John Perry Barlow, the man who popularized the term 'cyberspace', discusses the Total Information Awareness project, online activism, file sharing, and the prospect of a digital counterculture in this Mother Jones interview . [Link via Ernie the Attorney]

The Total Information Awareness project is truly diabolical -- mostly because of the legal changes which have made it possible in the first place. As a consequence of the Patriot Act, government now has access to all sorts of private and commercial databases that were previously off limits.... It's a combination of the Patriot Act and a Justice Department directive that was issued in May by John Ashcroft. Now I believe that this invasion of privacy is just as unconstitutional as its ever been, but nothing is unconstitutional until somebody's taken it to court and proven it.

The ACLU is planning to slam Attorney General John Ashcroft in a new ad campaign:

The advertisements paint Ashcroft as a zealous ideologue who has hacked away at American civil liberties using post-September 11 concerns about national security as a pretext.

The advertisement accuses Ashcroft of "shamelessly using the events of September 11 as a subterfuge," to undermine the rights enshrined in the US Bill of Rights, such as freedom of speech and association.

"Today, the government can get a secret warrant to search your home without telling you until long afterwards," the advertisement reads.

"Today, the government can monitor your Internet use, read your emails, examine your online purchases with minimal judicial oversight. Today, you can be detained without access to a lawyer, without being charged with a crime.

"Today, John Ashcroft has authorized the FBI to monitor your political activities, to send agents into your house of worship. We can only guess what tomorrow will bring."

The "hard-hitting," ad, which will begin running in a selection of national current affairs and political magazines later this month, concludes with an exhortation to the American people to "stop the Ashcroft assault on our civil liberties."

With the Justice Department's newly revealed attempt to enact Patriot Act II, the ads couldn't come at a better time.

In the Zacarias Moussaoui case, as anticipated, the Government has appealed the trial judge's order that Ramzi bin Al-Shibh be made available to defense counsel for an interview. It has also fied a motion to stay trial court proceedings in the case until the appeal has been decided.

If the Government loses, many are predicting the Government will terminate the federal prosecution of Moussaoui, label him an "enemy combatent" and try him before a military tribunal, rather than comply with the Court's order to make Bin al-Shibh available to the defense.

A federal law enforcement official said the Defense Department and intelligence agencies also did not want to interrupt the "psychological games that are being played" with Mr. bin al-Shibh, who is reported to be undergoing intensive interrogations overseas.

More than two dozen men arrived at the U.S. prison at Guantanamo Bay in Cuba on Friday, bringing the total number of detainees at the naval base up to about 650.

The Pentagon released figures on suicide attempts at the prison camp. There have been 15 suicide attempts in the past year since the camp opened. Five prisoners tried to hang themselves withing the past three weeks.

Amnesty International is calling for an investigation to determine whether interrogation techniques are causing the suicide attempts.

The Government would not disclose exactly how many new prisoners arrived or what country they came from.

"The detainees, treated by the U.S. government as enemy combatants, are being held indefinitely without being formally charged or tried, and they are interrogated without access to lawyers."

For an an in-depth, section-by section analysis of the Patriot Act, for only $19.00, check out Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001: An Analysis by Stanley Mailman; Jeralyn E. Merritt; Theresa M. B. Van Vliet; Stephen Yale-Loehr (published by Lexis Publishing and available on line through the link above.)

"It contains expert analysis of the important substantive changes included in the Uniting and Strenthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, Pub. L. No. 107-56, 115 Stat. 272. The organization of the pamphlet tracks the legislation, broken down into sections discussing the statute's provisions with respect to each of the following topics:

enhanced surveillance procedures
money laundering and financial crimes
protecting the border
investigation of terrorism
providing for the victims of terrorism, public safety officers, and their families
information sharing among federal and state authorities
strengthening the criminal laws against terrorism
improved intelligence

The authors describe the important changes made by the legislation and analyze the potential impact of those changes--both positive and negative."

We are a proud co-author of the work. Trust us, none of the sections we wrote, which include the conclusion, say anything positive about the Act.

Key details of Patriot Act II (the Domestic Security Enhancement Act of 2003) include:

Section 201, "Prohibition of Disclosure of Terrorism Investigation Detainee Information": Safeguarding the dissemination of information related to national security has been a hallmark of Ashcroft's first two years in office, and the Domestic Security Enhancement Act of 2003 follows in the footsteps of his October 2001 directive to carefully consider such interest when granting Freedom of Information Act requests. While the October memo simply encouraged FOIA officers to take national security, "protecting sensitive business information and, not least, preserving personal privacy" into account while deciding on requests, the proposed legislation would enhance the department's ability to deny releasing material on suspected terrorists in government custody through FOIA.

Section 202, "Distribution of 'Worst Case Scenario' Information": This would introduce new FOIA restrictions with regard to the Environmental Protection Agency. As provided for in the Clean Air Act, the EPA requires private companies that use potentially dangerous chemicals must produce a "worst case scenario" report detailing the effect that the release of these controlled substances would have on the surrounding community. Section 202 of this Act would, however, restrict FOIA requests to these reports, which the bill's drafters refer to as "a roadmap for terrorists." By reducing public access to "read-only" methods for only those persons "who live and work in the geographical area likely to be affected by a worst-case scenario," this subtitle would obfuscate an established level of transparency between private industry and the public.

The Bush Administration is proposing sweeping enhancements to the Patriot Act. They are seeking greater powers so they can

increase domestic intelligence-gathering, surveillance and law enforcement prerogatives, and simultaneously decrease judicial review and public access to information.

The Center for Public Integrity has obtained a draft of the proposed changes, and has published it here.

The Justice Department released a statement saying that they had not sent anything to Aschroft or the White House. But a "control sheet" of the Office of Legislative Affairs shows that a copy of the proposed bill was sent to Cheney and House Speaker Hastert.

According to terrorism law expert and Georgetown Law Professor David Cole, author of Terrorism and the Constitution,

This proposed law, he added, “would radically expand law enforcement and intelligence gathering authorities, reduce or eliminate judicial oversight over surveillance, authorize secret arrests, create a DNA database based on unchecked executive ‘suspicion,’ create new death penalties, and even seek to take American citizenship away from persons who belong to or support disfavored political groups.” Cole found it disturbing that there have been no consultations with Congress on the draft legislation. “It raises a lot of serious concerns and is troubling as a generic matter that they have gotten this far along and tell people that there is nothing in the works. What that suggests is that they’re waiting for a propitious time to introduce it, which might well be when a war is begun. At that time there would be less opportunity for discussion and they’ll have a much stronger hand in saying that they need these right away.”

Again, you can read the Government's legislative "wish list" here, but be patient, it's getting a lot of hits and is slow in loading.

Nat Hentoff, not a liberal by any stretch, but very good on civil liberties issues and great on bashing Ashcroft, has a new column today called Schumer v. Pickering--arguing that Pickering's record has been misconstrued by" lazy journalists."

Hentoff reviews the infamous cross-burning case--and points out some good sentencing decisions Pickering made on behalf of black offenders. A criminal defense lawyer we know and respect in Mississippi also sticks up for Pickering - big time.

We haven't changed our mind and we still oppose Pickering ( here's why), but today we thought we'd bring out the other side. Especially since we are far more opposed to Priscilla Owen and Miguel Estrada.

We hope that those who think we would oppose anyone Bush nominated will read our support of Edward C. Prado, currently a U.S. District Court Judge for the Western District of Texas, who was just nominated by Bush for a seat on the Fifth Circuit.

"After his arrest on pot charges in October, medical marijuana activist Steve McWilliams vowed to go to trial in federal court. He wanted the chance to argue he had a right to grow marijuana under California's Proposition 215, which allows ill people to grow pot. "

"McWilliams said yesterday he has given up that fight and will accept a plea agreement offered by prosecutors."

McWillians is going to plead to felony cultivation of 25 plants. He will admit that he grew the 25 plants growing in his front yard that the DEA uprooted.

"In my heart I wish we could go to court and say: 'Seat a jury. Let's have a fair trial,' " McWilliams said. "More than anything we wanted to tell a jury of our peers about our case. That simply can't happen now." If McWilliams, 48, had gone to trial and had been convicted of two felony charges, he would have faced five to 40 years in prison. "

Prosecutors will recommend no more than six months in prison. His lawyer says he may not serve any prison time. By our calculations under the Sentencing Guidelines, he could get no jail and 3 months of home detention. The good news is that the Government is allowing McWilliams to enter what is referred to as a "conditional guilty plea" whereby McWilliams retains the right to appeal the medical marijuana issue to the 9th Circuit.

Given the rulings in the Rosenthal case, this sounds like a win-win for McWilliams--except for the felony on his record --and having to stay on the straight and narrow while on probation.

Lisa English of Ruminate This asks, Where's the Coverage?. We want to know too. We'll try to follow up this weekend.

IsThatLegal? is all over Coblegate. Great coverage by Law Professor Eric Muller of University of North Carolina at Chapel Hill.

Today Mueller writes that Coble was quoted as saying that if he was proven wrong about his comments, he'd apologize. The proof is up -- Mueller says he's found the goods to force Coble's promised apology.

Texas has said it will ignore the injunction against executions issued Wednesday by the World Court.

The International Court of Justice at The Hague on Wednesday ordered the U.S. to stay the executions of three Mexicans and reserved the right to intervene in dozens of other cases.

Mexico brought the World Court case last month, arguing that 54 of its citizens on death row should get retrials. It accused U.S. police of violating an international treaty by failing to tell the men of their right to consular assistance after being arrested.

The World Court said it acted in three cases where the men were at risk of execution before the lengthy case is finished.

On Tuesday, Texas executed its 296th prisoner since 1982, when it's death penalty was reinstated. In response to news that the International Court of Justice at the Hague ordered the United States to stay the next three pending executions of Mexican nationals until they prove that the defendants were given access to consular assistance, as required by international law, Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, issued the following statement:

"We hope the United States will follow the order of the World Court to stay the pending executions of the Mexican nationals. Unfortunately, our past record indicates that we will not.

"It would be ironic for the United States to ignore the order of a World Tribunal at the same time we threaten war on another nation on the ground that it flouts the directives of a world body.

"The rule of international law should certainly be respected as much when it prevents death as when it arguably allows for war. We should consider following the lead of our neighbors in Mexico in their respect for both life and the law."