The New York Times sums up the Zacarias Moussaoui situation perfectly in its Monday editorial:

Allowing the government to deny access to Mr. bin al-Shibh with impunity would set the dangerous precedent that important constitutional rights can be taken away in terrorism cases. It is not at all clear that allowing Mr. Moussaoui to question Mr. bin al-Shibh in carefully monitored circumstances would threaten national security. If the Justice Department is convinced it would, it can adjust the charges against Mr. Moussaoui so Mr. bin al-Shibh's testimony is no longer necessary.

The government has put Judge Brinkema in a bind by suggesting that if it does not like her rulings it will simply transfer Mr. Moussaoui's case to a military tribunal. Tribunals must not become an end run around two centuries of constitutional law. And in any case, it is far from certain that the Supreme Court would allow tribunals to convict people without according them the rights guaranteed by the Sixth Amendment. The war on terrorism has not repealed the Constitution, and Judge Brinkema must ensure that it applies fully in Mr. Moussaoui's case.

Update: Elaine Cassel has more on why the Government is putting up such a ruckus about Moussaoui while not (as yet) transferring him to military custody, including this thought:

The government is counting on the 4th Circuit Court of Appeals, the very-right leaning review court that is likely to agree with the government, to overrule Brinkema, forcing her to throw out the Constitution as her guidebook whenever the government says it is irrelevant.

How does the Government know when a lawyer defending a terrorist has crossed the line and become a terrorist herself? The short answer is, it doesn't.

Ashcroft's prosecutor thought he had an answer for the Judge in the Lynne Stewart case.

Where,[the Judge] asked at a hearing in June, is the line between constitutionally protected political activity and criminal conduct?

"You know it when you see it, your honor," the prosecutor, Christopher J. Morvillo, replied.

That struck Judge Koeltl as dangerously inadequate. Last week, he threw out two terrorism counts against the lawyer, Lynne Stewart, holding that Justice Potter Stewart's famous remark about pornography — "I know it when I see it" — cannot be the standard for imprisoning people.

With the war on terror, the new darling of the prosecutor's nursery has become the law that prohibits providing material support to terrorists. Ashcroft has brought the charge in just about every case Justice has filed. Think, John Walker Lindh, the Buffalo Six, James Ujaama, the Oregon Six (now seven, with Mike Hawash added a few months ago,) the shoe bomber, Zacarias Moussaoui, the Detroit four, Florida professor Sami Al-Arian....and more.

Judge Koetel is not the first Judge to rule the statute unconsitutionally vague for failing to give notice of what is prohibited. In 2000, 9th Circuit Judge Alex Kozinski wrote that the 1996 version of the law was impermissibly vague, criminalizing political advocacy, in Humanitarian Law Project v Reno .

As Georgetown Law Professor and civil liberties expert David Cole points out in today's New York Times article:

"There is a reason that this statute has been a linchpin in the post-9/11 war on terror. "It does not require the government to prove any actual connection to terrorist conduct but instead allows it to rely on guilty by association."

Eric Freedman, another law professor and expert, says:

"The government's position that one can be locked up for decades for expressions of political positions on the telephone amounts to simple thought control."

The Lynne Stewart decision is a big blow to Ashcroft and the Administration. Professor Cole calls it a "milestone."

"It's the first decision throwing out a criminal indictment," Professor Cole said, "and it's the first case after 9/11 to criticize it."

Our full coverage of the Lynne Stewart case is here. Our protests against the whosale use of the material support statute are here.

New Nat Hentoff column up today--on the Yaser Hamdi case and the adverse 4th Circuit decision. Hentoff opens with a great quote from a dissenting judge in the Hamdi case:

Courts have no higher duty than protection of the individual freedoms guaranteed by our Constitution. This is especially true in time of war, when our carefully crafted system of checks and balances must accommodate the vital needs of national security while guarding the liberties the Constitution promises all citizens. —Fourth Circuit Court of Appeals judge Diana Gribbon Motz, dissenting, Hamdi v. Rumsfeld, July 9

He ends with this sobering thought:

In the January 9 New York Times, Elisa Massimino of the Lawyers Committee for Human Rights exposed an earlier decision by a panel of the Fourth Circuit to bow to Bush and to continue the stripping of Hamdi's citizen's rights. "[The Fourth Circuit] seems to be saying that it has no role whatsoever in overseeing the administration's conduct of the war on terrorism . . . the beginning and end of which is left solely to the president's discretion."

Now, the full Fourth Circuit bench has handed George W. Bush the crown that George Washington disdained. What if the Supreme Court agrees? Bush will be King George IV.

Sami Al-Arian, the Tampa professor charged with terrorism crimes, is going the route of Zacarias Moussaoui and demanding to proceed pro se--i.e., acting as his own counsel. He has fired his court appointed attorney.

The Judge urged him to reconsider. We would too. Al-Arian is trying to get the money together to hire Washington, D.C. defense lawyer (and former NACDL President Bill Moffitt. Moffitt is partners with Hank Asbill, and both are terrific lawyers. We hope Al-Arian can raise the money for them. The alternative, self-representation, is not very promising.

Here is the 77 page opinion dismissing the terrorism counts against New York lawyer Lynne Stewart. Civil Liberties expert Elaine Cassal provides her take on the decision. She begins,

John Ashcroft must be tearing out his primly coiffed hair about now. On July 21, Federal District Judge John G. Koeltl (Southern District of New York) dismissed the terrorist charges against New York attorney Lynne Stewart. In a 77-page opinion, Judge Koeltl agreed with famed civil rights attorney Michael Tigar's argument that the anti-terrorist act under which she was charged was overly vague as applied to attorney speech and conduct related to client representation.

Here are the details of the Lynne Stewart case. Our coverage of the case is here. Here's one of the reasons we think the case is chilling.

In Counterpunch, David Lindorff writes Ashcroft Rebuked: Lynne Stewart's Big Win

The National Law Journal provides this in-depth analysis of the Judge's decision.

In Counterpunch, David Lindorff writes Ashcroft Rebuked: Lynne Stewart's Big Win

Two British citizens being held at Guantamo Bay and facing military tribunals received assurances from the Bush Administration today that they will not face the death penalty.

The agreement was announced by Lord Goldsmith, Britain's Attorney General.

Goldsmith also reported "significant progress" in other areas, saying in a statement that U.S. officials had agreed to allow the British defendants to choose their own U.S. civilian lawyers, use British lawyers as consultants and speak confidentially with their attorneys. More contact with families and immediate visits by British officials were also promised, as were public trials, he said.

While this sounds like a good beginning to us, the lawyers and families of the two Britons complain that the agreement doesn't go far enough:

Louise Christian, a British lawyer representing Abbasi's mother, said: "It's no good. It's still a military commission. It's still a trial in front of people who are not independent of the U.S. government." She pointed out that British lawyers acting as "consultants" would not necessarily be able to see their clients or even the evidence firsthand.

A federal judge has dismissed two counts of the terrorism Indictment against criminal defense attorney Lynne Stewart. Stewart is represented by Michael Tigar.

The Judge found the conspiracy to commit terrorism statute unconsitutionally vague. Stewart is still facing charges of conspiracy to defraud the Government and making false statements.

Stewart was charged last year with helping deliver messages from her client, Sheik Omar Abdel-Rahman, who is serving a life sentence for conspiring to blow up New York City landmarks and assassinate Egyptian President Hosni Mubarak.

Prosecutors say she and co-defendants Mohammed Yousry, an Arabic translator, and Ahmed Abdel Sattar, a U.S. postal worker, helped relay messages from the blind Egyptian cleric to the Islamic Group, a radical Egyptian-based terrorist group.

Here are the details of the Lynne Stewart case. Our coverage of the case is here. Here's one of the reasons we think the case is chilling.

Update: The National Law Journal provides this in-depth analysis of the Judge's decision.

Findlaw columnist Joanne Mariner raises an intriguing issue about the future of the Zacarias Moussaoui proceedings. If his federal case is dismissed due to the Government's refusal to comply with a court order directing it to make Ramzi Binalshibh available for an interview, he is likely to have his case transferred to a military tribunal.

Moussaoui is a french citizen. The French oppose the death penalty. When Britain complained about two of its citizens being tried by American military tribunals, Bush backed down and ordered proceedings stayed while he reconsiders. But Britain was our ally in the Iraq war. France is not. Do you think Bush will accord French citizens the same respect?

While the decision to reconsider the proceedings is good news for the British and Australians, its message to the rest of the world is provocatively clear. Military commissions are not fit for our own people; they may not be suitable for our close allies; but they're good enough for everybody else.

...To the extent that a defendant's nationality now determines the quality of justice due him, Moussaoui - citizen of a country that, notoriously, did not support the U.S. war on Iraq - loses out.

But in making this choice, the Administration should be aware of its ultimate consequences. If Moussaoui, without having had access to potentially exculpatory testimony, were to be sentenced to death by a military tribunal, France would not be alone in condemning the United States. The entire world would condemn the proceedings, and rightly so.

Very rightly so, thanks, Joanne.

Britain has announced that it has convinced the Bush Administration to suspend the military trials of 2 British subjects.

White House statement issued from President Bush's ranch in Crawford, Texas, said Washington had suspended proceedings against the two Britons and that no proceedings would be started against any Australian nationals before consultations with Canberra.

Campaigners urged Britain's Attorney General Lord Goldsmith to take a firm line.

"No lawyer can possibly concede that the military tribunal can be a solution when the Commander in Chief has prejudiced the tribunal by his remarks in front of mass television," said Stephen Jakobi of Fair Trials Abroad.

Bush said at a news conference on Sunday: "The only thing that I know for certain is that these are bad people."

In other detainee related news, 37 prisoners at Guantanamo have been released.

Here's more on why civilian lawyers are reluctant to participate in the Administration's planned military tribunals.

The military is detaining nearly 700 people with alleged ties to the Taliban, al-Qaida or other terrorist groups, primarily at the Guantanamo Bay Naval Base in Cuba.

Some lawyers are concluding that it may not be practical–or even ethical–for them to represent defendants before the military commissions because of the limitations imposed by the rules. "These restrictions in essence eviscerate the right of defendants to civilian counsel," says David P. Sheldon, a Washington, D.C., lawyer who has been practicing military law for more than a decade.

Having only limited participation by civilian defense lawyers could be bad for the overall process, as well as specific defendants, says Neal R. Sonnett of Miami, who chairs the ABA Task Force on Treatment of Enemy Combatants. "The inclusion of competent civilian defense counsel would go a long way to helping add credibility to these courts," he says.

A federal judge in Chicago has dealt the Justice Department a stinging blow in yet another case it had promoted as one involving terrorist activities.

In a sharp blow to the government, a judge refused Thursday to add as much as a dozen years to the sentence of an Islamic charity director linked to Osama bin Laden, saying his racketeering offense was not a crime of terrorism.

Enaam Arnaout, 41, would have been sentenced to 20 years under federal guidelines calling for tougher prison terms for those convicted of terrorism offenses.

Judge Suzanne B. Conlon ruled, however, that the terrorism guideline does not apply in Arnaout's case. He was not convicted of a terrorism offense, she said, "Nor does the record reflect that he attempted, participated in, or conspired to commit any act of terrorism."

Defense attorney Joseph Duffy said the decision "pretty much vindicates what the defense has claimed from the inception, and that is that neither he nor his charity had anything to do with terrorism."