We received this email today from Amy Robertson, a civil rights lawyer in Denver:

I hope you have the opportunity to read "Lost in the Jihad - the Dropped Case Against John Walker Lindh," by Jane Mayer, in the March 10 New Yorker. It includes an almost unbelievable account of Justice Department efforts to keep Lindh from having an attorney, including ignoring the advice of its own ethics office, withholding and hiding emails conveying that advice, and then persecuting the young ethics office lawyer who spoke up about her emails. What is perhaps most interesting is Mayer's point that DOJ fuck-ups ultimately made the case much harder to prosecute than it would have been if they had acted properly.

Here's what Slate (March 3) had to say about Mayer's piece:

The New Yorker, March 10 --Why didn't John Walker Lindh ever go to trial? A piece describes how the Justice Department's case against him disintegrated: The defense was prepared to argue that the FBI agent who extracted Lindh's confession ignored advice that such an interrogation would be illegal. Justice eventually dropped nine of the original 10 charges and settled for a 20-year sentence. Though it contends that Lindh could be innocent, the story is sharpest when detailing the ditherings of the criminal justice system post-9/11.

Truthout has posted an interview with Jane Mayer about her Lindh article, also appearing in the March 10 New Yorker, accessible here.

The National Association of Criminal Defense Lawyers (NACDL) filed comments with the Department of Defense today objecting to its February 28 proposed instruction on military tribunals. The organization contends that the proposed instruction poses a threat to the safety U.S. military personnel abroad.

Citing a concern, among others, that U.S. military personnel could face danger due to its provisions, criminal defense bar leaders filed comments today with the Department of Defense General Counsel's Office commenting on the DoD's draft Instruction pertaining to crimes and their elements, as well as procedures, for use by military commissions. The proposed Instruction was issued on February 28th.

The comments by the National Association of Criminal Defense Lawyers raised the concern that the proposed Instruction is so alien to recognized principles of international law, especially the Law of Armed Conflict, that by implementing them, the Department of Defense is seriously jeopardizing the legal rights and privileges of American military members abroad, should they become captured.

"Our concern [with the Instruction] is founded in part on the prospect that American prisoners of war in future conflicts may be harmed if this Instruction is used as a justification for improper treatment of Americans," said Lawrence Goldman, president of NACDL, in a letter to DoD General Counsel William J. Haynes which accompanied the comments.

"Foreign countries capturing American military members would have no incentive to grant them POW status," said Donald G. Rehkopf, Jr., a criminal defense lawyer in Rochester, New York, and co-chair of NACDL's Military Law Committee. "Using our own DoD principles contained in the proposed Instruction, our enemies could subject them to 'trials' in violation of international law."

President Bush, by a prior order, authorized use of military commissions, often called tribunals, to try alleged terrorists and other military "detainees," in order to avoid public trials in federal courts.

NACDL's Military Law Committee, co-chaired by Rehkopf, Terri R. Z. Jacobs, and Jack B. Zimmerman, each of whom have extensive military law backgrounds and experience, drafted the comments. In forwarding NACDL's comments to the DoD, Goldman noted that the proposed Instruction is fundamentally flawed.

"There is a serious Constitutional question about the Defense Department legislating crimes and their elements," said Goldman, a criminal defense lawyer in New York City. "According to the plain language of Article I, Section 8, of the United States Constitution, it is the duty of Congress, not the Defense Department, to 'define and punish …offenses against the Law of Nations.'"

According to NACDL's comments, the proposed Instruction also ignores numerous federal statutes that Congress has enacted dealing both with military commissions and trials of persons accused of war crimes and terrorist acts. The proposed Instructions "simply fail to acknowledge Congressional will in this area," said Goldman.

The comments also address significant ex post facto problems and a fundamental shifting of the burden of proof that is contrary to accepted principles of Anglo-American law, according to the comments. "Requiring a defendant to prove his or her innocence is not part of our Constitutional framework, nor is it a recognized concept under international law," Goldman said.

NACDL also objected to the proposed Instruction's provisions on self-defense and duress, its failure to recognize statutes of limitation under American and international law, and various definitions pertaining to concepts of criminal justice.

"For the DoD to run the risk of jeopardizing the lives of America's military members, for the sake of expediency in prosecuting an alleged terrorist by a military commission, is an unconscionable slap in the face to those who wear the uniform to defend America," said Rehkopf.

You can read the draft instruction, NACDL's filed objections and an analysis of the draft instruction here.

The AP is reporting that "American Taliban" John Walker Lindh may have been attacked in prison by a white supremacist inmate. Lindh is at Victorville, in California. The family is gagged, so we are dependent on the Bureau of Prisons for information. Here's what they have had to say so far: "Federal Bureau of Prisons spokesman Dan Dunne said agency policy prohibits him from commenting on the details of an inmate's confinement."

An unnamed source who works at the prison said "Lindh was placed in the general prison population last month at his attorneys' request and was working as an orderly, cleaning indoors where guards could watch him....The source said Lindh had been in special housing similar to solitary confinement for his protection since Monday."

Brett over at Marstonalia raises some interesting questions about the recent arrest of three central New York men who have been accused of violating sanctions against Iraq by collecting money for Iraqi children. He's concerned about the implications of the Justice Dept.'s announcement which is not backed up by the Indictment. This is connected to the suspension of the prison chaplain last week.

The Pentagon has released a list of two dozen crimes that will be subject to prosecution in a military tribunal.

The crimes include use of poisons or analogous weapons and the taking of human shields--as well as more traditional offenses such as the taking of hostages, murder, rape during an armed conflict and conspiracy.

Pentagon lawyers and other legal experts described the 19-page draft as a codification of the laws of war amid the new landscape of international terrorism.

It's been 15 months since Bush signed the order authorizing trial by military tribunal for non-U.S. citizens, and Rumsfeld says they are getting closer to finalizing the rules for such proceedings.

The military commissions are expected to involve a small number of prisoners held in camps outside the United States and would be conducted outside this country. Only a small number of the 650 detainees at the U.S. Navy prison at Guantanamo Bay and the 100 or so in a U.S. military compound in Bagram, Afghanistan, are likely to be taken before a tribunal, government officials have said.... Defendants will be given military lawyers and have the right to see evidence against them, unless it is classified. A decision by a two-thirds majority of judges would be required for conviction. .

The President makes the final decision as to whether a specific individual is tried by tribunal. Zacarias Moussaoui, now awaiting federal trial in Virginia, may become the first person to be tried in before a military tribunal if the Government loses its bid in the 4th Circuit to keep Moussaoui's lawyers from interviewing Ramzi Binalshibh, a witness who could provide exculpatory information for Moussaoui.

Bump and update: The Judge has denied the defense request for disclosure of details of the FISA wiretaps and bugs.

Via Cursor, here is some earlier coverage of the case.

Posted earlier today:

It's been a while since we've heard about the five defendants in the Portland Oregon terror case. Four of the defendants are alleged to have traveled to China in late 2001 with the intent of getting to Afghanistan to join the Taliban and al-Qaeda in the fight against the U.S. The fifth defendant, who is the ex-wife of another of the suspects, allegedly wired money to her ex-husband to support the group's efforts. A sixth defendant is a fugitive.

The case is in the news today, as a two-day motions hearing is wrapping up.

A federal judge ordered federal prosecutors Tuesday to reveal how much they paid an informant who recorded evidence during a terrorism investigation that led to the arrest of five Portland residents. U.S. District Judge Robert Jones also ordered U.S. Attorney Charles Gorder to reveal whether Khalid Ibrahim Mostafa, an Egyptian-born mechanic, had worked as an informant before and for which law enforcement agencies.

The defense also sought files from Guantanamo Bay prisoners. Although the Judge denied the request, he asked the prosecutors to assure him that no evidence obtained from the Guantanamo detainees would be brought into court. Another important defense challenge is underway in the case.

Defense attorneys plan to challenge evidence collected under the warrants issued by the ultra-secret Foreign Intelligence Surveillance court, or ``spy court.'' The Foreign Intelligence Surveillance Act was passed in 1978 as a way to fight Cold War espionage. Attorneys are also challenging aspects of the USA Patriot Act, which was passed in the aftermath of the Sept. 11 attacks. It expanded the spy court's power.

The use of secret surveillance permeates the case.

The case built slowly beginning shortly after Sept. 11, 2001, when several men were spotted wearing robes and turbans and target practicing in a gravel pit in Skamania County, Wash.

That prompted round-the-clock surveillance by FBI teams, in part using 36 ultrasecret warrants handed down by the Foreign Intelligence Surveillance Act court.

The disputed evidence includes the Federal Intelligence Surveillance Act warrants. Also presented as evidence in the case were 7,500 pages of FBI reports and 75 compact disks containing recorded conversations a government informant had with Battle and Ford.

More of our earlier coverage of this case is here and here.

The case against the Florida professor charged with terrorism crimes treads new ground under the Patriot Act

The landmark legal case against Tampa, Fla., university professor Sami al-Arian will provide the first showcase for the unprecedented powers Congress granted the FBI and the Justice Department after the Sept. 11 attacks.

Al-Arian and seven others are charged with conspiracy to commit murder via suicide attacks in Israel and the Palestinian areas, racketeering and money laundering - charges they strongly deny. Al-Arian contends he was indicted because of his pro-Palestinian views.

What makes the al-Arian prosecution a test case is the collaboration between federal agents gathering foreign intelligence and prosecutors bringing domestic criminal charges. Before the passage of the Patriot Act, that wasn't permitted under Justice Department guidelines.

The Foreign Intelligence Surveillance Act of 1978 created the secret court that reviews FBI requests to investigate suspected "agents of a foreign power" operating in the United States who are believed to be spying or fostering international terrorist activities.

The law was influenced by past abuses when intelligence gathering powers were used to spy on political enemies. For more than two decades, Justice Department officials erected a wall that kept the intelligence gathering side of the FBI separate from the criminal investigative side.

Weeks after Sept. 11, Congress passed the USA Patriot Act, which dismantled the wall, removing many of the barriers that limited the amount of classified national security information that could be used in a criminal case.

Stay tuned on this one.

Today's bail hearing for the professor accused of terrorism charges was continued until next month . He will remain in custody until then.

In his first statement since his arrest, delivered through his daughter, Professor Sami Al-Arian's says his arrest is due to hysteria over 9-11.

"I'm crucified today because of who I am, a stateless Palestinian, an Arab and Muslim, an outspoken advocate for Palestinian rights," wrote the tenured computer engineering professor, who has long denied ties to terrorists. "I'm a prisoner because of the hysteria engulfing this country in the aftermath of the 9-11 tragedy, and because there are very powerful political groups which are thirsty for my blood. I'm not the enemy, but the forces of exclusion and intolerance are."

"Federal prosecutors inflated their success in terrorism-related convictions last year by wrongly classifying almost half of them, the General Accounting Office has found."

"Over all, 132 of 288 convictions reported as international or domestic terrorism or terrorism-related hoaxes were found by investigators to have been wrongly classified as such for the fiscal year that ended Sept. 30, the accounting office, the investigative arm of Congress, found...."

"The accounting office said the inaccuracies hampered Congress's "ability to accurately assess terrorism-related performance outcomes of the U.S. criminal justice system," information that would be crucial to such Congressional endeavors as approving the department's budget requests"

Update: You can access the full report here.

A Palestinian college professor previously accused of having terrorist ties was arrested in Florda this morning by federal agents. Others were arrested in Chicago and overseas.

"Television reports showed Sami Al-Arian being led in handcuffs to FBI headquarters in Tampa after the arrest. His indictment is sealed until a court hearing scheduled for Thursday afternoon."

"It's all about politics," Al-Arian told reporters as agents A Palestinian college professor previously accused of having terrorist ties was arrested early Thursday by federal agents. He was one of several people arrested here, in Chicago and overseas, the FBI said."

The Government will hold a press conference this afternoon.

Journalist, author and blogger David Neiwert makes a lot of sense in trying to figure out what's "so new" about the material reported this week in the Associated Press on McVeigh and Oklahoma, and in his description of what could use further investigation:

Well, a lot of it has to do with the investigation itself. As I've explored in some depth in Salon, there are still some very important unanswered questions about the case. Some of them -- particularly the credibility of, and the circumstances surrounding, the eyewitness identifications of McVeigh and Nichols during the bomb-building phase in Kansas -- cut deeply against the government's own conclusions.

If you are interested in the Oklahoma bombing case, and you haven't yet read David's Salon piece, you should. He really nails the problems with the Government's eyewitnesses and its insistence that "John Doe 2" was not a co-conspirator.

The AP is reporting it has reviewed thousands of documents that link Timothy McVeigh to the white supremacists at the Elohim City Compound, and that some of the documents were not disclosed to the defense before his trial.

The Government's position, of course, is that the documents don't change anything--they still believe McVeigh and Nichols acted alone.

Stephen Jones, McVeigh's chief counsel, had this to say yesterday:

"They short-circuited the search for the truth," attorney Stephen Jones said. "I don't doubt Tim's role in the conspiracy. But I think he clearly aggrandized his role, enlarged it, to cover for others who were involved."

We're not sure. Here's what we had to say about it a few weeks ago.

We've always disagreed with the Government's insistence there was no John Doe 2--and we remain skeptical of its explanation for the extra leg found in the bombing--but we're still a ways from concluding that white supremacists or middle eastern terrorists were involved in the OKC bombing.