Votelaw has all the current news on the lawsuit brought by the Colorado Democratic party over the counting of ballots in the congressional race between Democrat Mike Feeley and Republican Bob Beauprez. The election is for a seat in the newly created 7th Judicial district in Colorado.

Ed of Votelaw also reports "The Washington Post headline, In Denver Recount, Reaching for a Precedent, incorrectly describes this as a "recount," when it is actually a first count of the provisional ballots. Provisional ballots are those cast by people who are not on the voter list in the precinct. They may cast a provisional ballot, which will be counted only when it is shown that they are eligible."

Feeley says different standards are being used to determine the validity of the provisional ballots in the various counties that make up the new 7th District. The election results were due out today but they will be delayed due to the lawsuit. A court hearing is scheduled for 1:30 pm this afternoon.

Found today over at Cursor

"Tom Petty vents in Rolling Stone about what's wrong with the music industry and why television is worse: "I think watching the TV news is bad for you. It is bad for your physical health and your mental health. The music business looks like innocent schoolboys compared to the TV business."

A new Czech study finds that marijuana use may ease Parkinson's Disease symptoms:

"Nearly half of Parkinson's disease patients who have tried marijuana say the drug helped relieve their symptoms, according to a survey of patients with the degenerative neurological disorder. Dr. Evzin Ruzicka, an attending neurologist at Charles University in Prague in the Czech Republic, reported the findings here at the Movement Disorders Society's Seventh International Congress of Parkinson's Disease and Movement Disorders. Ruzicka is also a consultant at the Prague Movement Disorders Center. "

"Daily marijuana users reported more improvement in their dyskinesias than those using it less often. The investigators speculated that the effect of cannabis on Parkinson's disease symptoms may be due to interaction among cannabis, certain brain receptors that respond to cannabis and endogenous cannabinoids or cannabis-like substances within the body."

A New York Times editorial today entitled A Green Light to Spy nicely makes the case against the FISA Appeals Court ruling allowing expanded wiretapping powers:

"The court's sessions are held in secret, and the government is the only party allowed to appear before it. The members of the court are hand-picked by Chief Justice William Rehnquist. Ignoring the diversity of views on the federal bench, he selected three judges appointed by President Ronald Reagan. The combination of one-sided arguments and one-sided judges hardly instills confidence in the court's decisions."

"More disturbing, though, is the court's substantive decision and the way the Justice Department is interpreting it. The decision gives the government a green light to remove the separation that has long existed between officials conducting surveillance on suspected foreign agents and criminal prosecutors investigating crimes. Attorney General John Ashcroft has announced that he intends to use it to sharply increase the number of domestic wiretaps, and that he will add lawyers at the F.B.I. and at federal prosecutors' offices around the country to hurry the process along."

"The Supreme Court should step in to restore the lower court's ruling, and Congress should redraft its statutes to clear up any confusion about what the law requires. One of the biggest challenges the nation faces is fighting foreign enemies without sacrificing civil liberties at home. Yesterday's ruling failed to rise to that challenge."

We also recommend The United States of Surveillance by the ACLU: "As of today the Attorney General can suspend the ordinary requirements of the Fourth Amendment in order to listen in on phone calls, read e-mails, and conduct secret searches of Americans' homes and offices."

The opinion, available here , is 54 pages long. Excerpts can be read here.

"The Justice Department argued before a federal appeals panel today that disclosing the names of hundreds of people arrested on immigration charges after the September 2001 attacks would help terrorists of Al Qaeda figure out how the government was conducting its antiterrorist campaign."

At issue was U.S. District Court Judge Gladys Kessler's ruling in August that "the minimum requirements of democracy obliged the government to disclose who it arrested." The lawsuit was brought by "a broad coalition of civil liberties groups challenging the government's refusal to release the names of those arrested for immigration violations as part of the terrorism investigation."

You can read Judge Kessler's 45 page opinion here.

Thirty civil rights groups today wrote an open letter to the Senate urging Senators Thomas Daschle (D-SD) and Trent Lott (R-MS) to amend the Homeland Security Act to stop further development of the Total Information Awareness (TIA) program.

The letter says, in part:

"According to DARPA's own documents, TIA will collect and mine vast amounts of information on the American public, including telephone records, bank records, medical records, and educational and travel data. TIA also proposes to connect with a massive system of biometric identification."

"There are no systems of oversight or accountability contemplated in the TIA project. DARPA itself has resisted lawful requests for information about the program pursuant to the Freedom of Information Act."

"Newspapers across the country have blasted the Department of Defense surveillance system. The New York Times said today that "Congress should shut down the program pending a thorough investigation." Earlier the Washington Post wrote, "the defense secretary should appoint an outside committee to oversee it before it proceeds."

For more, check out EPIC's Total Information Awareness Page.

The Ninth Circuit Court of Appeals has rejected a challenge by Guantanamo detainees filed months ago by a coalition of lawyers, professors and clergy on their behalf. The suit argued that the detainees' prolonged detention violated the due process clause of the U.S. Constitution.

The Court ruled the coalition of "needed to have a preexisting relationship with the detainees or show the prisoners had limited mental or physical capacity that rendered them unable to argue their own case."

The full text of the opininion is available here. A member of the coalition said today it may request a rehearing by the full 9th Circuit panel.

Jonathan Turley has written another article that is highly critical of Ashcroft called Junk Justice. which we found via Thinking Things Through. Here's the essence:

"If there is one legal principle that seems to guide Atty. Gen. John Ashcroft, it is this: Possession is nine-tenths of the law. In holding citizens and noncitizens, Ashcroft has claimed unilateral authority to dictate how and where they will be tried and, most important, executed. In the last few weeks, he has taken this control to a new level, defying states and judges who do not conform to his demands for speedy justice."

"....A military tribunal is designed for quick convictions, little appeal and easy executions. It is the convenience store of junk justice: fast service, cheap products, no substantive value. It now seems that who is and who is not subject to summary tribunal justice is up to the shifting inclinations of Ashcroft, which sometimes appear as arbitrary as his choice of breakfast meat."

"Ashcroft has become a walking contradiction, more general than attorney. Whereas his predecessors viewed the justice system as the very thing that defines us as a nation of laws, Ashcroft views justice as merely one means to an end. As he prepares his list for summary judgment and execution, the American justice system will be the first to be dispatched. "

Well said, Jonathan.

Press Release from the National Association of Criminal Defense Lawyers which submitted an Amicus Curiae brief in the FISA case opposing the position of the Justice Department:

NOVEMBER 18, 2002 -- FOR IMMEDIATE RELEASE

FISA court decision follows Justice Department arguments Fourth Amendment analysis shortchanged in foreign intelligence court decision

Washington, D.C.--In response to today's ruling in favor of the Justice Department's proposed further expansion of use of the Foreign Intelligence Surveillance Act, after the court had found multiple abuses by the Justice Department of the previous provisions of the act, Joshua Dratel, co-chair of the Amicus Curiae Committee of the National Association of Criminal Defense Lawyers, issued the following statement:

"Having found that the fox has eaten half the chickens, the court has decided that the fox should have more authority over the chicken coop. The court has abdicated its responsibility of meaningful Fourth Amendment analysis, and rolled back 25 years of precedent as to the proper boundaries between criminal investigation and foreign intelligence surveillance.

"We will continue to analyze the decision with an eye toward exploring all potential avenues for further review."

NACDL's Amicus Brief, authored by Joshua Dratel, is available here.

Eric Alterman has a good call to action up on Altercation today on the Homeland Security Bill. The full text of the bill is available here.

Here is our post on how a last minute addition could bring life in prison to hackers.

The bill may be voted on tomorrow, so call your senators today. For how to do that, check out MoveOn's Homeland Security Bill action alert today.

General Ashcroft must be plenty happy today. The one-sided, secret FISA Appeals court has reversed the lower FISA court's ruling that required separation of the intelligence and crime prosecuting arms of the Justice Department, and stricter requirements on eavesdropping warrants in cases under criminal investigation.

The changes Ashcroft claimed were allowed under the Patriot Act permit wiretaps when collecting information about foreign spies or terrorists is "a significant purpose," rather than "the purpose," of an investigation. The objection to this position is that it allows the government to "use the change as a loophole to employ espionage wiretaps in common criminal investigations."

We explained what the fuss is all about here.

The full opinion is here. The lower court's opinion is here.

We have written a lot on this case and the issues involved. You can read them here, here, here and here

The ACLU also has comprehensive coverage on the issue.

Some good news out of the Supreme Court today. It has agreed to hear a death row case where the issue is ineffective assistance of counsel:

"The Supreme Court broadened its review of the death penalty Monday, agreeing to consider when death row inmates with bad lawyers deserve a second chance."

This is critical because bad lawyering is a chief cause of wrongful convictions. According to the Innocence Project:

"Mirroring prosecutorial misconduct, ineffective or incompetent defense counsel have allowed men and women who might otherwise have been proven innocent at trial to be sent to prison. Failure to investigate, failure to call witnesses, inability to prepare for trial (due to caseload or incompetence), are a few examples of poor lawyering. The shrinking funding and access to resources for public defenders and court appointed attorneys is only exacerbating the problem."

The Innocence Project lists some policy suggestions that would help remedy the problem of bad lawyering:

"Ensuring adequate pay for public defenders and competitive fees for court appointed attorneys would attract competent attorneys to staff these offices and take cases. Public defenders and prosecutors in any given area should receive commensurate pay.

Caseloads for public defenders should never exceed the standards of the National Legal Aid and Defenders Association. If attorneys are forced to proceed with too many cases, ethical complaints should be lodged with the appropriate state bar.

Every jurisdiction should establish standards of adequate defense. The public should be informed and educated about the requirements of an adequate defense. Standards would also provide notice to all defense attorneys of how much work is expected of them.

Federal funds for defense services should be relative to the amount of funding provided to prosecutors' offices in any given jurisdiction. "

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