Bump and Update:

The Supreme Court heard arguments in two cases today involving so-called "enemy combatants" held at Guantanamo Bay. The core question:

Can these foreign-born prisoners, held outside U.S. borders, use U.S. courts to try win their freedom?

Georgetown Law Prof and civil liberties expert David Cole, writing in the New York Times, says:

These suggestions that noncitizens have less right to be free than citizens are ill advised. Some provisions of the Constitution do explicitly limit their protections to United States citizens — the right to vote and the right to run for Congress or president, for example. The Bill of Rights, however, does not distinguish between citizens and noncitizens. It extends its protections in universal language, to "persons," "people" or "the accused." The framers considered these rights to be God-given natural rights, and God didn't give them only to persons holding American passports.

When one considers the specific right at issue in the enemy combatant cases — the right not to be locked up without a fair process — there is also no good reason to differentiate between citizens and foreigners. From the prisoner's standpoint, every human being has the same interest in not being locked up erroneously or arbitrarily. And from the government's perspective, the security interest in detaining terrorists is the same whether they are citizens or not.

A hearing is ongoing in Terry Nichols' state trial on murder charges over the defense's Motion to Dismiss for withholding of evidence by the prosecution.

Monday, government witnesses testified that the video tape referred to in Secret Service Logs depicting two persons exiting the Ryder truck at the federal building just before the explosion did not exist.

The Judge is expected to rule late today. Background is here and here.

David Neiwert of Orcinus writes today on the Apocalyptic Asymmetry of April 19.

A New York federal judge Monday refused to throw out revised charges against lawyer Lynne Stewart, who will stand trial in May on charges of improperly aiding her former client, blind Sheik Omar Abdel-Rahman. The defense had argued the charges were brought vindictively after the Judge had dismissed terrrorism charges against her. Michael Tigar, Stewart's lawyer, remains upbeat:

Stewart's lawyer, Michael Tigar, said he was pleased that the judge in his ruling noted that the government might have a more difficult task proving its case than it did with charges he tossed out last year. Koeltl said prosecutors must prove that Stewart knew about or intended to support a conspiracy to kill or kidnap people in a foreign country. "He laid out the path that the government is going to have to try to take," Tigar said. "Now, we look forward to getting a jury and talking about these things."

Our prior coverage of the case can be accessed here.

by TChris

Freedom of association is great for the Elks or the Knights of Columbus, but when young men want to hang out together in suburban Chicago, they'd better not give themselves a group name like "Satan Disciples."

A DuPage County judge on Monday banned more than a dozen members of a west suburban gang from hanging out with each other in a landmark Illinois decision that law enforcement officials said gives them a powerful weapon to combat gangs.

Telling people they can't associate with each other publicly is indeed a "powerful weapon," but its destructive force does more damage to the Constitution than to undesirable gang behavior.

The latest former politician to blast the Victims' Rights Amendment is none other than former Congressman Bob Barr:

The circus is back in town. Every two years, as we roll around to another grand Olympics of federal, state and local elections, the hopper in Congress begins to fill up with dangerous and unnecessary amendments to our U.S. Constitution.

...In the American political system, the Constitution was meant to operate like people who freeze their credit cards in a block of ice. That is, when faced with supremely important and emotional decisions involving things like the censorship of unpopular ideas or the seizure of firearms, the Constitution makes us walk to the corner and take a time out.

As to the Victims' Rights Amendment, Barr correctly notes:

Should Congress be allowed to overrule Supreme Court decisions it doesn't like? Congressman Ron Lewis (R-KY) has introduced such a bill, "The Congressional Accountability for Judicial Activism Act." Today, the Las Vegas Review Journal calls it a "very bad idea."

Under this law, the Constitution would essentially be interpreted to reflect popular opinion -- a scary thought, given that many Americans confronted with an unlabeled copy of the Bill of Rights would likely consider many of the scribblings dangerous and subversive. Our system is designed to insulate federal judges from the transitory whims of the mob. Rep. Lewis' proposal would obliterate that important safeguard and leave our rights and freedoms at the mercy of public sentiment.

In fact, Congress already has many options when it comes to reining in activist judges. It has the power to impeach federal judges who egregiously overextend their authority. It has the power to pass legislation -- or, along with state legislatures, amend the Constitution -- to addresses the concerns of the judiciary. And finally, Congress can simply refuse to confirm judicial candidates deemed objectionable. Of course, Rep. Lewis' bill is itself inherently unconstitutional -- and would certainly be found so by any federal court.

[link via How Appealing].

Cheers for the 9th Circuit Court of Appeals for throwing out a 25 year to life sentence for a man whose third strike was a shoplifting offense. The Court said the sentence was cruel and unusual punishment.

Ruling 2-1, a panel of the 9th U.S. Circuit Court of Appeals said the 25-year term handed to a California man convicted of stealing a $199 VCR violated the Eighth Amendment constitutional ban on cruel-and-unusual punishment. The appellate court said the punishment did not fit the crime even though the Supreme Court last year upheld the same sentences for two California shoplifters. The appeals court said the life sentence was unjust and more severe than a sentence for "murder, manslaughter or rape." The San Francisco-based appeals court said the Supreme Court's precedent did not apply to every third-strike defendant convicted of a felony.

Ralph Nader today called for the withdrawal of U.S. troops from Iraq within six months. He has a three part plan:

He said he would create an international peacekeeping force under United Nations auspices, promote Iraqi self-rule through independent elections and provide humanitarian aid to stabilize the country....."The key is this," Nader told reporters: "How do you separate the mainstream Iraqis from the insurgents when the mainstream Iraqis now are increasingly opposed to our presence there and increasingly, quietly or otherwise, supporting the insurgents? "The way you do it is you declare you are getting out."

The longtime consumer advocate said that the international peacekeeping force he advocated would be drawn from neutral nations and from Islamic countries. Nader said the election process should be carried out at the same time as the six-month withdrawal and done under international supervision.

In other Iraq news, the BBC is reporting Honduras has announced it will withdraw its troops from Iraq. Reuters report on Honduras is here. And two U.S. soldiers have left their units and are seeking asylum in Canada.

EditorandPublisher.com has announced that an important memo on Iraq will be released Tuesday:

In an unusual move for the organization, the Association of Alternative Newsweeklies (AAN) will release what it promises will be a bombshell article related to the Iraq conflict at 10 a.m. Eastern Standard Time on Tuesday. ....The 3,000-word story, embargoed until Tuesday but obtained by E&P today, is based on a "closely held" memo purportedly written by a U.S. government official detailed to the Coalition Provisional Authority (CPA). It was provided to writer Jason Vest by "a Western intelligence official." The memo offers a candid assessment of Iraq's bleak future -- as a country trapped in corruption and dysfunction -- and portrays a CPA cut off from the Iraqi people after a "year's worth of serious errors." The article is titled, "Fables of Reconstruction," with a subhed, "A Coalition memo reveals that even true believers see the seeds of civil war in the occupation of Iraq."

This is very big news. For background, go here.

Secret Service reports in 1995 state the agency had a video showing the Ryder truck pulling up to the federal building in OKC minutes before the bomb exploded --and that it depicts the "suspects" exiting the vehicle. Up until now, the Government has always claimed McVeigh was alone in the truck. Federal prosecutors and agents say they didn't know about the video.

The article has much more on evidence the Secret Service didn't disclose. If this is true, we hope the Judge in the Terry Nichols trial follows through with his promise to dismiss the case against Nichols, with prejudice.

Today is the 9th anniversary of the Oklahoma City bombing.

Update: You can view the OKC documents obtained by the AP here (pdf.)

From the new issue of New York Magazine's intelligencer column--Condi's slip:

A pressing issue of dinner-party etiquette is vexing Washington, according to a story now making the D.C. rounds: How should you react when your guest, in this case national-security adviser Condoleezza Rice, makes a poignant faux pas? At a recent dinner party hosted by New York Times D.C. bureau chief Philip Taubman and his wife, Times reporter Felicity Barringer, and attended by Arthur Sulzberger Jr., Maureen Dowd, Steven Weisman, and Elisabeth Bumiller, Rice was reportedly overheard saying, “As I was telling my husb—” and then stopping herself abruptly, before saying, “As I was telling President Bush.” Jaws dropped, but a guest says the slip by the unmarried politician, who spends weekends with the president and his wife, seemed more psychologically telling than incriminating. Nobody thinks Bush and Rice are actually an item. A National Security Council spokesman laughed and said, “No comment.”

[link via Wonkette, of course]

Update : Via Atrios, we just can't resist:

Following last week's article in the Charlotte Observer that prominently featured TalkLeft, this weekend's Washington Post reports on the increased number of political candidates who are placing ads on weblogs.

Premium and Regular blogads on TalkLeft are available and a terrific way to cost-effectively reach thousands of politically savvy readers.

Two years ago, in Ring v. Arizona, the Supreme Court said juries, not judges, must decide the factual basis for imposition of the death penalty. Today, the Supreme Court hears a case in which the question is whether that decision should be retroactive. Scotus Blog profiles the case here. We last wrote about the case here. Today's AP article is here.

Update: Here is a news article on today's oral argument.

Update: Dalia Lathwick of Slate, here on the case which she writes is about "the lusty lawyer, the hangman and the pot-smoking judge--she envisions Uma Thurman and Ben Affleck in the movie.

Last week we wrote about KDrink, a new Peruvian beverage which provides a buzz from the coca leaf:

In need of a little pick-me-up? Head on down to Peru and hit the grocery stores, where you'll find a new kind of iced tea drink--KDrink--with a formula made from coca leaves, the prime ingredient in cocaine.... Silvia Dongo, a pharmaceutical chemist who helped develop Kdrink, says the beverage provides energy from its 15 vitamins and minerals, 12 amino acids and 14 to 16 alkaloids that are found naturally in coca leaves. "Drinking coca beverages is a way to seek a natural and healthy stimulation," she says.

We said, "Sounds no different than Red Bull to us, but somehow, we think Drug Czar John Walters and AG Ashcroft will find a way to keep it from coming to America. "

Today we received an e-mail from Royal Food and Drink Co. in Peru, owner and maker of KDrink, with a request we publish it. We're happy to oblige.

A new study from the University of Michigan, to be presented Friday at a defense lawyer conference in Austin, TX, has examined 328 cases of wrongful conviction, and concluded that there are thousands falsely imprisoned today in America's jails:

A comprehensive study of 328 criminal cases over the past 15 years in which the convicted person was exonerated suggests that there are thousands of innocent people in prison today. Almost all the exonerations were in murder and rape cases, and that implies, according to the study, that many innocent people have been convicted of less serious crimes. But the study says they benefited from neither the scrutiny that murder cases receive nor from the DNA evidence that can categorically establish the innocence of people convicted of rape.

Here are the numbers:

The Los Angeles Times reports that Bush is losing ground with voters of rural areas:

....cracks have surfaced in President Bush's once-solid rural constituency. From places like Sherman County to Montcalm County, Mich., and Mahoning County, Ohio, some Republicans are so concerned about crop prices and high unemployment that they're considering voting Democratic for the first time.

Spain's new Prime Minister, Jose Luis Rodriguez Zapatero, has announced the withdrawal of Spanish troops from Iraq--as soon as possible:

A day after he was sworn in, Prime Minister Jose Luis Rodriguez Zapatero said he did not believe the United Nations would assume responsibility for Iraq after the U.S.-led occupation formally ends June 30 -- his criterion for allowing the troops to stay. "More than anything, this decision reflects my desire to keep the promise I made to the Spanish people more than a year ago," said Zapatero, whose Socialist party came to power after general elections on March 14. "Driven by the deepest democratic convictions, the government does not want to, cannot and will not act against or behind the backs of the will of the Spanish people."

9/11 Commission member and former Department of Justice official Jamie Gorelick repudiates John Ashcroft's testimony of last week in today's Washington Post:

At last week's hearing, Attorney General John Ashcroft, facing criticism, asserted that "the single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents" and that I built that wall through a March 1995 memo. This is simply not true.

First, I did not invent the "wall," which is not a wall but a set of procedures implementing a 1978 statute (the Foreign Intelligence Surveillance Act, or FISA) and federal court decisions interpreting it. In a nutshell, that law, as the courts read it, said intelligence investigators could conduct electronic surveillance in the United States against foreign targets under a more lenient standard than is required in ordinary criminal cases, but only if the "primary purpose" of the surveillance were foreign intelligence rather than a criminal prosecution.

Has anyone noticed Billmon at Whiskey Bar has a "closed" sign up? We hope it's temporary.

Geoff Nunberg will be mentioning a bunch of blogs on his NPR Fresh Air program Monday. Congrats to Skippy for being included.

Happy blogiversary to Atrios and James Capozzola -- Eschaton and Rittenhouse Review turned two years old this week.

Wonkette makes the New York Times:

With her gossipy, raunchy, potty-mouthed blog, Ms. Cox, a 31-year-old self-described failed journalist, has grabbed the attention of staid Washington, where gossip columns usually amount to little more than records of Capitol Hill staff changes and James Carville sightings. As she puts it, her mission for her blog (www.wonkette.com) is to write "a blend of gossip and satire and things I make up." It supports no party line, mixing gossip items from newspapers and Web sites with tips e-mailed from readers, which could be anything from guesses about which members of the Bush administration are gay to blind items on Washington luminaries. "

Josh Marshall receives a heartfelt e-mail from the employer of the four kidnapped Italian bodyguards in Iraq, with special praise for Fabrizio who was killed.

The number of U.S. troops killed in Iraq in April now stands at 99.

Ten U.S. troops were killed on Saturday in combat across Iraq - including five U.S. Marines killed in pitched battles near the Syrian border - and an eleventh soldier died in a tank rollover, the military said. The deaths brought to 99 the number of U.S. troops killed in violence since April 1.

Steve Gilliard says we're losing to the guerillas. Is he right?

Make no mistake, none. This has been a month of defeats for the US. We had to stop outside Fallujah, stop outside Najaf and now face a blockade of Baghdad. We are actively losing this war and that will be clear as time goes on.

Did Illinois let this man freeze to death in prison?

A McHenry County man who in December died of hypothermia in a Downstate prison wore only a hospital gown in his bare cell, while staffers wore winter coats, hats and gloves and drank hot beverages to keep warm, according to a wrongful-death lawsuit. The suit, filed by the father and brother of Charles Platcher, seeks more than $1 million from the state Department of Corrections and its health-care contractor, Health Professionals Ltd. of Peoria. It alleges abuse of Platcher, including that a sock was stuffed in his mouth and that he was pushed down metal stairs.

Platcher, 31, was serving a 40-year sentence in Menard Correctional Center for stabbing his mother to death in 2001. After being found unresponsive Dec. 25, he was taken to Memorial Hospital in nearby Chester, where he was pronounced dead. A coroner's inquest ruled March 30 that Platcher died of hypothermia. "He was allowed to freeze to death in their care," said John Julian, the Platchers' lawyer. "At the very least, their conduct was negligent and fell below the standard of care one would expect to be provided to inmates."

The 9/11 Commission studied the use of wiretaps since the Sept. 11 attacks:

The number of secret surveillance warrants sought by the FBI has increased 85 percent in the past three years, a pace that has outstripped the Justice Department's ability to process them quickly. Even after warrants are approved, the FBI often doesn't have enough agents or other personnel with the expertise to conduct the surveillance. And the agency still is trying to build a cadre of translators who can understand conversations intercepted in such languages as Arabic, Pashto and Farsi.

....The warrants, authorized by the Foreign Intelligence Surveillance Act, allow for wiretaps, video surveillance, property searches and other spying on people thought to be terrorists or spies. After the 2001 Patriot Act and a key 2002 court decision crumbled the legal wall separating the FBI's criminal and intelligence investigations, use of FISA warrants has soared as sharing of information has become easier.

And now, Bush calls for renewal of the Patriot Act. We say no, pass the Safe Act instead.

[Ed. title edited to reflect the 85% figure reflects increase in wiretap requests rather than actual wiretaps]

We're on lunch break, in the lobby where we have a wireless connection for a few minutes. There was a very interesting presentation this morning by five prosecutors and a judge. All have begun programs to find prison alternatives for drug offenders--the most innovative is in Brooklyn, New York, called DTAP.

DTAP is the first prosecution-run program in the country to divert prison-bound felony offenders to residential drug treatment. The program targets drug-addicted defendants arrested for nonviolent felony offenses who have previously been convicted of one or more nonviolent felonies. Qualified defendants enter a felony guilty plea and receive a deferred sentence that allows them to participate in a residential therapeutic community (TC) drug treatment program for a period of 15 to 24 months. Those who successfully complete the program have their charges dismissed; those who fail are brought back to court by a special warrant enforcement team and sentenced to prison. To prevent relapse and reduce recidivism, the District Attorney's Office has formed a Business Advisory Council to identify and develop employment sources in Brooklyn. DTAP also has a job developer to assist graduates in finding and maintaining employment.

What strikes us as particularly notewortthy is that they take repeat offenders. They realize that drug treatment fails the first few times around for many. In New York, under the Rockefellar drug laws, a first offense for over 1/8 ounce is 15 to life. For a second offense of less than 1/8 of an ounce, it's still 41/2 to 9 years. And these are mandatory minimum sentences.