A second criminal defense lawyer has filed a motion challenging the NSA warrantless wiretaps. Talkleft wrote here about Albany lawyer Terry Kindlon who filed the first such motion. David Smith of Alexandria, VA, another excellent defender is now representing Iyman Faris, the trucker from Ohio who pleaded guilty to planning to take down the Brooklyn Bridge.

A motion filed by Faris' attorney David Smith in U.S. District Court in Alexandria, Va., argues that investigators improperly obtained evidence against Faris and that his trial lawyer was ineffective.

Given the likelihood that Faris' phone conversations or e-mails had been electronically monitored, Faris' trial lawyer, Frederick Sinclair, should have asked for evidence of such surveillance, Smith said in the motion. "Had he done so, the government would have been in a real bind and this would have enabled Faris to, at a minimum, negotiate a much more favorable plea bargain," the motion said.

....At his sentencing, prosecutors acknowledged that federal agents were led to Faris by a telephone call intercepted in another investigation.

The challenges are going to be multiplying rapidly. Here's who reportedly is next on deck:

Tomorrow, the Associated Press will release 200 pages of government documents it has received concerning debates in the Ford Adminstration over conducting warrantless surveillance for national security purposes.

The roughly 200 pages of historic records obtained by The Associated Press reflect a remarkably similar dispute between the White House and Congress fully three decades before President Bush's acknowledgment he authorized wiretaps without warrants of some Americans in terrorism investigations.

Among those named in the documents: George H.W. Bush, Donald Rumsfeld and Dick Cheney. As one analyst says, "It's deja-vu all over again."

FISA was passed in 1978, during the Ford Administration. Papa Bush and other Republicans were afraid the law would diminish presidential powers.

You've heard of "no-call" lists to keep telemarketers at bay. Now you can sign up for a "no-spy" list, courtesy of ProgressNow Action.

If you have found little to laugh about over President Bush's illegal domestic spying program, turn up your speakers and click here to watch ProgressTV's 2 minute Bush Spy Video. Then take action to protect your privacy.

Over 50 million American citizens in twenty-eight states already are signed on to telephone "No-Call Lists" that protect them from unwanted telemarketing calls. But when it comes to protecting ourselves from being spied on by President Bush and the National Security Agency we have no protections.

Until Now. To ask for protection from unwanted domestic eavesdropping, click this form to sign up for the No-Spy List:

Three cheers for the little guy. In this case, Brandeis University library director Kathy Glick-Weil, who refused to turn over 30 computers to the FBI because they didn't have a warrant. And the mayor, who backed her up.

Federal Bureau of Investigation agents tried to seize 30 of the library's computers without a warrant, saying someone had used the library's Internet connection to send the threat to Brandeis.

After the refusal, the FBI did what they should have done in the first instance: they went to a judge and got a warrant.

[hat tip Patriot Daily.]

Sen. Russ Feingold Monday charged that Attorney General Alberto Gonzales misled the Judiciary Committee at his Senate confirmation hearing on January 6, 2005, when repsonding to questions about the President's authority to order warrantless surveillance. [link fixed]

In a letter to the attorney general yesterday, Feingold demanded to know why Gonzales dismissed the senator's question about warrantless eavesdropping as a "hypothetical situation" during a Senate Judiciary Committee hearing in January 2005. At the hearing, Feingold asked Gonzales where the president's authority ends and whether Gonzales believed the president could, for example, act in contravention of existing criminal laws and spy on U.S. citizens without a warrant.

Let's go to the transcript: (Panel I, afternoon transcript of January 6, 2005, available on Lexis.com)

Al-Qaeda top deputy Ayman al-Zawahiri released a new tape with new threats of attacks. He called Bush the "butcher of Washington."

Al-Zawahiri, shown in the video wearing white robes and a white turban, said a Jan. 13 airstrike in the eastern village of Damadola killed "innocents," and he said the United States had ignored an offer from al Qaeda leader Osama bin Laden for a truce.

Bush undoubtedly will use this tape and Osama's tape of a few weeks ago to remind us during SOTU that we must win the war on terror. He probably won't remind us that his war on terror and curtailing of our civil liberties did not produce either one of these two top terrorists despite the passage of more than four years since Sept. 11.

by Last Night in Little Rock

Suppose you are an official in a country that espouses free Democratic elections around the world, but when an election comes in a place critical to the balance of world peace and the vote is counted, a rogue government is elected contrary to your expectations? What do you do?

No. I'm not talking about the election of George Bush, although the shoe fits.

This is, of course, about Hamas, and its coming to power in the recent Palestinian election.

Secretary of State Condoleeza Rice admits that Hamas' strength in Palestine was misunderestimated, where the Fatah party of the late Yassir Arafat came in second in the election.

Our first response: "We don't deal with terrorists." But what happens when an organization whose name is often associated with terrorism suddenly gains respectability? Why should our first response to the election be relabelling Hamas as a terrorist organization when it holds a majority of the legislative seats in Palestine? As shown by the news yesterday, White House Press Secretary Scott McClellan's pronouncement last Wednesday ("We do not deal with Hamas. Hamas is a terrorist organization. Under current circumstances, I don't see any change in that.") may have to change as Rice recognizes reality.

The Baltimore Sun has an expose of the failure of the National Security Agency's trailblazer program.

A program that was supposed to help the National Security Agency pluck out electronic data crucial to the nation's safety is not up and running more than six years and $1.2 billion after it was launched, according to current and former government officials. The classified project, code-named Trailblazer, was promoted as the NSA's state-of-the-art tool for sifting through an ocean of modern-day digital communications and uncovering key nuggets to protect the nation against an ever-changing collection of enemies.

Newsweek has a five page article, The Palace Revolt, on how former prosecutor James Comey and former Office of Legal Counsel head Jack Goldsmith bucked Cheney and Addington over the Administration's torture policy. An excellent read.

They were loyal conservatives, and Bush appointees. They fought a quiet battle to rein in the president's power in the war on terror. And they paid a price for it. A NEWSWEEK investigation.

[hat tip Patriot Daily.]

Attorney General Alberto Gonzales came to speak last week at Georgetown. Check out the pictures.

In Gonzales' speech, he attempted to justify the warrantless NSA surveillance program of U.S. citizens. During the course of the speech, the students did something both ballsy and brave-- They got up from their seats and turned their back on him.

The Washington Post today reminds us of Patriot Act II, drafted by the Justice Department lawyers in February, 2003 and submitted secretly to members of Congress. When news of the draft leaked, the Justice Department claimed it was just something being debated, not something intended to be introduced.

Why it matters now: It undermines Bush and Gonzales' claims that Bush didn't need Congress' approval or an amendment of FISA to engage in his warrantless electronic surveillance program, instituted in 2001.

Some background: Patriot Act II was officially called the Domestic Security Surveillance Act of 2003. The Center for Public Integrity still has the complete bill on their website, (text here, pdf) along with the control sheet (pdf) from the Office of Legislative Affairs showing that it was directed to House Speaker Denny Hastert and Veep Dick Cheney.

The Justice Department today issued this long press release in an attempt to debunk what it calls "myths" about Bush's warrantless NSA surveillance program.

Shorter version: We're at war and the President is King. The legal arguments are still based on the questionable assumption that the President's Article II constitutional power and the Iraq war authorization gave Bush the power to engage in the program.

FISA expressly envisions a need for the President to conduct electronic surveillance outside of its provisions when a later statute authorizes that surveillance. The AUMF is such a statute.

The NSA activities come from the very center of the Commander-in-Chief power, and it would raise serious constitutional issues if FISA were read to allow Congress to interfere with the President's well-recognized, inherent constitutional authority. FISA can and should be read to avoid this.

DOJ also argues that the 72 hour emergency window isn't enough time for it to prepare a FISA application, but does not address why it didn't ask Congress to amend the law to give them more time.