"The White House is weighing a proposal to abandon the Justice Department's prosecution of Zacarias Moussaoui in a federal court, remove him from the United States and place him before a military tribunal in Guantánamo Bay, Cuba, administration officials say."

"They said the proposal to shut down the civilian prosecution of Mr. Moussaoui, the only person charged in an American court with involvement in the Sept. 11 attacks, reflected a growing fear in the government that legal problems faced by the Justice Department in pursuing the case might be insurmountable."

This is another end-run around justice. The White House and the Pentagon are making up the rules as they go along. They are afraid, as we predicted they would be months ago, that they will have to make Ramzi bin al-Shibh, arrested in Pakistan months ago and held in secret detention ever since, available to Moussaoui to interview. Moussaoui's Indictment is replete with references to bin al-Shibh as a planner of the Sept. 11 attacks. He could have critical information that would show Moussoui was not involved in the September 11 attacks. While Moussoui has admitted in Court that he is a member of Al Qaeda, he has insisted from the beginning that he had nothing to do with the attacks. We think the information revealed to date supports his position.

Rumsfeld and the military think it would be better to drop the federal action, move Moussaoui to Guantanamo Bay, Cuba, and try him under Bush's proposed military tribunal rules. Moussaoui, as a non-U.S. citizen, may be subject to such proceedings.

We believe the Moussaoui case has been mishandled since the beginning. As Seymour Hersh posited in an excellent New Yorker article back in September, Moussaoui should have been treated as a witness, not a defendant.

We stated then and continue to believe that:

"... what if the Government has to choose between Moussaoui and Binalshibh? Binalshibh seems to be far more critical to the Government in terms of his being able to supply information about the attacks. Moussaoui has been nothing but a thorn in the Government's side since his case started."

"Maybe a compromise could be worked out where the Government drops the death penalty request against Moussaoui if Moussaoui pleads and agrees to a life sentence thereby avoiding the need to call Binalshibh at all."

"Whatever happens, it should occur publicly. The Government should not be allowed to hide behind a veil of secrecy in this case as it has with Padilla and Hamdi and the other detainees."

Back to today's New York Times article:

The Pentagon and the C.I.A. prefer to keep suspected terrorists in isolation and subject to interrogation, without access to defense counsel.

"Civilian and military lawyers said it was unclear whether the court-appointed lawyers assigned to advise Mr. Moussaoui would be able to prevent the administration from moving him to Cuba."

"A decision to abandon the Justice Department's case could create a predicament for Mr. Moussaoui's court-appointed civilian lawyers, who would have to decide whether they had any standing to continue to represent him and whether they wanted to try to keep him from being transferred to military custody."

"Criminal defense lawyers not associated with the case suggested that the court-appointed defense team might try to press Judge Brinkema to block Mr. Moussaoui's transfer until the federal courts decided the constitutionality of the government's use of the "enemy combatant" designation for Qaeda figures."

"The issue has been the subject of a variety of court challenges since Sept. 11, most prominently in a case involving the Justice Department's efforts to deny a lawyer to Yasser Esam Hamdi, an American-born Saudi who was captured on the battlefield in Afghanistan and is being held incommunicado in a Navy brig in Virginia."

Frank Durnham, the Federal Defender in Virginia who serves as one of Moussoui's standby counsel, said the dismissal of the federal case will be a win for Moussaoui and that there may be nothing the defense can do to thrwart the move from federal court to military tribunal. We don't see how it could be a "win" if the result is that Moussoui will be tried in a tribunal with far fewer rights than those accorded in a federal court trial.

Meanwhile, Moussaoui's mental health is again at issue. His mother is pressing for a new psychiatric examination. "Every time I see him, he is deteriorating — getting worse and worse," Mrs. el-Wafi said, speaking through an interpreter. "He can't think rationally. He doesn't talk rationally. He keeps saying, `I am going to be out very soon.' "

Instapundit doesn't think much of Cass Sunstein's op-ed piece on Bush's renewed vigor to fill the federal courts with conservative judicial activists. I thought Sunstein's article was uninspired, at best.

I do agree with Sunstein that conservative judicial activists extremists pose a threat to the Constitution because the Constitution is a living and breathing document which can be viewed as ambiguous or open to interpretation in some instances. Stacking the courts with judicial activists extremists will provide some judges with too much power to impose their views of what the Constitution means.

Far better reading is today's New York Times Editorial, Defending the Judiciary, which is not only more on target than Sunstein, but offers some solutions as well.

We are pleased to see the New York Times in an editorial today, Justice, Hollywood Style, adopt our long held position on the Winona Ryder trial:

"Anywhere else, this petty crime by a first-time offender would have quickly ended with a plea bargain. The prosecutors, of course, made high-minded statements about the need to prove no one is above the law. But the truth is that in the great Hollywood tradition, this clunky script was green-lighted simply because a big star's name was attached."

We hope the Times is right in concluding:

"Ms. Ryder, who is not expected to do jail time, could benefit most of all. Although some producers may steer clear of a convicted felon, the trial could well revive a slumping career. "The town is behind her," one casting agent told USA Today after the verdict came in. "She's even more sought-after now." Which gives Ms. Ryder's tale the most essential Hollywood quality of all: a happy ending."

Update: We also found these interesting biographical details about Ms. Ryder in Sunday's Sydney Morning Herald of all places, in article aptly called Winona Steals The Show But Poor Dad Leon Does The Time by Duncan Campbell, reporting from Beverly Hills.

"Ryder has always been an unconventional soul. Born Winona Horowitz near Winona, Minnesota, she is the daughter of the archivist to Timothy Leary, the writer and LSD exponent who was also her godfather. Allen Ginsberg was a family friend. She was studying acting by 11 and did her first film at 15. She picked up Oscar nominations for both The Age of Innocence in 1993 and Little Women the following year. "

Mr. Duncan compares Ms. Ryder's likely shoplifting penalty to that received by Leonardo Andrade in California. Andrade, whose case is up for review by the Supreme Court, received 50 years for stealing $153 in videotapes for his children to watch. It's no wonder the civilized war looks at our penalty structure with utter bewilderment--on everything from petty shoplifting to the death penalty for juvenile offenders and the mentally ill, to jailing drug possessors, we have catupulted our justice system into the realms of outer space.

Gail Davis expands on our comment about Ashcroft's choice of Virginia as the venue for the first trial of the accused snipers, "This is not how the American justice system is supposed to work":

"Yes it is. This is the Bush and Ashcroft version of justice. They decide guilt and punishment. They use psychological torture. Constitutional protections are just an inconvenience to be gotten around. "

"The Supreme Court may have put Bush in office, but the 2002 election results will have convinced Bush et al that their view of the world has been unanimously confirmed. "

"This is it, ladies and gentlemen. Hope you like what you have wrought. Hope you are right in your faith that you would never be picked out by the police as a suspect for something you didn't do. Interminable interrogations. Light burning 24 hours in your little cell. Judges who delay you access to a lawyer. Enjoy!"

Eric over at The Hamster lives in Hawaii and offers his thoughts on the newly elected Governor Linda Lingle, including this:

"What makes me think she'll be moderate is her past record and her knowledge of Hawaii. She knows Hawaii is a Democratic state and will never be a Republican stronghold so she'll concede a lot to Democratic positions in order to make ground (she did that when she was mayor of Maui), so I don't foresee a huge difference in governing. Lingle's election isn't a black eye at all for the Hawaii Democratic Party since they already had two black eyes going into the election."

And a big thanks to Eric who in the same post linked to TalkLeft and referred to us as "the Left's leading legal blog."

We've been reading and linking to Hamster every day since it was a news service in its pre-blog days and are very glad, but not surprised, to see it has become such a leading progressive voice.

Here is the latest on the interrogation of 17 year-old accused sniper John Malvo from the Washington Post:

"Yesterday's hearings were brief and largely procedural but set off the legal sparring that probably will continue for months as the prosecutions begin in one of the highest-profile crimes the Washington area has seen."

"Lawyer Todd G. Petit, who was appointed Malvo's guardian ad litem, a standard process for a juvenile whose parents are not available, said he was denied access to the teenager. Ninety minutes after he was named guardian, Petit said, he learned that Malvo was being interrogated at police headquarters."

"I told the officer I wanted all questioning to stop," Petit said. A police commander came down, took Petit's card and said he would relay the request "when I see them," Petit said, and ordered him out of the building."

"Petit said he went to Horan's office but was told that Horan was in a meeting and that the office was closed." "I asked to speak to my ward, and they refused to let me do so," Petit said."

Legal experts are already predicting trouble for the prosecution in relying upon Virginia's terrorism law to avoid their having to prove the identity of the triggerman in each murder.

Our opinion, which we expect to provide on Fox News Channel today around 5:30 pm eastern time, is that this is forum shopping at its worst and Virginia may not be the "safe haven" for the death penalty the Justice Department expects it to be.

The prosecution, law enforcement and the Justice Department, aided by the media, are leaking purported factual evidence like a sieve. It will become impossible to seat a fair jury in Virginia or Maryland.

We were heartened to see that the Judge did not wait until next Weds. to appoint counsel for Muhammed, as had previously been reported. But both he and Malvo should have been able to meet with their new counsel immediately upon arriving at the jail in Virginia.

Instapundit updates our Rave post yesterday with news that a Judge in Traverse City, Michigan is on leave after being observed smoking a joint at a Rolling Stones concert.

This is a good illustration of why, overwhelmingly, it is pro-prosecution, pro-law enforcement type lawyers who apply to be judges.

So many defense lawyers are loathe to put themselves under the glare of the public spotlight. This is not to say that all defense lawyers smoke or have smoked pot. Just that they are more likely to have lived a part of their life on the edge, and don't need the aggravation or humiliation of having it come to the public's attention.

It is beyond shameful that this country can't progress to a point where suitability for public office, including judgeships, is determined upon the basis of knowledge and skills, combined with a desire to contribute to the public good, rather than personal moral traits and actions that are so inconsequential in the grand scheme of things.

Eric Alterman's new column in the Nation is Bush Lies, Media Swallows. He asks you to ask yourselves, "who is being served when the media allow Bush to lie, repeatedly, with impunity, in order to take the nation into war?" As examples of Bush's lies, Eric points to these:

"Most particularly he has consistently lied about Iraq's nuclear capabilities as well as its missile-delivery capabilities. .... To cite just two particularly egregious examples, Bush tried to frighten Americans by claiming that Iraq possesses a fleet of unmanned aircraft that could be used "for missions targeting the United States." Previously he insisted that a report by the International Atomic Energy Agency revealed the Iraqis to be "six months away from developing a weapon." Both of these statements are false, but they are working. Nearly three-quarters of Americans surveyed think that Saddam is currently helping Al Qaeda; 71 percent think it is likely he was personally involved in the 9/11 attacks."

European Anti - War protestors streamed through Florence earlier today.

"More than 450,000 anti-war protesters from across Europe marched through this Italian Renaissance city on Saturday, denouncing any U.S. plans to attack Iraq."

"Fired with anti-American sentiment and angered by a tough new U.N. resolution to disarm Iraq, European activists joined forces in a carnival atmosphere and marched together singing Communist anthems and blowing shrill whistles. ``Take your war and go to hell,'' one of the colorful banners read. ``No to war,'' said another."

"The rally marked the climax of the first European Social Forum, which brought together anti-globalisation campaigners from across the continent for four days of talks and concerts."

"Authorities estimated more than 450,000 protesters were on the streets, and people were still streaming in from a fleet of buses and trains hired for the occasion. Organizers said the crowd could swell to more than a million people, making it one of the biggest rallies ever seen in Italy."

``The atmosphere here is wonderful. Absolutely perfect. It shows that a new young left is emerging,'' said Stavos Valsamis, a 27-year-old Greek activist from Athens."

We hope so.

We were on our daily rounds, reading Atrios, when we saw his link to Eric Alterman's new book What Liberal Media? due to be published in February, 2003. We followed the link to Amazon, and learned that:

"Customers who shopped for this item also wear:
Clean Underwear from Amazon's Eddie Bauer Store
Ladybug Rain Boots from Amazon's Nordstrom Store
Suede Headwraps from Amazon's International Male Store
Cheetah Print Slippers from Amazon's Old Navy Store"

The Department of Justice authorization procedures for seeking the death penalty in any case are set forth in section 9-10.000 of the United States Attorney's Manual.

"Promulgated in early 1995, the Department of Justice Death Penalty Guidelines and Procedures are intended to set forth the criteria to be utilized by local United States Attorneys and the DOJ in deciding whether to seek the imposition of the death penalty under federal law. The procedures also outline certain procedural steps to which United States Attorneys and Main Justice are supposed to adhere in considering death penalty authorization requests."

"The following is a summary of the Department of Justice policy and procedures in all federal cases in which a defendant is charged with an offense subject to the death penalty, regardless of whether the United States Attorney intends to request authorization to seek the death penalty." [Source, An Overview of the Federal Death Penalty Process , by Dick Burr, David Bruck & Kevin McNally]

17 year old sniper suspect John Malvo has a new lawyer, Michael Arif. Mr. Arif Friday stated that Fairfax County police investigators "tried to question Mr. Malvo for seven hours on Thursday night without the presence of any lawyer for him." Obviously, Arif wasn't appointed to represent Malvo until Friday and couldn't have been at the jail Thursday evening to prevent the attempted questioning.

The judge ordered Malvo to be housed in an adult jail pending a decision on whether he will be tried as an adult or a juvenile. This isn't right. You don't throw a juvenile into the adult jail population before he's been ordered transferred to adult court. They should have put Malvo in protective custody for his own safety in the juvenile facility. (Just like they do with cops who get in trouble). Why is Virginia purposefully throwing this teen to the wolves?

The media seems to find something unusual in older suspect John Muhammed's confusion in court Friday about his lawyer or lack thereof. Who wouldn't be confused?

"Mr. Muhammad appeared confused when Judge Herman A. Whisenant Jr. asked whether he wanted the court to appoint counsel."

"I thought I already had counsel," Mr. Muhammad said, referring to a federal public defender in Maryland who had been representing him before Mr. Ashcroft's order that he be transferred to Virginia."

"Judge Whisenant explained that Mr. Muhammad would need a new lawyer to represent him against the charges brought by Virginia."

"I don't know what to say, sir," Mr. Muhammad replied."

Muhammed was sitting in a jail in Maryland, represented by counsel who had told the federal authorities he didn't want to be questioned, as is his right. Without advance notice to Muhammed, the feds abruptly transfer him to Virgina state custody. We strongly suspect his lawyer was not allowed to meet with him before he left and thus could not tell Muhammed the feds had dropped their charges which meant he couldn't continue on as Muhammed's lawyer. It's entirely likely the lawyer wasn't even told of the transfer in custody until after it occurred.

So how is Muhammed supposed to know that by the feds dropping their charges against him, and agreeing to ship him to state custody in Virginia, that he no longer had a lawyer, or that the same lawyer could not represent him in Virginia? Not one of our clients would have known that.

As for him appearing disheveled, we wouldn't be surprised if he didn't get much sleep. Like Malvo, Muhammed was probably subjected to hours of attempted interrogation, without an adequate explanation of what was happening to him. We also wouldn't be surpised if they kept the bright lights on him all night so he couldn't sleep.

"Judge Whisenant said he would appoint a lawyer at a brief hearing next Wednesday." This amazes us. He should have been given a new lawyer immediately. They should have had one waiting to meet him at the Virginia jail when he arrived. The prosecutors knew he was coming. They should have told the judge who should have appointed counsel at that moment. How could they leave a man charged with the most heinous crime of the year in jail for five days without a lawyer?

The cops will be working on Muhammed every day. Even if he says he wants a lawyer, the cops will tell him no, he doesn't get one before Wednesday. They'll leave those lights on him, sleep-deprive him and hope he agrees to talk.

This is not how the American justice system is supposed to work. You don't bring charges based upon which jurisdiction is most likely to kill the offender upon conviction. You don't let suspects sit for days without lawyers. You don't let the Government and state prosecutors leak evidence to the media that should only come out at a trial.

We are not defending the sniper attacks. We find them as abhorrent as everyone else. Whoever committed them needs to be kept away from society. But we need to do it fairly and this isn't the way.