993 plot to bomb the World Trade Center. Rahman and his attorney were notified that their communications were subject to monitoring. No monitoring has occurred, however, because the inmate and his attorneys thus far have chose not to communicate further with each other.

You can read the full 62 page report here. The New York Times' has this on the report.

Tuesday, Senator Kennedy, joined by Senators Leahy, Feingold, and Lautenberg, introduced S.1086 (The JUDGES Act) to repeal provisions of the PROTECT Act (Amber Alert Bill) that do not specifically deal with the prevention of the exploitation of children -- specifically the Feeney Amendment. A similar bill is being introduced in the House by Rep. Conyers.

The remarks of Sen. Kennedy and Sen. Leahy, beginning at S6711 of the Congressional Record of 5/20/03, included the following:

Mr. President, it is a privilege to join my colleagues in introducing this legislation on fairness in our Federal sentencing system. The Judicial Use of Discretion to Guarantee Equity in Sentencing Act, or the JUDGES Act, will repeal a number of controversial sentencing provisions that were added at the last moment to the recently enacted ``AMBER Alert law'' on missing, abducted, and exploited children.

These provisions--called the ``Feeney Amendment''--have nothing to do with protecting children, and everything to do with handcuffing judges and
eliminating fairness in our Federal sentencing system. As Chief Justice Rehnquist said, they ``do serious harm to the basic structure of the sentencing guidelines system and . . . seriously impair the ability of courts to impose just and responsible sentences.''

The judicial nomination of Justice Department official Michael Chertoff was held up today as Democrats wanted to learn more about the ruckus over whistleblower Jesselyn Radack, who, while working in the Justice Department's Professional Responsibility Advisory Office, had issued an opinion that the FBI could not interrogate John Walker Lindh without an attorney present. She was later pressured to resign.

I'm very concerned about this Radack situation," Senator Edward M. Kennedy, Democrat of Massachusetts, said today after meeting with Mr. Chertoff. "It appears she was effectively fired for providing legal advice that the department didn't agree with."

Forbes.Com reports:

Government regulators issued a set of rules that require banks, securities brokers and dealers, mutual funds and other financial institutions to help the feds catch terrorists using their own dollars. There's little proof that the rules will help capture any terrorists, but software makers claim their anti-money-laundering programs could catch fraud.

bq. In an April 30 ruling, the Department of Treasury, the Financial Crimes Enforcement Network and seven other federal regulatory bodies ordered that financial businesses have to implement systems that "determine whether the person [opening an account] appears on any list of known or suspected terrorist organizations," and maintain records of the information used to verify the person's identity.

The feds expect financial institutions to be in full compliance by Oct. 1. Failure to comply could result in criminal prosecution and multimillion-dollar fines. Prosecutors in New York, using the Patriot Act's provision to report suspicious activity, already slapped a $4 million fine on Broadway Bank for "failing to maintain a legally required anti-money-laundering program."

But the punchline is at the end:

Given the system's wealth of intelligence, banks are already looking to use their anti-money-laundering software to mine customer data for marketing purposes and enhance fraud-protection services.

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