The Supreme Court will hear arguments tomorrow in Lawrence v. Texas, which experts say may be the most important case taken by the case on gay rights in the past 20 years.

The issue is whether Texas can ban same-sex sodomy between consenting adults in the privacy of their own home. Texas will argue its legislature has the authority to ban conduct it considers immoral.

The petitioners will argue that their liberty and privacy interests as guaranteed by the 14th Amendment's Due Process Clause renders the Texas law illegal.

You can read more about it in today's Texas Lawyer here.

The U.S. Supreme Court has handed Ashcroft another victory. The Court refused to allow the ACLU, National Association of Criminal Defense Lawyers ( NACDL) and other groups to intervene and appeal the FISA Review Court decision allowing expanded secret searches of mail, email and conversations and the unprecedented sharing of the seized information between intelligence and law enforcement agencies.

The Supreme Court did not rule on the merits of the case, so the issue likely be back before the Court at some point.

The Bush administration has argued the surveillance, and a special court that oversees sensitive domestic espionage tactics, are indispensable tools in the war on terror. The ACLU used an unusual maneuver to get the case to the Supreme Court, filing an appeal on behalf of people who don't even know they're being monitored. The justices would have had to give special permission to allow it. They refused, without comment. The action was not a ruling on the merits of the ACLU's challenge, and the issue is expected to return to the high court later.

Civil liberties watchdogs are concerned about the expanded use of FISA for secret surveillance and searches because there is "little or no" oversight by the courts or outide parties over the process. Further, the target of the surveillance never has to be informed that the government has obtained his personal records or put him under surveillance, and those who turn over records are effectively gagged from disclosing they received an order and complied with it.

Our summary of the case that was decided today is here. Our detailed coverage of the case, the arguments against the ruling and the FISA and Patriot Act provisions that underlie Ashcroft's justification for the expanded surveillance, can be found here.

The Washington Post reports today on Ashcroft's significant expansion of the number of wiretaps and other searches since the ruling by the FISA Review Court.

Since the Sept. 11, 2001, attacks, the Justice Department and FBI have dramatically increased the use of two little-known powers that allow authorities to tap telephones, seize bank and telephone records and obtain other information in counterterrorism investigations with no immediate court oversight, according to officials and newly disclosed documents.

The FBI, for example, has issued scores of "national security letters" that require businesses to turn over electronic records about finances, telephone calls, e-mail and other personal information, according to officials and documents. The letters, a type of administrative subpoena, may be issued independently by FBI field offices and are not subject to judicial review unless a case comes to court, officials said.

Attorney General John D. Ashcroft has also personally signed more than 170 "emergency foreign intelligence warrants," three times the number authorized in the preceding 23 years, according to recent congressional testimony.

Update: You can read the opinion here.

"On Wednesday, the U.S. Supreme Court will hear arguments on just how far Michigan can go in restricting visits to prison inmates. The court will weigh a state's ability to control its prisons against the rights of inmates, a balancing act that in the past has tilted in favor of government. For Bueno and the more than a million other inmates in the United States, its decision could mean greater access to visitors -- or more restrictions. "

SCOTUSBlog reports on Wiggins v. Smith, a Supreme Court case to be taken up this week involving ineffective assistance of counsel in a death case.

We posted our in-depth view of the case here. Thanks to SCOTUSBlog for mentioning and linking to it.

The issue is whether counsel has a duty to investigate or present mitigating evidence that could lead a sentencing jury to vote for life instead of death. The Fourth Circuit ruled against Wiggins, saying strategic choices by counsel are not ineffective--particularly when the evidence could have hurt as well as helped the defendant.

The National Associaton of Criminal Defense Lawyers (NACDL) filed this amicus brief in the case, arguing that

A. A Strong Defense Does Not Excuse Failure to Investigate Mitigating Information

B. The Mitigating Evidence of Petitioner’s Background Was Not Incompatible With a Challenge to Death Eligibility as a Principal, and

C. The Decision to Forego Mitigating Evidence to Retry Guilt Was Unreasonable

Remember that 1948 military plane crash we discussed here, and the Government's misrepresentation as to its cause, which now casts in doubt the viability of the 1953 Supreme Court decision Reynolds v. US? The 1953 Reynolds decision established the military and state secrets privilege. Georgetown's Jonathan Turley says it is ''the bedrock for an entire superstructure'' of national security law."

It's back in the news today. If the victim's daughter is correct, and the U.S. lied about the crash to the Court, what does it mean?

If the military did lie to the Supreme Court about the nature of the accident report, [the daughter] Loether's discovery casts doubt on the landmark Supreme Court decision. Few observers expect the petition to change law or government policy, but it could serve as an important lesson about the potential consequences of expanding the government's homeland security powers, as the Bush administration has tried to do, in part relying on United States v. Reynolds.

One specialist in national security law who is critical of the Reynolds decision said the Supreme Court's response to this unusual petition could have wide implications.

''Reynolds is already used in an abusive fashion, but if the court remains silent those abuses will be magnified significantly,'' said Jonathan Turley, a professor at George Washington University. ''If the government is not held to account in the face of obviously false statements, it's hard to see what limitations exist.''

Thanks to Jim Capozzola at Rittenhouse for a heads-up on the article.

Lawyers for the rejected plaintiffs in the 1st Circuit case challenging Bush's authority to declare war plan a push to reopen the case.

A significant constitutional issue is involved: "Whether there is a wrongful concentration of power in one person - the president.'' Lawyers for the plaintiffs say that the Appeals Court did not doom the case entirely, but left it subject to reconsideration if new facts were developed. The Court rejected the Government's assertion that there is a "categorical bar" to challenges and on the court's role in such disputes.

The administration had argued that the courts have no role to play in the dispute because the Constitution assigns war-making power solely to Congress and the White House. The Appeals Court said this is a murky area of constitutional law, so it dismissed the case instead on the ground that the legal controversy was not fully developed. Courts could not review the dispute, it said, ''until the available facts make it possible to define the issues with clarity. ... Here, too many crucial facts are missing.''

Seventy-four law professors across the country "urged the appeals court to rule that Bush cannot send the nation to war against Iraq without UN approval or, failing that, without a formal declaration of war by Congress."

We regret we haven't followed this lawsuit more closely since the beginning (our prior coverage is here) and we intend to report on it from this point foward.

Lawyers for the plaintiffs promise they are not going to "wait until bombs fall" to press forward with the case.

If the Appeals Court allows the case to go forward, it could set the stage for a major constitutional conflict between the president and the courts, and it could force the White House to put war plans on hold, awaiting court action.

Additional media coverage of the lawsuit is available here and here and <a href="http://deoxy.org/wc/wc-ilaw.htm and " here. We also encourage you to re-read the text of Senator Robert Byrd's October 3, 2002 floor remarks delivered to the U.S. Senate.

You can read the major pleadings in the lawsuit here. Coverage pertaining the the First Circuit arguments in the case is here.

You can read the First Circuit's opinion in the case, Doe v. Bush, here. The Plaintiffs in the case are active-duty members of the military, parents of military personnel, and members of the U.S. House of Representatives who sought a preliminary injunction to prevent the defendants, President George W. Bush and Secretary of Defense Donald Rumsfeld, from initiating a war against Iraq based on consitutional grounds.

Special thanks to George Hunnsinger, Professor of Theology at the Princeton Theological Seminary for prodding us to report in greater detail on the lawsuit and the need for greater awareness of it. You can read some of his writings on the topic here and here. We agree with him that issues surrounding the legality of going to war without UN Security Council approval and challenges based upon principles of international and consitutional law must continue to be raised in the Courts.

A federal judge last week refused to prohibit the U.S. government from potentially prosecuting two women with painful medical conditions whose doctors said marijuana is their only medical hope of alleviating their pain.

In the first case of its kind, the two California medical marijuana users sued Attorney General John Ashcroft, seeking a court order allowing them to smoke, grow or obtain marijuana without threat or fear of federal prosecution. U.S. District Judge Martin Jenkins expressed sympathy for the women but said federal law required him to rule against them."

After oral arguments in the case,

defense attorneys were impressed by the Judge's evident grasp of their arguments, his willingness to grapple with the fundamental issues, and his thorough familiarity with all of the legal precedents in the case. "This was the most thorough hearing of medical marijuana given by any court," said defense attorney David Michael, a veteran of numerous medical marijuana cases.

Among the issues debated was the 9th Amendment and

- Whether the right to use medical marijuana for relief of pain and suffering was protected as a fundamental liberty interest by the Ninth amendment and substantive due process. [Randy] Barnett, a leading Ninth Amendment scholar, argued that what was at issue was the right of control one's own body, and that no right could be more fundamental.

The Judge also considered whether the federal Controlled Substance Act violated the 10th Amendment. You can access the briefs and opinion in the case, Raiche v. Ashcroft, here.

We highly recommend reading the opinion for its exposition on the 9th and 10th Amendments, particularly with respect to drug cases.

"The United States of America v. Adam Vaughn was a case about a stand-up Marine, a beloved cop, and a local hero — until the government branded him part of the largest kid porn ring in history." So began reporter Steve Silberman in Wired Magazine in October, 2002 about the FBI's Operation Candyman crusade. We reported on the case and Silberman's article here.

The evidence has now been thrown out, with two federal judges saying the FBI recklessly misled them in affidavits for search warrants.

Two federal judges have dealt a potentially crippling blow to a nationwide Internet child pornography crackdown, saying the FBI recklessly misled judges to get search warrants that were used in making more than 100 arrests." "Constitutional safeguards cannot be relaxed just because ``the crimes are repugnant,'' said U.S. District Judge Denny Chin in New York as he dismissed evidence obtained against one defendant. Chin's ruling, dated Wednesday, was released publicly Thursday."

To our knowledge, Silberman was the only reporter to raise these issues. His article is definitely worth re-reading, along with the courts' opinions.

In upholding 'three strikes' laws the Supreme Court has allowed states to abandon rehabilitation as a sentencing goal.

California law authorizes severe sentences upon a third conviction, even for minor offenses, for persons previously convicted of two or more serious or violent crimes. The law was enacted by 1994 ballot initiative after the kidnap-murder of Polly Klaas, 12, bye Richard Davis.

Dissenter Stephen G. Breyer scoffed at the idea that the Constitution governs disproportionate bail and fines, but not prison terms. He delivered a long and impassioned denunciation of the ruling in the courtroom yesterday for himself and the three others: Justices John Paul Stevens, David H. Souter and Ruth Bader Ginsburg.

Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, attacked the court's decisions, which he said reinforced "the unhealthy abandonment of rehabilitation" as a criminal justice goal.

"If we are going to discard the hope for rehabilitation, we should do so explicitly and rename every state "Department of Corrections" the "Department of Punishment," said Mr. Goldman, a New York lawyer.

We'll be discussing this on MSNBC at 3:00 pm EST.

We received this from Appellate Law Whiz Peter Goldberger (Ardmore, PA):

The front page of today's Philadelphia Inquirer features a most interesting story about a petition filed in the Supreme Court to reopen a case, decided 50 years ago next week. In US v Reynolds, 345 U.S. 1 (1953), survivors of three people killed in an Air Force plane crash sued the government. In discovery, they sought access to the report of the Air Force's own investigation into the crash. The government resisted, saying they had a privilege based on military secrecy. The Third Circuit upheld the trial judge's order that the government turn the report over to him to see whether the privilege claim was justified, but the Supreme Court reversed, holding the courts could not even question or examine the military's claim. For lack of this evidence, the case was dismissed.

Recently, a grandaughter of one of the victims discovered a website collection of declassified Air Force accident reports, including the one withheld in 1953. Lo and behold, there was no discussion of any military secrets, but it did show the Air Force had concluded that the plane wasn't safe to fly. In other words, the report had been suppressed to protect the Air Force from embarrassment and liability, not to protect the national security, as the government had falsely claimed to the Supreme Court.

The same big, blue-blood Philadelphia law firm which handled the case 50 years ago, has filed a motion to reopen the case in the Supreme Court on the basis of fraud. We will be interested to see what happens.

Meanwhile, perhaps reading the motion will trigger some skepticism when the Court' examines the Fourth Circuit's recent decision in the Yaser Hamdi habeas case -- which also concluded that the judge could not scrutinize or question a conclusory government affidavit (the "Mobbs declaration") asserting that American citizen Yasser Hamdi (or Jose Padilla) can be labeled an "enemy combatant" and then held incommunicado, without access to counsel, indefinitely without court proceedings.

The Court might also have learned this lesson from the later history of the Korematsu and Hirabayashi travesties of 1943. Those cases upheld the Japanese internment program during WWII, based on affidavits from military officers of Japanese-American saboteurs and secret agents. Those affidavits also were false, and the military's own reports contradicting them were destroyed -- all but one copy, as was revealed years later and discussed in the 9th Cir opinion affirming the grant of Hirabayashi's coram nobis petition: Hirabayashi v. US, 828 F.2d 591 (9th Cir. 1987).

Yet another cautionary tale for our day, we'd say. Who remarked that "In war, truth is the first casualty"? Only a fiercely independent judiciary, prompted by independent defense attorneys, can protect us from law based on lies, maintain civilian control over military power, and keep the win-at-any-cost military mentality, which has nothing but contempt for truth and fairness, from destroying our democracy.

Scotus Blog also reorted on Peter's analysis today.

[comments now closed.]

Press Release, National Association of Criminal Defense Lawyers, on today's Supreme Court Decisions:

Decisions symptomatic of ill-advised direction of justice system

Today’s Supreme Court decisions feed wrong-headed punitive frenzy

Washington D.C.—In response to two decisions each in cases addressing Megan’s laws and three-strikes laws by the U.S. Supreme Court today, Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, issued the following statement:

“Today’s Supreme Court decisions reinforce the unhealthy abandonment of rehabilitation as a goal of the criminal justice system. By rubber-stamping the harsh dictates of politically-motivated state legislatures, the Court has upheld life punishments, although of different types, for individuals who have successfully completed their prison terms for sex-related crimes, as in the two Megan’s Law cases, or who have been convicted of only relatively minor crimes, as in the three-strikes cases.

“If we are going to discard the hope for rehabilitation, we should do so explicitly, and rename every state ‘department of corrections’ the ‘department of punishment.’

“A majority of the Supreme Court appears to have forgotten that the Constitution was adopted to protect individuals from the excesses of the state. By its decisions, the Court minimizes the role of the Constitution and indeed its own role as the ultimate protector of our rights.”

"The Supreme Court ruled 6-3 Wednesday that states may put pictures of convicted sex offenders on the Internet, a victory for states that use the Web to warn of potential predators in neighborhoods. In a separate narrow ruling, the court turned back a challenge from offenders who argued they deserved a chance to prove they aren't dangerous to avoid having their pictures and addresses put on the Internet."

"The decisions came in the Supreme Court's first review of what are known as Megan's laws - and have far-reaching implications because every state and the federal government have sex-offender registry laws."

The cases are Connecticut Department of Public Safety v. John Doe, 01-1231, and Otte v. Doe, 01-729. The opinions are available here.

The Connecticut case (9-0 ruling) leaves open a door for a future challenge as it "did not address the constitutionality of requiring offenders to register without holding separate hearings to determine the risk posed by sex criminals who have completed their prison sentences before putting them in a registry."