Although it's still early, our vote for editorial of the day goes to the Virginia Pilot for Liberty in Limbo in the Norfolk Brig, and its sharp rebuke of the decision of the 4th Circuit Court of Appeals in the Yaser Hamdi case:

Americans who fear government abuse of power should be concerned by the constitutional no man's land in which Yaser Esam Hamdi finds himself. A three-judge panel of the 4th Circuit Court of Appeals ruled Wednesday that the government can hold indefinitely a U.S. citizen arrested overseas in wartime, without any constitutional protections, if the military merely declares him an ``enemy combatant....''

The Richmond-based panel included possible Supreme Court nominee J. Harvie Wilkinson III. It said that because the Constitution empowers the executive branch to wage war, the judiciary must defer to the military when cases like Hamdi's arise..... (emphasis is our's)

As justification to jail Hamdi indefinitely, the government relied on a meager two-page statement from a mid-level Defense Department appointee not even present at Hamdi's capture. Hamdi has not seen -- and now cannot see -- the evidence against him. Nor will he be allowed a chance to present his version of the facts, or even contest that he was an enemy combatant in the first place....

In this ill-defined, undeclared war, some of our freedoms will likely be sacrificed to ensure our collective security. But Americans have always been able to look to the courts for reason, fairness and defense of liberties. With this decision, the judiciary has abdicated its duty to act as a check on executive branch power in wartime. File this away: The government can now label someone an enemy combatant, imprison him indefinitely and never have to defend or justify the accusation.

Update: Best of the Blogs (The Daily Dish Digest) picks up on this Pilot editorial, and about “possible Supreme Court nominee J. Harvie Wilkinson III, asks, ”Would a sitting judge sell out his country’s hard-earned freedoms and whore himself for a chance to play the Big Room? You bet your ass, Red Ryder."

Deathwork: Defending the Condemned by Michael Mello

Buy the Book Today!

"Legal cases are stories, and some of the most compelling -- and the most disturbing -- are those that take place on death row: the innocent man executed, juveniles and the mentally ill condemned to die, a smoking electric chair, a napping defense attorney, a senile hit man."

"These are the stories in which Michael Mello, as a capital public defender, played a crucial role, and they are the cases that make up Deathwork, a moment-by-moment, behind-the-scenes look at the life and work of a death row lawyer and his clients."

"Part memoir, part legal casebook, Deathwork offers a gritty, often anguishing picture of what Supreme Court Justice Harry Blackmun called the American legal "machinery of death." The stories Mello tells raise questions about legal issues-from prosecutorial misconduct to the racial inequities of sentencing, from the rules of evidence to the rights of the mentally ill -- that here take on a life-and-death urgency. They describe in detail how constitutional issues are raised postconviction, and how those issues are adjudicated by the courts and in accordance with bizarre claims of objectivity."

"And they show, with a painful immediacy and authenticity, what it is like to live and work under an impending death sentence, the adrenaline rush of the stay or unexpected success, the inconsolable sadness upon the execution of the sick, the afflicted, the innocent."

The paperback is $13.97, compared with $54.95 for the hard cover. And Amazon only has five paperbacks left. Need we say more?

Mexico filed suit Thursday against the US in the International Court of Justice in the Hague over the U.S.’s failure to comply with the Vienna Convention’s guarantee of allowing foreign nationals access to consular officials prior to interrogation. Mexico is also seeking provisional measures, essentially a temporary restraining order, against all capital prosecutions in the US against Mexican nationals until the case is resolved.

The Court has tentatively scheduled a hearing for January 20th to consider Mexico's request for provisional measures.

Mexico issued a press release about this today, in Spanish, we're looking for an English copy.

Joe Conason gets the goods on Bush Judicial Re-nominee Charles Pickering. Atrios has a lot more--we hope Atrios will lock onto this story the way he did with Trent Lott--we want him to have the same success.

Don't forget that Bush Re-Nominee Priscilla Owens needs to be rejected as well-- here are our reasons why.

Chicago Tribune Columnist Eric Zorn says that Illinois Governor George Ryan's sincerity is hard to doubt if you do the math.

Any political strategist who suggests that Ryan could reverse his fortunes by crusading against the death penalty will be fired for incompetence. Even supposing that Ryan doesn't care one way or the other about the death penalty, it looks like the absolutely wrong issue on which to launch a comeback, persuade the law to go easy on him and get reporters to stop writing so much about his sleazy past.

Zorn notes Ryan's popularity has dwindled, articles about his alleged misdeeds and the indictments of those in his Administration have multiplied, most people support the death penalty making it an unpopular issue to begin with, even support for Ryan's moratorium has declined. So what gives? What's really motivating Ryan?

That Ryan stayed the course anyway suggests three possibilities. One, he is insane. Two, he has a political and legal death wish. Or three, he really is profoundly, morally troubled at the idea of giving the power to kill to an arbitrary, error-prone system presided over by officials who can't admit when they're wrong and are stubbornly resistant to reform.

Never mind what he says or what his supporters and detractors say. Never mind the promise of international plaudits, the slough of troubles he will wade into when he leaves office Monday or the cohort of chortling cronies he will leave behind in their soft new state jobs.

To see George Ryan's heart on the death penalty, look at the numbers.

We're behind door number three.

Via Daily Kos, who found these numbers from Zogby's latest poll so astounding he blogged while on hiatus:

"Slightly more than one in three voters (35%) say they would vote to re-elect President Bush regardless of who he runs against, compared to 56% who would not vote to re-elect Bush regardless of who he runs against."

"Results also show that voters believe Democrats over Republicans are the party better able to handle jobs/economy (Democrats 43%, Republicans 36%), healthcare (Democrats 47%, Republicans 32%), the environment (Democrats 55%, Republicans 28%), and traditional values like tolerance (Democrats 45%, Republicans 30%)."

On Jan. 7, 2003, Rep. John Conyers and 20 co-sponsors introduced the Restoration of Fairness in Immigration Act in the House of Representatives. This "Fix '96" legislation amends the Immigration and Nationality Act with respect to due process in immigration proceedings, including due process in expedited removal proceedings, judicial review in immigration proceedings, and detention proceedings and detention alternatives. The bill is a repeat of H.R. 3894, which Rep. Conyers introduced last year.

We'd like to see it passed this year, so we are spreading the word. We'll have more details soon. Thanks to Kyle O'Dowd, Legislative director of the National Association of Criminal Defense Lawyers (NACDL) for passing this info on to us.

Rick Reimer, who was smoking a joint when he was pulled over by cops for a traffic violation (crossing the center line), has been found not guilty by a Canadian judge of driving while his ability was impaired.

Reimer, a retired Canadian lawyer with MS, had an exemption from Health Canada allowing him to smoke marijuana for medical reasons.

Defending himself in a trial to the Court, Reimer admitted he was driving while smoking pot, but said it did not affect his driving and was not the cause of his traffic violation. The Judge acquitted Reimer, saying he had a doubt as to whether it was the pot or the MS that caused Reimer to swerve.

"Reimer called several of his friends to testify in the case and they said they drive while smoking pot, too. Some said it made their driving better."

After the trial, Reimer said, "The most important thing, in my opinion, that the judge said is that this is an area that needs a lot more scientific study. It also, in my opinion, needs a lot more democratic debate."

The prosecutor in the case said that the Crown received a very fair trial from the Judge but has not decided yet whether to appeal.

"Defense attorneys for sniper suspect John Lee Malvo asked a judge Thursday to bar the public and the press from a preliminary hearing Tuesday that will outline some of the evidence against him. A Juvenile and Domestic Relations Court judge will hear arguments on the motion Friday afternoon. "

Unfortunately, we doubt the defense will prevail. But, the additional negative publicity may help Malvo in a future change of venue motion--which we think should be granted. Judge Matsch wrote an excellent opinion on the topic when he granted a motion by McVeigh and Nichols to move their trial outside of Oklahoma. [We say "trial" as opposed to "trials" because at the time he granted the motion, the two cases had not been severed yet for trial.] You can read the opinion here.

It may be tougher for Malvo and Muhammed to get a change of venue because the case is in state court, as opposed to federal court-- but the Judge should at least move their trials to a county in Virginia where the citizens were less directly affected by the attacks. Putting aside the issue of the effect of pre-trial publicity on the prospective jurors, there is also the issue that a large number, if not all, of the citizens of the Virginia counties where the two are charged felt personally victimized by attacks. A crime victim can't sit on the jury of the man accused of perpetrating the crime against her. At least in any other case that would be true.

Via Atrios, another example of horrendous police conduct--you have to read this one to believe it: As family shrieks, police kill dog

Former Congressman Bob Barr is outraged (as are we) about this over-the-top and hopefully illegal Virginia police practice (remember, Barr is now working with the ACLU) in Crimes before the fact :

"The gendarmes are going into local area bars undercover, waiting for patrons to imbibe what might possibly be too much inside the bar, forcing them outside for a mandatory blood-alcohol content test and, if they fail, citing them. In some instances, eschewing the boredom of operating undercover, they are charging in with full, SWAT regalia, and pulling patrons outside the bar. All this with no evidence whatsoever the poor souls enjoying a drink at the local pub were going to get behind the wheel of a vehicle and drive under the influence."

Barr's opinion on the practice? We have to give the former Congressman credit here, let's face it, he's due:

"This actually is a frightening scenario that one hopes is nipped in the bud. Not only is this sort of Gestapolike behavior chilling in the extreme, but if condoned or encouraged, will find its way into other areas of detaining or arresting people for potential criminal behavior."

Come to think of it, however, we're already on the way to that scenario, what with the manner in which law-abiding citizens are subject to humiliating, public partial strip searches for no reason other than they might have looked at an airport security person in the wrong way, or bought a ticket in a manner different from their usual routine."

"All this fits right in with the "Eye-in-the-Sky" perspective of retired Adm. John Poindexter and the cherished Total Information Awareness system he's building at the Pentagon — collect all the information on as many people as you can in advance, decide who might be bad, and act on it. So what if you invade the privacy of virtually every law-abiding citizen in the country; you might be able to possibly identify a potential lawbreaker. The good retired admiral would really like those guys down at the Fairfax precinct. They're his kind of guys."

Instapundit's on our side on this one as well. Law Prof. Reynolds says, "Sorry, but this is inexcusable, and some of the examples make clear that this is really just an in terrorem effort, not serious law enforcement. I hope a bunch of people sue. Could it be another Houston in the making? We'll see."

How much do you believe in coincidences? We'd say not enough to believe these two sets of arrests are not connected.

1. Three Texas inmates serving long sentences (two for capital murder) have been charged with plotting in 2001 to kill federal court Judge Richard P. Matsch--the Judge who presided over the McVeigh and Nichols trials in the Oklahoma City Bombing case. One of the inmates is charged with soliciting the other two.

2. Matt Hale, the leader of a White Supremacist organization, was arrested in Chicago Wednesday on charges that between Nov. 29 and Dec. 17, he tried to get someone to kill U.S. District Judge Joan Humphrey Lefkow. No details are available about who he allegedly tried to enlist.

Likewise, few details are available about the plot to kill Judge Matsch. We have practiced before Judge Matsch our entire career--rarely have we encountered a Judge who is as determined to provide a fair trial to the defense. He doesn't suffer fools and he sounds off equally at the Government and the Defense. We've served on several committees at his request, and have a tremendous amount of respect for him. We are shocked and angry at the allegations. But we are also keeping in mind that charges are not evidence, and it would be wrong to presume that those charged are guilty.

Judge Matsch was the Chief Judge of the District of Colorado until just a few years ago, when age laws required him to leave that position. He continued to preside over trials as a district court judge, working every day nothwithstanding that he was waiting for a liver transplant (not due to any alchohol related condition.) He got the transplant, returned to work, and just recently took senior status.

In 1987, Judge Matsch presided over another high-profile case with white supremacist defendants--one that involved the murder of Denver radio host Alan Berg. The defendants were convicted. One of them, David Lane, was sentenced to 150 years.

We have no information to connect the cases of Hale and the Texas inmates. Nor are we implying a connection between either of these two cases and the Alan Berg case, but like we said, we don't much believe in coincidences--particularly when law enforcement swoops down in different parts of the country in the same day and charges unrelated people with similar crimes. On the other hand, we could just be a little paranoid.