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. "

Update:

In an opinion released today, the 8th Circuit Court of Appeals has held that that the federal District Court in Minnesota erred in suppressing e-mails seized by Yahoo! technicians from the company's California-based servers pursuant to a Minnesota state court warrant. The Appeals court held that the search was reasonable even though no police officers were present at the time the technicians executed the faxed warrant. The case is 11/18/02 USA v. Dale Robert Bach.

The F.B.I. questioned a 38 year old Malaysian man with a U.S. degree in biochemistry yesterday inside a Malaysian detention camp.

The man is Yazid Sufaat, a Malaysian businessman and former army captain. The camp is in northern Malaysia, which is holding over 65 suspected Muslim militants detained by authorities. Sufaat is suspected of providing employment documents to Zacarias Moussaoui so he could get a U.S. Visa and providing lodging in Kuala Lumpur to two of the alleged 9/11 hijackers.

"Yazid was first spotted by police in January 2000 meeting al-Midhar and al-Hazmi, and is said to have met with Moussaoui in September and October that year. The information was shared with U.S. security agencies at that time. He was finally picked up in December last year while returning to Malaysia via Thailand from Afghanistan. He is being held at Kamunting detention camp under the Internal Security Act, which allows detention without trial. He denies any wrongdoing."

Here's what we're curious about. Sufaat had a lawer at the camp while the FBI questioned him who was either present during the questioning or briefed about it after. Why aren't Hamdi and Padilla and Binalshibh accorded the same right to counsel?

``They're done, that's the end of it,'' Yazid's lawyer told reporters as he drove out of the camp after the FBI had completed questioning his client. ``Basically, they wanted to know how he knew Moussaoui,'' the lawyer Saiful Izham Ramli said, referring to a man set for trial in the United States for conspiracy in the September 11 attacks."

[comments now closed]

Walter in Denver, a dedicated libertarian, picks up on our post about Ashcroft's new drug and gun prosecution policies and says:

"There's been much debate lately ... about the Libertarian Party's effect on Republican election results in the past election. The assumption made by some is that LP votes would go to the GOP if there were no LP candidate on the ballot. That may be true in some rare cases, including the South Dakota senate race, but LP voters that I know, and I know lots, made a careful and reasoned decision when they left the GOP. That's assuming they ever were with the Republicans, many were Democrats or split ticket voters before they saw the light. Most of us are painfully aware that voting GOP is voting for stuff like this: (found at TalkLeft) ....This sort of thing (and many other reasons) is why LP members take delight in voting against Republicans, and even try to spoil Republican results. As long as partisan Republicans are blind to this there will be no winning over LP voters."

Cambridge, MA…….The Civil Rights Project at Harvard University (CRP) is launching its new website today. We just perused it--it has a great look and some valuable resources. We'll be adding it to the crime policy page of TalkLeft.

"CRP will utilize this new website to help strengthen our network of researchers, lawyers, advocates, educators, and journalists who share our commitment to social justice. The new site improves our ability to disseminate research, alerts, event information, and civil rights news and updates quickly and more broadly to our partners, journalists, and the general public."

The Bush Administrations's plans for military tribunals are nearing completion.

Supposedly only a small number of the 625 detainees at Guantanamo Bay, Cuba, and the 100 or so being held in a U.S. military compound in Bagram, Afghanistan, will be tried by tribunals. Plans call for the tribunals to be held outside the U.S. No information has been released on which detainees will be tried first. The President will have to identify those to be tried by tribunal by name.

Justice Department officials say they do not intend to remove Moussaoui from the federal court system in favor of a trial by tribunal. They are concerned that Moussaoui would challenge a move on the grounds that the tribunals don't apply to people inside the U.S. Such a claim could subject the tribunal process to a constitutional challenge, which clearly the Bush administration prefers to avoid.

"The tribunals would be held amid extremely tight security, U.S. officials said, with some witnesses possibly testifying from remote locations or with electronically altered voices. Defendants will have the right to see evidence against them, unless it is classified, and will be given military counsel. A two-thirds majority of judges is required for conviction, but a unanimous vote is needed to impose the death penalty."

"Pentagon attorneys are in "the process of identifying potential key personnel" for the military commissions, according to a senior defense official. The official would not specify which personnel are being screened, but the military must select judges, prosecutors and defense attorneys before a tribunal can be held."

Bush signed an executive order last November authorizing the tribunals. A first draft of the regulations governing the proceedings was published by Defense Secretary Donald H. Rumsfeld last March.

"The tribunals would be held amid extremely tight security, U.S. officials said, with some witnesses possibly testifying from remote locations or with electronically altered voices. Defendants will have the right to see evidence against them, unless it is classified, and will be given military counsel. A two-thirds majority of judges is required for conviction, but a unanimous vote is needed to impose the death penalty."

The selection of judges, prosecutors and defense attorneys will be done by the military. A senior Bush official told the Washington Post that " the screening should not be taken to reflect a decision to proceed with the military commissions, but said it is necessary for the Pentagon to be in position to move ahead should the president decide to do so."

"Pentagon lawyers are also drafting final implementing regulations needed to initiate the military tribunals. Officials in the Pentagon general counsel's office said they are completing work on specific charges that could be lodged against defendants. U.S. officials have said previously that the charges would include violations of the laws of war and possibly other offenses."

The timing is believed to be reflective of the military's success with obtaining information from four individuals in particular:

Abu Zubaida, the alleged high-ranking al Qaeda leader whose information led to the arrest of Jose Padilla in Chicago, and who authorities suspect was scouting locations in the U.S. for a dirty bomb attack;

Omar al-Farouq, "the alleged Southeast Asia facilitator for al Qaeda, and Muhammad Darbi, an alleged member of a Yemeni cell";

Muhammad Darbi, an alleged member of a Yemeni cell; and

Ramzi Binlashibh, who was captured in Pakistan after acknowledging his participation as a planner of the Sept. 11, 2001, attacks in an interview with the al-Jazeera television station a few months ago.

The military says all of the above have provided information on other leaders and members in Al Qaeda. Apparently they believe the information obtained from these detainees is credible enough to rely upon for purposes of obtaining a conviction in a military prosecution.

Nameless Juries Are on the Rise in Crime Cases according to the New York Times.

Prosecutors and the courts favor the practice, claiming it protects jurors from reprisals and from being hounded by the media.

Defense lawyers and civil libertarians oppose it, arguing it erodes the presumption of innocence and makes juries less accountable.

At first, anonymous juries were used in high profile trials like those of the Branch Davidians, the cops in the Rodney King and Abner Louima cases, Oliver North, John Gotti and other mob cases and the 1993 World Trade Center bombings.

Now they are being used in more routine cases. Most courts uphold the practice. But as a federal appeals court in Atlanta noted, "An anonymous jury raises the specter that the defendant is a dangerous person from whom jurors must be protected, thereby implicating the defendant's constitutional right to a presumption of innocence."

Fordham Law School Professor Abraham Abramovsky says "The right place to draw the line is that unless you have reasonable grounds to show the court that tampering has happened in the particular case or that the defendant has a rich history of tampering, there should never be an anonymous jury."

The media dislikes the practice because "it makes it harder to question jurors about how and why they arrived at their decisions."

The New York Times rips Admiral John Poindexter's Total Information Awareness program in an editorial Monday titled A Snooper's Dream.

The program, invented by John Poindexter, a rear admiral with a less than sterling record, would create a huge national database of all our personal records, from banking to credit card purchases and more. Poindexter justifies the program as a national security enhancement. The Times nails it for what is is: an assault on civil liberties.

"Total Information Awareness (T.I.A.) aims to use the vast networking powers of the computer to "mine" huge amounts of information about people and thus help investigative agencies identify potential terrorists and anticipate terrorist activities. All the transactions of everyday life -- credit card purchases, travel and telephone records, even Internet traffic like e-mail -- would be grist for the electronic mill."

"To civil libertarians, T.I.A., with its Orwellian dossiers on each and every American, would constitute a huge invasion of privacy. Mr. Poindexter says he has no wish to trample on the Fourth Amendment, and that the technology can be designed so as to "preserve rights and protect people's privacy while helping to make us all safer." His associates say that his main role is to develop the technology, not the policy that governs its use."

"This strikes us as disingenuous. Mr. Poindexter is a policy man to the core. Besides, there are enough federal agencies already engaged in the "mining" of information about all of us. The last thing we need is a vast new system of domestic surveillance engineered by John Poindexter."

"Congress should shut down the program pending a thorough investigation. It could do this with an amendment denying further financing that could be attached to an appropriations bill or the homeland security bill now under discussion in the Senate. Either way, T.I.A. needs immediate oversight."

You can read what the military says about T.I.A. on its website here.

More to the point and far less obtuse is the ACLU's statement here.