A federal judge has ruled that lawyers for detained "dirty bomb" suspect Jose Padilla can challenge his detention in court.

The ruling is a setback for the Government whose lawyers have been arguing that the Administration's decision to detain suspects as enemy combatants is not subject to judicial review.

The Judge, Michael Mukasey, did not reach the issue of whether Padilla is being detained lawfully, but the decision allows Padilla's defense counsel to seek his release and to meet with him at least until a decision is made.

The decision is a partial victory for the White House as well in that it holds ''The president ... has both constitutional and statutory authority to exercise the powers of commander in chief, including the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil.''

The full text of the decision is available here.

The Supreme Court hears argument today in Martinez v. Chavez, a case that may determine the continued viability of Miranda rights. We reported on it here.

Massachussetts Senator and presidential hopeful John Kerry is looking better and better to us. He was interviewed Sunday by Tim Russert on Meet the Press about his opinions on the death penalty. Here's what he said:

MR. RUSSERT: David Broder wrote a column in June which I want to show you again: ”[Sen. John] Kerry is also a man who opposes the death penalty, wants to restrict access to guns and voted against the resolution approving the start of ground operations against Saddam Hussein in 1991—just what you would expect from Ted Kennedy’s partner and Michael Dukakis’s running mate, the Republicans will surely say.”

The Congressional Quarterly does an analysis of key votes and let me show you. Over the last four years, Kennedy and Kerry voted exactly alike 100 percent of the time over your 17 years in the Senate now. You’ve voted, like, 93 percent of the time. Will you have Senator Kennedy’s support for your presidential run?

SEN. KERRY: Well, it’s up to Senator Kennedy to make any announcement about his support, but Icertainly would want it and I would welcome it. I think he’s an extraordinary legislator, and the fights he has fought are fights that have made a difference to the quality of life of our fellow Americans. I differ with him on some issues. He knows that, and I think you have to look at those issues. I voted...

MR. RUSSERT: But won’t you be branded another Massachusetts Ted Kennedy liberal?

SEN. KERRY: I think, Tim, as people get to know me in the course of this, they’ll know the things that I have fought for and the things I stand for. I was a prosecutor. I’ve sent people to jail for the rest of their life. I’m opposed to the death penalty in the criminal justice system because I think it’s applied unfairly, as even Republican governors have determined, and because I’m for a worse punishment. I think it is worse to take somebody and put them in a small cell for the rest of their life, deprived of their freedom, never to bed. Now, I think that’s tougher. Let me just finish.

MR. RUSSERT: But, Senator, why shouldn’t Timothy McVeigh, who blew up the Oklahoma building, or if John Muhammad is convicted of being a sniper here in Washington—why shouldn’t they receive the death penalty?

SEN. KERRY: Tim, I think that, as I said, you know, different people have different opinions about what’s worse. I’ve seen people die and I know what it’s like to almost die. I don’t think that—you know, dying is scary for a while, but in the end, the punishment is gone. When you’re alive and you’re deprived of your freedom each day and you’re in tough circumstances—and I’m talking about tough circumstances. I’m not talking about some cushy situation where they live off the fat of the land in prison. I’m talking about tough. But if you’re deprived of that freedom for the rest of your living days until God decides to take you, you know, that is tough, my friend, and I think that plenty of people think that.

Now, I don’t think it is right to have a criminal justice system that kills innocent people. Over 100 people have been released from death row in America in the last year with DNA evidence and other evidence showing they didn’t commit the crime for which they had been committed, some of them in jail for 10, 15 years for a crime they didn’t commit.

MR. RUSSERT: So you would have a moratorium on the death penalty until there’s further research.

SEN. KERRY: I’ve said that previously. I think we need to look at it. But more importantly, Tim, that’s not affected at the federal level. That’s not where the crime of this country is fought. It’s fought state for state by state prosecutors. That’s where it’s done. And I would honor, obviously, the laws of those states and that’s the way we should proceed. But far more importantly, are we going to do the things in this country...

MR. RUSSERT: So if a state had a death penalty, you would respect it?

SEN. KERRY: Of course. You have to respect the law. The law of the land is the law of the land, but I have also said that I am for the death penalty for terrorists because terrorists have declared war on your country. And just as I, in a war, was prepared to kill in defense of my nation, I also believe that you
eliminate the enemy and I have said publicly that I support that.

MR. RUSSERT: So you would have an exception in your moral opposition for terrorists?

SEN. KERRY: That is correct. It’s not moral. I have said that I object to it on the basis of the way it’s applied and the way that it’s not the toughest punishment, but I do believe with respect to terrorists, that is correct.

Other Kerry news:

In Cleveland Tuesday, Kerry came right out and said it: Bush is using Iraq as a distraction from the nation's economic problems.

"Lethal Indifference: The Fatal Combination of Incompetent Attorneys and Unaccountable Courts in Texas Death Penalty Appeals" is a comprehensive study of the quality of representation afforded to death row inmates in the state post-conviction process. Not surprisingly, as the New York Times reports, the study finds "Death row inmates in Texas are often assigned incompetent or unqualified state appellate lawyers who do not raise legitimate constitutional arguments and who fail to unearth facts that could prove the innocence of their clients."

"The overall message of the study is that our post-conviction system is broken in Texas," said Jim Marcus, executive director of Texas Defender Service and an author of the report. "Our system is so unreliable that innocent people or people with serious constitutional questions in their case are going to be executed without any real review."

The study also finds fault with the Texas Court of Criminal Appeals, the state's highest criminal court. "It accused the court of often appointing unqualified and inexperienced lawyers to handle state habeas appeals, noting that one lawyer still listed by the court as approved is dead. The study also criticized the court as being indifferent when presented with persuasive evidence that an inmate was being poorly represented."

While declining formal comment, a spokesman for the Court had this to say: "We've seen these criticisms before."

LA Police Chief William Bratton has a new strategy for fighting the city's gangs: Calling in the Feds.

Bratton will ask the U.S. Attorney in Los Angeles to charge gang members with tax and racketeering offenses, a tactic, he said, that met with success against the Mob.

We've noticed the police department has a whole new jargon under Bratton:

"The initiative will not mean mass arrests, but targeted policing, said Assistant Chief Jim McDonnell."

"We don't want to come out like we did in the '80s," McDonnell said, referring to "occupying army" tactics favored by former chiefs. "We're planning a holistic, collaborative approach to the problem."

One local minister in South Central LA who works with gang members is not buying the new strategy:

"You're going to fill up the jail up with them again," said Rev. Nathan Holt, who operates the Love and Respect Youth Organization. "Shouldn't there be some training programs or something else?"

Our initial thoughts: The gang problem in LA is out of control. Bratton is committed to reducing crime in LA. His pattern has been the "broken window" system of policing--arresting people for little things to clean up the streetss and get useful information on bigger crimes and criminals.

He has not been a whosale violator of civil rights in the past, although we did have a problem with the targeted arrests of the squeegie operators and the subway turnstile jumpers.

The violence needs to end in LA. Jail terms for petty crimes and even tax evasion are far less than those for crack and murder. We'd rather see gang members receive shorter sentences for lesser crimes so they don't lose their hope for a future. And we think on the whole, you get a better shot at a fair trial in federal court than state court, which is where tax offenses and racketeering cases are tried.

We remain behind Bratton. But we'll keep watching and reporting as well.

The prosecutor in the Winona Ryder shoplifting trial recommends drug and psychiatric counseling along with restitution and community service for Winona Ryder, convicted last month of shoplifting at Saks in Beverly Hills.

The People filed their sentencing memorandum Monday, you can read the whole thing at Smoking Gun, which summarizes the DA's recommendations as a request for the Judge "to order the actress to serve 480 hours of community service and to cease using aliases, specifically the handle "Emily Thompson." When the 31-year-old actress was arrested last December for shoplifting, Beverly Hills cops found Ryder carrying a remarkable array of painkillers (liquid Demerol, Percodan, Vicodin, Morphine Sulfate, etc.), some of which were prescribed to the Thompson alias. Prosecutors also want Ryder sentenced to a provision that would allow law enforcement officers to search "her person and property" at any time, "with or without a warrant or probable cause."

Sentencing is set for Friday. With the DA not seeking jail, the hearing will likely focus on conditions of probation.

Instapundit has the latest developments in the Racine Rave Prosecution.

Some corrections are in order to our guest blog on Altercation today, submitted from Shanghai.

First, in saving the html version of what we wrote to Word, so we could send it as an attachment to MSNBC, our computer (not MSNBC's, they are blameless) changed some dashes to underlines in the urls to two of the linked-to articles, and as a result those hot-links don't work.

Here is the correct link to the news story about China's about-face on AIDS .

And here is the correct link to the article, High Court To Review Race-Based Admissions

As to the Supreme Court review of the Texas sodomy law case, thanks to PG and KevDC for pointing out that the Supreme Court Monday agreed to hear the case (we incorrectly stated that arguments were held Monday)--and that Lawrence v. Texas is the name of the Texas case the Court agreed to hear Monday, not the name of the 1986 case previously decided by the court in a split ruling(we botched that one in our editing.)

So much for blogging from China before dawn and editing on airplanes....our apologies to all. We'll try to do better tomorrow when we are again filling in for Eric, this time from Denver.

Also, thanks to Instapundit for his warm compliment on our Altercation guest blog today (even though he, too, noticed our error but was kind enough not to mention it.) Instapundit thinks the Texas sodomy law is dumb and backs it up with a law review article he and Dave Koppel wrote in 2000 on state police powers in general with a particular focus on sodomy laws.

The article has many worth-reading quotes from actual cases striking down sodomy laws. Such as:

"The individual's right to freely exercise his or her liberty is not dependent upon whether the majority believes such exercise to be moral, dishonorable, or wrong. Simply because something is beyond the pale of "majoritarian morality" does not place it beyond the scope of constitutional protection. To allow the moral indignation of a majority (or, even worse, a loud and/or radical minority) to justify criminalizing private consensual conduct would be a strike against freedoms paid for and preserved by our forefathers. Majority opinion should never dictate a free society's willingness to battle for the protection of its citizens' liberties. To allow such a thing would, in and of itself, be an immoral and insulting affront to our constitutional democracy." Powell v. State, 510 S.E.2d 18, 27 (Ga. 1998) and

"Simply because the majority, speaking through the General Assembly, finds one type of extramarital intercourse more offensive than another, does not provide a rational basis for criminalizing the sexual preference of homosexuals." Commonwealth v. Wasson, 842 S.W.2d at 502 (Kentucky) and

"The usual justification for laws against such conduct is that, even though it does not injure any identifiable victim, it contributes to moral deterioration of society. One need not endorse wholesale repeal of all "victimless" crimes in order to recognize that legislating penal sanctions solely to maintain widely held concepts of morality and aesthetics is a costly enterprise. It sacrifices personal liberty, not because the actor's conduct results in harm to another citizen but only because it is inconsistent with the majoritarian notion of acceptable behavior." Wasson at 498.

Eric Alterman of MSNBC's Altercation has graciously asked us to fill in for him on Tuesday. Of course, we're delighted to do it. We're also flying home from China on Tuesday so this should be no small feat, but we're determined to make the column a worthy one. Since in one hour it will be Tuesday here (13 hours ahead of New York, 16 ahead of California) we're going to forego more posting on TalkLeft until we're back home.

China may be the most service-people friendly country we've ever been in. From the airport pickup which consists of a driver and a hotel staff person waiting at baggage claim to drive us to the hotel in a brand new Audi, to the reception people who showed us three rooms at check-in and gave us our choice, to the staff at the executive lounge who provide three meals a day and cocktails gratis along with big screen tv's tuned to CNN and every important newspaper and magazine we can think of, to the three 20-something year olds who just spent an hour in our room at 10 at night because the hotel's broadband server went down and they wanted to make sure we knew how to get dialup access in the interim--even though they don't speak English and we can't speak a word of Chinese--we are duly impressed.

Shanghai is rolling out every stop to get the 2010 World Expo--the papers here report that all the citizens, from the elderly to the working class to the college kids are in favor of it. It truly is a city of the future and wants badly to compete in every sense with New York, London and Hong Kong. In our book it already does. Business and the economy here are robust and China tends to build things with an eye towards what will be needed ten years from now. The streets are safe and so is the drinking water--parks are filled in the early morning with people doing T'ai Chi--the art museum is world class, Placido Domingo played here last night with two other famous tenors...we're even more impressed with Shanghai than we were last year on our first trip.

Thanks to Lisa English of Ruminate This for spreading the word on our take of the China AIDS epidemic--we have been a big follower of Lisa's since she began Ruminate This--she always has a new take on the topic of the day, and her writing ability is second to none in our opinion.

We'll be back here Tuesday night or Wednesday morning, and don't forget to check out Altercation Tuesday.

ABC News reports that Mass. Democrat John Kerry will seek the Presidential nomination in 2004:

"Massachusetts Democrat John Kerry, a leading Senate liberal and decorated gunboat officer during the Vietnam War, said Sunday he is taking a first step toward running for president in 2004: He took aim at President Bush's policies on taxes, education, Iraq and the Middle East, saying, "There is a better choice for this nation."

"I'm going to file this week an exploratory committee, a formal committee, and I'm going to begin the process of organizing a national campaign," Kerry said on NBC's "Meet the Press."

Kerry also said that an official announcement is months away.

Any word from Howard Dean yet?

A group of retired state and federal judges is urging clemency for Illinois's death row inmates "whose conviction was tainted by flaws in the state's capital punishment system."

"Individually, however, some justices said the system is so riddled with problems that the governor should grant blanket clemency."

"The only way to be fair, the only way to be just, the only way to be equal is for the governor to change the death sentences ... to life without the possibility of," said R. Eugene Pincham, a former state appellate judge."

"Retired state appellate Judge Anthony Scariano said that while there must be changes in the law to protect defendants in the future, "clemency is the proper way to address the problems of the past."

Outgoing Illinois Governor George Ryan has the matter under consideration. He has said he doubts he will grant blanket commutations, but will consider each case individually.

We support clemency for all current death row inmates. For background on the Illinois clemency issue, see our prior post here.

We are glad to see the coverage World AIDS Day has received.

It has been very organized in China. The main ceremonies were in Beijing, but there was also a large one here in Shanghai, on the main downtown shopping thoroughfare of Nanjing Road. Nanjing Road is six miles of stores, the last mile of which leads almost to the Bund and is a pedestrian mall paved with marble, lit up at night, vehicle free and very popular. It was along this mile that the ceremony was held--we watched the set-up, and saw hundreds of older teens in white medical-type coats with little red ribbons on their lapels wearing red hats or white visors saying World Aids Day as they were preparing for the event. There were registration tables set up all around to dispense information, and a stage had been erected, the size used for a rock concert, with huge speakers and tons of red lanterns. Hundreds of black folding chairs were set out.

As we mentioned, the main ceremony was in Beijing, at the Great Hall of the People. For the first time ever in China, which has been in denial about its HIV and AIDS problem, an HIV carrier spoke before a crowd of top health officials, experts and students. His message was "We want to love and be loved."

The theme of the international campaign this year, which is to promote awareness, to educate the populace about AIDS and prevention, and to reduce the stigma associated with it, thereby encouraging those affected to seek treatment, is "Live and Let Live." The campaign will last a month.

There are now over one million AIDS/HIV patients in China. The number is expected to increase to 10 million by 2010. The primary cause of AIDS in China is dirty needles.

Former President Bill Clinton has an op-ed in today's New York Times: AIDS Is Not a Death Sentence.

"Historians will look back on our time and see that our civilization spends many millions of dollars educating people about the scourge of H.I.V. and AIDS, which has already taken 25 million lives and could infect 100 million people over the next eight years. But what they will find not so civilized is our failure to treat 95 percent of people with the disease."

"Given that medicine can turn AIDS from a death sentence into a chronic illness and reduce mother-to-child transmission, our withholding of treatment will appear to future historians as medieval, like bloodletting."