We reported Tuesday that Attorney General John Ashcroft was rebuked by a federal judge in Detroit for violating a gag order in a terrorism case. The LA Times reports that Ashcroft apologized to the Court.

In a Nov. 26 letter to the court that [Judge] Rosen unsealed Tuesday, Ashcroft said his remarks were "entirely inadvertent," and said he didn't intend to disregard the order or to disrupt the court proceedings.

"I regret making these statements," the attorney general wrote. "I made a mistake in making statements that could have been considered by the court to be a breach of the court's order. And for that I apologize to the court and counsel."

Legal ethics specialists said they could not recall a time when a sitting attorney general was the recipient of professional discipline by a court. "It is extremely unusual for an attorney general to breach an order, and extremely unusual to apologize for it," said Deborah Rhode, a professor of law at Stanford Law School. "It is unusual for this attorney general to apologize for anything connected with national security."

You can read the Judge's Order here (pdf file).

After a three hour hearing in the Detroit terror trial case today, Judge Gerald Rosen said the Government should have provided a letter to the defense that might have impeached the credibility of its star witness. Background on the hearing is here and here.

The Judge didn't rule today, saying he needed to hear more evidence. Several prosecutors testified the letter should have been turned over:

Several Justice Department lawyers on Friday conceded the evidence should have been turned over. And assistant U.S. Attorney Alan Gershel said he ordered Keith Corbett, one of the prosecutors at trial, to turn over the letter from gang leader Milton "Butch" Jones.

In what is being called a "bombshell" in Germany, a German judge today freed 9/11 terror suspect Abdelghani Mzoudi who had been jailed since October, 2002 on charges he was an accessory to 3,066 counts of murder in the 9/11 attacks. The ruling could cause the reversal of the conviction of another suspect who was sentenced to 15 years.

Judge Klaus Ruehle expressed doubt today that the defendant had knowledge of the attacks. "There is the serious possibility that Mzoudi, despite his involvement and his visit to Afghanistan, was deliberately excluded from planning for the attacks and did not consciously provide a supportive role," the judge said, according to Reuters.

By implication, the judge's decision also raised questions about the conviction of another man in the case, Mounir el-Motassadeq, who was sentenced this year to 15 years after being convicted of similar charges. After Judge Ruehle's action to free Mr. Mzoudi, Mr. Motassadeq's lawyers immediately filed papers seeking his release and renewed their appeal of his conviction.

Conservative legal affairs writer Stuart Taylor joins the chorus of those criticizing Attorney General John Ashcroft for his unfair tactics in the Zacarias Moussaoui case:

But Attorney General John Ashcroft seems so eager to kill the man that he would shoot a hole in the Constitution to get him. Ashcroft wants to put Moussaoui on trial for the capital crime of complicity in the 9/11 plot, without letting his lawyers take the testimony of three captured Qaeda leaders who may have told interrogators that Moussaoui did not participate in it. That's the watered-down notion of justice that an Ashcroft subordinate urged a federal appeals court in Richmond, Va., to endorse on December 3.

How will Ashcroft explain this? The convictions of the defendants in the Detroit terror trial held earlier this year are in jeopardy. The Justice Department admits it withheld potentially exculpatory evidence--

The evidence includes a letter from an imprisoned drug gang leader who alleges the government's key witness confided he made up some of his story. The December 2001 letter, which could have been used by defense lawyers to challenge the prosecution witness during the trial this spring, wasn't turned over until a couple of weeks ago. The defendants are now asking that their convictions be overturned, and the judge has scheduled an emergency hearing Friday to demand an explanation from the government.

Under the Supreme Court's Brady v. Maryland ruling, prosecutors are obligated to turn over all evidence that can be used to impeach the testimony of prosecution witnesses or to prove innocence.

The lead prosecutor, Richard Covertino, and another AUSA in the case have been replaced. Covertino's lawyer, former AUSA William Sullivan, acknowledges that his client intentionally withheld the letter.

The hearings against Army Chaplain James Yee hit a stall Tuesday when prosecutors announced they were unsure the papers Yee carried were classified.

Yee was initially stopped by Customs, thought to be a spy and thrown in the navy brig where he was held in solitary for over two months while the Government investigated the documents in his briefcase.

After concluding its investigation, the Government announced it was not filing spy charges against Yee after all, only charges of mishandling classified data, adultery and possession of pornography on his government computer. The Government learned about the adultery and pornography during a review of the documents seized from Yee at the time of his arrest.

Eugene R. Fidell, Captain Yee's civilian defense lawyer, called it disgraceful that his client had been kept in the brig for 76 days for possessing materials that the government still had not determined were classified. Mr. Fidell also said the military should be embarrassed to have tried to proceed with a criminal hearing on the charges without the determination.

Major Sikes [Yee's Military counsel] said he hoped the military would decide to drop the case. He said he believed that the military was pressing ahead as part of an unwise effort to save face over its initial miscalculation.

The Government now says it will conduct a thorough investigation into whether the documents Yee carried at the time of his arrest were classified. The hearing that began Monday will resume January 19.

Shoddy is probably an understatement in describing the Government's handling of Yee's investigation and prosecution.

Update: The Christian Science Monitor examines why the Army's case is falling apart:

A federal Magistrate Judge has disclosed that key documents in the Al-Arian terrorism case in Florida were improperly shredded by court clerks:

Sami Al-Arian, a former professor at the University of South Florida in Tampa, is in jail on charges of funneling money and support from Chicago and Florida to the radical Palestinian group Islamic Jihad.

U.S. Magistrate Thomas McCoun III said in a letter to Al-Arian's lawyers that search warrants used in 1995 in his case were shredded by mistake, casting doubt on the admissibility of some government evidence.

Investigators used the warrants to raid Al-Arian's home, his university office and a think tank with which he was associated. The absence of the court documents could prevent the U.S. government from using as evidence in court the materials they seized from the 1995 search, Linda Moreno, one of Al-Arian's lawyers, said yesterday.

How could this have happened?

In a letter sent Friday from McCoun, a federal magistrate in Tampa, Fla., to Al-Arian's lawyers, who had requested the court documents, McCoun wrote:

"My deputy reports that these original court files no longer exist. ... Clerks in the Tampa division began shredding magistrate judge files more than five years old. ... This shredding included sealed files kept in the court's vault."

Investigators said "volumes" of documents and other materials had been seized from Al-Arian in 1995. Here's more from Al-Arian's attorney on the import of the document destruction:

Ten years. That's tbe sentence imposed on the first of the "Buffalo Six" defendants today. For what?

Mukhtar al-Bakri went to Afganistan and attended a training camp. He heard Osama bin Laden speak there. Then he got married. The day after his wedding, while in Bahrain, he got arrested. Then charged with providing material support to a terrorist organization.

The Government acknowledged it had no evidence that al-Bakri or his confederates planned a terrorist act. What it had was a theory dependent upon guilt by association and perceived thought.

"It's the first time in American history where people are going to prison for going to a training camp," said David D. Cole, a Georgetown University law professor ..... "It's wrong. . . . It's unconstitutional." Cole said he believes that the section of law used to convict the six men is unconstitutional and will be struck down by the U.S. Supreme Court within the next couple of years.

Elaine Cassel, a Virginia lawyer and civil rights advocate, calls the Lackawanna case "one of the worst examples of the vengeful Bush and Ashcroft battle against terrorism." "It's like the movie "Minority Report,' " Cassel said. "The idea is, "Let's go out and arrest people before they actually commit a crime, or even think of a crime.' "

A hollow and ominous victory for Ashcroft.

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The Guardian reports that the Pentagon fired some of the defense lawyers it previously recruited to represent detainees facing military tribunals because they rebelled against the unfair rules:

A former military lawyer with good contacts in the US military legal establishment said that the first group of defence lawyers the Pentagon recruited for Guantanamo balked at the commission rules, which insist, among other restrictions, that the government be allowed to listen in to any conversations between attorney and client.

"There was a circular that went out to military lawyers in the early spring of 2003 which said 'we are looking for volunteers' for defence counsel," said the ex-military lawyer. "There was a selection process, and the people they selected were the right people, they had the right credentials, they were good lawyers.

"The first day, when they were being briefed on the dos and don'ts, at least a couple said: 'You can't impose these restrictions on us because we can't properly represent our clients.' "When the group decided they weren't going to go along, they were relieved. They reported in the morning and got fired that afternoon."

The Pentagon denies the claim, but the Guardian stands by it and further says that the remaining team of six defense lawyers is very dissatisfied with the rules. The Guardian's source says:

The military has conducted a mock tribunal trial at Guantanamo. The exercise even included a defendant who acted out, had to be restrained and then ejected from the proceeding.

Prosecutors played the roles of presiding judge and defense attorneys, while military police played defendants and their own role of providing court security, military sources said.

The 4th Circuit Court of Appeals will hear oral arguments tomorrow in the Zacarias Moussaoui case:

A federal appeals court in Richmond, Va., will hear arguments Wednesday from prosecutors and Moussaoui's court-appointed lawyers over whether the government forfeited its right to seek the death penalty by refusing to produce certain al-Qaida witnesses for his defense.

The larger issue is simple: Does the Government's terror war outweigh a defendant's consitutional rights?

Taking a position that experts say is unprecedented, prosecutors warn that Brinkema's ruling endangers national security by crimping the fight against al Qaeda, allowing terrorism defendants to tie the criminal justice system in knots with similar requests for access to detainees.

....Defense lawyers are sounding a different alarm. They say that by refusing to turn over the witnesses, the government is seeking to turn the Constitution on its head, arguing that the 6th Amendment guarantees defendants the right to interview witnesses on their behalf.

"If a court were to say there is a national security exception to the right to confront witnesses, even when you are subject to the death penalty, that would be staggering," said Stephen Saltzburg, a law professor at George Washington University who has closely followed the Moussaoui case. "There would basically be no limits to what the government could do."

The Fourth Circuit Court of Appeals is viewed as one of the most conservative and pro-Government appeals courts in the country. The three judges who will hear the case are Chief Judge William W. Wilkins Jr. and judges Roger Gregory and Karen Williams. Experts predict the ruling could go either way.

Jeffrey Leon Battle and Patrice Lumumba Ford, two of the seven defendants in the Portland, Oregon terror case, were sentenced today to 18 years in prison.

Ford denounced Bush and his Afghan policiy of "cruise missile diplomacy"at the hearing. Both men stated they intended to protect fellow Muslims. Battle sang a ten minute song he had written in prison, that ended with "Free, free, free, for all humanity, release me."

The Judge was not impressed. He told one of the defendants:

"You do not represent the Muslim faith. Muslims do not engage in the activities you engaged in. You are an insult to that faith."

This is one case we would have liked to have seen litigated. The ACLU and National Association of Criminal Defense Lawyers (NACDL) teamed up to file an Amicus brief in the case challenging the Government's use of the secret FISA court to get wiretaps under the Patriot Act.

the ACLU, joined by the National Association of Criminal Defense Lawyers, says the Justice Department's use of a secret court to get authority for electronic eavesdropping violates constitutional protections of privacy and free speech and against unreasonable searches and seizures.

Defense lawyers in the Portland case have challenged the government's use of secret court-approved wiretaps, the collection of e-mail messages and the planting of microphones in the home of one of the suspects. They claim the covert surveillance approved by a special court under the Foreign Intelligence Surveillance Act, or FISA, should not have been granted in the case because the defendants are not agents of foreign powers, spies or terrorists, as defined in the act.

We think the sentences are too harsh for these defendants, who tried, but failed, to make it to Afganistan. They were turned back from Pakistan and Afghanistan after reaching China. We also think the LA Times was on target when it reported, "... the group "is more suggestive of bumbling, would-be holy warriors than of soldiers training for deadly missions."

The guilty pleas for Ford and Battle avoided the possibility of life sentences, had they been convicted at trial.

A detailed Portland Oregonian article describing the case, legal challenges and positions of the defense is here. Our coverage of the case is available here.