Senator Robert Byrd of Virginia writes of his opposition to the war on Iraq in an op-ed article in today's New York Times. Here are some portions, but go read the whole thing.

...."I have listened closely to the president. I have questioned the members of his war cabinet. I have searched for that single piece of evidence that would convince me that the president must have in his hands, before the month is out, open-ended Congressional authorization to deliver an unprovoked attack on Iraq. I remain unconvinced. The president's case for an unprovoked attack is circumstantial at best. Saddam Hussein is a threat, but the threat is not so great that we must be stampeded to provide such authority to this president just weeks before an election."

"Why are we being hounded into action on a resolution that turns over to President Bush the Congress's Constitutional power to declare war? This resolution would authorize the president to use the military forces of this nation wherever, whenever and however he determines, and for as long as he determines, if he can somehow make a connection to Iraq. It is a blank check for the president to take whatever action he feels "is necessary and appropriate in order to defend the national security of the United States against the continuing threat posed by Iraq." This broad resolution underwrites, promotes and endorses the unprecedented Bush doctrine of preventive war and pre-emptive strikes — detailed in a recent publication, "National Security Strategy of the United States" — against any nation that the president, and the president alone, determines to be a threat."

...." Congress must not attempt to give away the authority to determine when war is to be declared. We must not allow any president to unleash the dogs of war at his own discretion and for an unlimited period of time."

...."We must not yield to this absurd pressure to act now, 27 days before an election that will determine the entire membership of the House of Representatives and that of a third of the Senate."

Columbia Law Professor Vivian Berger provides some excellent commentary in the National Law Journal on inherent racism in the application of the felony disenfranchisement laws--laws that prohibit felons from voting--long after they have paid their debt to society.

"These laws have a disproportionate impact on minorities -- 1.4 million black men cannot vote. That is a rate of 13 percent -- seven times the national average. A majority of the disenfranchised live in the South: Alabama, Mississippi, Florida, Kentucky, Tennessee and Virginia all bar former prisoners from voting. Some of these states adopted disenfranchisement provisions during Reconstruction in order to evade the 15th Amendment's ban on withholding suffrage from freedmen. (Disenfranchising crimes were carefully selected to disqualify large numbers of blacks.) In Florida and Alabama, the racial effect is greatest; blacks comprise almost 50 percent of the disenfranchised."

"Given the disparate targeting and treatment of blacks by the criminal justice system, felony disenfranchisement adds a second level of insult and injury to minority ex-offenders. It harms individuals and also limits group political power. "

"Recently, several states have repealed or curtailed disenfranchisement provisions, and three bills are pending in Congress that would abolish these voting restrictions in federal elections. Americans should pressure their representatives to pass such laws without delay. "

The Sentencing Project has a lot more information on these laws and the growing movement to end them, as we've written here.

Wednesday was a particularly bad day to be a defendant in America:

Robert Blake was denied bail

Aileen Wuornos was executed in Florida

Malaysia sent one of the Oregon Six back to the U.S. to face charges

John Lennon's killer was again denied

Moussaoui's jail cell was searched and all his trial preparation notes and records are now in disarray.

When we last left Calvin Burdine, the death row inmate who was granted a new trial by the 5th Circuit Court of Appeals because his lawyer slept through his trial, the Judge presiding over his re-trial, Joan Hoffman, finally reversed herself and agreed to continue his trial until March so that his newly appointed lawyer would have more than 90 days to prepare for a case that has lasted 20 years.

For the details, see our prior posts here and here.

But the Judge still would not let Burdine have his choice of counsel at his new trial, that being Robert McGlasson, the Georgia public defender who represented him for the last fifteen years and who was responsible for overturning his conviction.

Judge Hoffman kicked McGlasson off the case even though he is an experienced death penalty litigator because he wasn't on the list of "approved capital defenders" for Harris County, Texas.

So the ACLU filed a lawsuit for Mr. Burdine against Judge Hoffman in federal court to force her to reinstate McGlasson. The federal judge ordered the state court judge into mediation with Burdine's ACLU lawyer.

The mediation was held Tuesday, without success. The parties are at an impasse, and now the federal judge will decide who represents Burdine at his retrial. He will also rule on a motion Judge Hoffman filed to dismiss Burdine's lawsuit, alleging, among other grounds, that indigent defendants aren't entitled to their counsel of choice. Federal Judge David Hittner has scheduled a hearing next week on the case and ordered Judge Hoffman to attend.

We hope Judge Hittner takes the position that the Houston Chronicle did in a recent editorial we quoted in our earlier post:

"Until Thursday, Huffman declined to grant a continuance to allow Burdine's new lawyer, Danalynn Recer, to prepare. The trial is now set for a reasonable March 3, instead of Oct. 7. "

"Judge Huffman's behavior to date exhibits either callous indifference to fairness or the indulgence of personal pique unbecoming of a judge. What would cause Huffman to reason that Burdine, undefended by a sleeping lawyer in his first trial, deserves a weaker than necessary defense at his second? What made her hesitate to grant a reasonable continuance? "

"State District Judge George Godwin, chief administrative judge of criminal district courts in Harris County, accused Burdine's supporters of whining, but there's no shame in decrying injustice. The shame is in ignoring it, as Godwin seemed eager to do. "

"Judge Huffman could easily correct her mistake by appointing McGlasson to assist in Burdine's defense, just as she gave in and granted the defense time to prepare. No state law prohibits Huffman from giving Burdine a fair trial. Duty and the Constitution compel her to give him a fair trial, at least the second time around."

Updated and bumped up from this afternoon:

U.S. Magistrate Judge H. Kenneth Schroeder granted bail to only one of the defendants in the Buffalo Six Terror case.

The Judge granted bail of $600,000 to Sahim Alwan, 29, who cooperated with the FBI and established to the Court's satisfaction that he tried to leave an al Qaeda training camp in Afghanistan after 10 days in the spring of 2001 by pretending to have injured his ankle.

The Judge imposed the strictest conditions on Alwan that we've ever heard of:

He is under house arrest except to go to work; he is subject to around the clock electronic surveillance and his whereabouts will be monitored by satellite using the Global Positioning Satellite System. He is not allowed to use a telephone, computer, pager or fax machine or access email. If his job requires him to use a computer, it can only have work related software on it and the Probation Department will install monitoring equipment on it so that it can track what he does on it.

He has to have two telephone lines in his house, one which he cannot use but will be wiretapped 24/7 by the Government. The other line will not be subject to recording, but have a pen register device attached to it and may only be used by Alwan to phone his lawyer and the Probation department.

Alwan's attorneys are prohibited from relaying any information from third parties to him, without prior approval of the Government attorneys.

Alwan will have to pay the cost of all the monitoring. He will not be eligible for release until he posts either $600,000 in cash or real property worth $600,000 after deducting any encumbrances, and until the Probation Department has installed all the monitoring equipment.

What happens if Alwan can't afford all this? We think the Judge must reconsider and modify the conditions to something he can afford. Having found that Alwan is entitled to be released on bail, 18 USC 3142© provides:

"(2) The judicial officer may not impose a financial condition that results in the pretrial detention of the person.

(3) The judicial officer may at any time amend the order to impose additional or different conditions of release. "

As to the other five defendants, the Judge found ""If the defendants are or have become disciples of al Qaeda and believers in self-destruction as a legitimate means of causing harm to others, there are no conditions that could be imposed that would deter such act."

The Judge also rejected a defense argument that the 1996 law that prohibits providing material support to a terrorist organization was unconstitutional. The Judge disagreed with the Ninth Circuit which ruled the statute unconstitutionally vague and agreed with the Judge in the John Walker Lindh case who found the statute constitutionally valid:

"I accept the reasoning of the District Judge in Lindh and conclude that one can be found to have “provided material support or resources to a foreign terrorist organization” by offering one’s services to said organization and allowing one’s self to be indoctrinated and trained as a “resource” in that organization’s beliefs and activities. Therefore, for purposes of deciding the government’s motion to
detain the defendants herein, I reject the contention of unconstitutionality of the statute put forth by the defendants."

The Oregon defendants may meet with greater success in challenging the law as they are within the 9th Circuit. The Buffalo defendants will have another opportunity to raise this issue in their case before the District Judge assigned to try the case.

Finally, the Judge rejected the defense claim that the statute prohibiting providing material resources to a terrorist organization was not a crime of violence. Again, the Judge quoted the finding by the Judge in the John Walker Lindh case:

"I conclude that 18 U.S.C. § 2339B constitutes a crime of violence. It takes little imagination to conclude that providing material support and resources to a terrorist organization creates a substantial risk that the violent aims of the terrorists will be realized. Violence, therefore, is intrinsic to the crimes with which [the defendants are] charged. United States v. Lindh, 212 F. Supp.2d 541, 580 (E.D.Va. 2002)."

You can read the full text of the Judge's decision here. For a recap of the factual events, CNN has this article.

Our prior posts outlining what the Judge was required to consider in making his decision are here and here. Our recaps of the evidence against the men are here and here.

From the Drug Policy Alliance:

Rep. Lamar Smith (R-TX) has introduced a House version of the RAVE Act (HR 5519). The House Subcommittee on Crime will be considering the bill on Thursday (the 10th). If it passes out of Committee as is, the RAVE Act could become law THIS YEAR, which means federal prosecutors will have the power they need to shut down raves, hemp festivals, hip hop concerts, and other events they don't like. If your Representative is on the House Subcommittee on Crime, please urge him or her to vote against the bill. Call your representative today, then follow up with a fax:

What to Do:

1) Use the list below to see if your Representative is on the Subcommittee on Crime. Not sure who your Representative is? Find out here. If your Representative is on the Subcommittee on Crime call your Representative today and tell him or her to VOTE AGAINST THE RAVE ACT. THE RAVE ACT IS A THREAT TO PUBLIC HEALTH, FREE SPEECH, AND INNOCENT BUSINESS OWNERS.

2) Follow up your phone call with a fax. If your Representative is on the Subcommittee on Crime, fax your Rep (If your Representative is not on the Subcommittee, you will not be able to fax).

3) While our campaign to defeat the RAVE Act and protect musical events, marijuana rallies, and innocent business owners has been very successful, it hasn't been cheap. Please consider giving the Drug Policy Alliance a tax-deductible contribution, so we can continue fighting to defeat the RAVE Act, protect civil liberties and end the war on drugs.

4) Please forward the permalink to this blog post to friends, family, and co-workers. Unless people speak out, the RAVE Act could become law this year.

HOUSE SUBCOMMITTEE ON CRIME MEMBERS

Barr, Bob (R-GA, 7th) (202) 225-2931
Chabot, Steve (R-OH, 1st) (202) 225-2216
Coble, Howard (R-NC, 6th) (202) 225-3065
Delahunt, William (D-MA, 10th) (202) 225-3111
Goodlatte, Bob (R-VA, 6th) (202) 225-5431
Green, Mark (R-WI, 8th) (202) 225-5665
Keller, Ric (R-FL, 8th) (202) 225-2176
Lee, Sheila Jackson (D-TX, 18th) (202) 225-3816
Meehan, Marty (D-Ma, 5th) (202) 225-3411
Schiff, Adam (D-CA, 27th) (202) 225-4176
Scott, Bobby (D-VA, 3rd), Ranking Member (202) 225-8351
Smith, Lamar (R-TX, 21st), Chair (202) 225-4236

For more on the "Rave Act", see our prior posts here and here. For the text of the Act, go here. For Law Professor Glenn Reynold's ( Instapundit's) commentary on the Rave Act at Fox News, go here.

MyDD reports that the medical pot initiative in Arizona is up 53-33 in the polls.

It is Proposition 203 (Marijuana Decriminalization/Medical Marijuana)

Summary: Should the State of Arizona decriminalize the possession of two ounces or less of marijuana, marijuana drug paraphernalia, or two or fewer marijuana plants if the possession is for personal use only? Should the State of Arizona Department of Public Safety be required to provide not more than two ounces of marijuana free of charge to each person who is qualified to use marijuana for medical purposes?

Here is a news article on the initiative via NORML. And the text of the initiative is here.

"After interviewing polygraph experts at the CIA, FBI and other agencies, the panel of the National Academy of Sciences determined that it is possible to fool a lie detector, especially if the subject is being screened for general criminal or spy activity and not for some specific act."

"The academy committee, appointed at the request of the Department of Energy, decided that polygraphs cannot be relied on for mass screening of federal employees because they can falsely suggest an honest employee is lying and can be fooled by someone who is trained to do so."

"The report noted that sometimes a person appears to be lying on a polygraph when in fact he or she is anxious -- especially if that person is from a "socially stigmatized" group."

For more on the inaccuracies of polygraghs, visit Antipolygraph.org where you will learn that polygraph "testing" is:

Theoretically unsound and is not a valid diagnostic technique.

Entirely dependent on the polygrapher lying to and deceiving the examinee.

Biased against the truthful, resulting in many honest and law-abiding people being falsely accused each year.

Easily beaten.

Officials in the Bush Administration apparently are not all on the same page when it comes to attacking Iraq--Some are expressing misgivings.

"While President Bush marshals congressional and international support for invading Iraq, a growing number of military officers, intelligence professionals and diplomats in his own government privately have deep misgivings about the administration's double-time march toward war."

"These officials charge that administration hawks have exaggerated evidence of the threat that Iraqi leader Saddam Hussein poses -- including distorting his links to the al-Qaida terrorist network -- have overstated the amount of international support for attacking Iraq and have downplayed the potential repercussions of a new war in the Middle East."

"They charge that the administration squelches dissenting views and that intelligence analysts are under intense pressure to produce reports supporting the White House's argument that Saddam poses such an immediate threat to the United States that pre-emptive military action is necessary."

The UPI reports that one of the two Oregon terror suspects still at large has been arrested in Malaysia.

Ahmed Ibrahim Bilal, age 24 and a student at the International Islamic University in Kuala Lumpur, surrendered to officials and will be immediately deported to the U.S.

The 3rd U.S. Circuit Court of Appeals has reversed a lower court ruling and said the attorney general has the right to close terrorist- related deportation hearings for reasons of national security.

The Third Circuit is now in conflict with the Sixth Circuit which ruled the hearings must be open ("Democracies die behind closed doors").

We agree with Howard Bashman of How Appealing that this likely means the issue will reach the Supreme Court.

A Bail Hearing is scheduled for Tuesday on the Buffalo Six Terror Suspects.

We think he'll cut some loose, if not all.