According to the Justice Department, which finally released some numbers after a request of the Associated Press, of the 765 people detained by the Government after September 11, only six remain in custody.

What's in the numbers?

"Almost 500 of the foreign nationals arrested on immigration charges during the FBI's Sept. 11 probe have been deported to their home countries, officials said. An additional 281 were released in the United States and are free or are awaiting determination of their immigration status, authorities said."

"In addition to the 765 people detained on immigration charges, 134 others were arrested on criminal charges and 99 were convicted, according to the new figures. A separate group of more than 300 were taken into custody in the early months of the campaign by state and local law enforcement agencies, the department said."

What's not in the numbers?

The Justice Department won't say how many people have been held or are still being held on material witness warrants. These arrestees are those the Government says it can detain indefinitely while investigating them for terrorism activity without charging them with a crime. Like Jose Padilla and Yaser Hamdi, and who knows how many others.

"Federal officials, citing grand jury secrecy rules, have refused for 15 months to say how many material witnesses have been taken into custody, or to reveal their names or which courts are supervising the cases."

"A review of such cases by The Washington Post last month found that federal authorities had arrested and jailed at least 44 people as material witnesses in connection with the Sept. 11 probe. "

A federal judge has ruled that lawyers for detained "dirty bomb" suspect Jose Padilla can challenge his detention in court.

The ruling is a setback for the Government whose lawyers have been arguing that the Administration's decision to detain suspects as enemy combatants is not subject to judicial review.

The Judge, Michael Mukasey, did not reach the issue of whether Padilla is being detained lawfully, but the decision allows Padilla's defense counsel to seek his release and to meet with him at least until a decision is made.

The decision is a partial victory for the White House as well in that it holds ''The president ... has both constitutional and statutory authority to exercise the powers of commander in chief, including the power to detain unlawful combatants, and it matters not that Padilla is a United States citizen captured on United States soil.''

The full text of the decision is available here.

Via Atrios, the Washingon Post Sunday has an article on enemy combatants and the lesser treatment accorded them by the Bush Administration:

"The Bush administration is developing a parallel legal system in which terrorism suspects -- U.S. citizens and noncitizens alike -- may be investigated, jailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system, lawyers inside and outside the government say."

"The elements of this new system are already familiar from President Bush's orders and his aides' policy statements and legal briefs: indefinite military detention for those designated "enemy combatants," liberal use of "material witness" warrants, counterintelligence-style wiretaps and searches led by law enforcement officials and, for noncitizens, trial by military commissions or deportation after strictly closed hearings. Only now, however, is it becoming clear how these elements could ultimately interact."

How so? Take this example:

"The administration, with approval of the special Foreign Intelligence Surveillance Court, could order a clandestine search of a U.S. citizen's home and, based on the information gathered, secretly declare the citizen an enemy combatant, to be held indefinitely at a U.S. military base. Courts would have very limited authority to second-guess the detention, to the extent that they were aware of it."

Here's two problems with Bush's system: When the Government gets a secret FISA warrant, the subject of the search or wiretap doesn't get a chance to have a federal court review the application for the warrant. And when the Government declares someone an enemy combatant, the Bush plan doesn't allow judicial review of the decision.

We think this is a deplorable stretch of the powers of the Executive branch of Government. In electing Bush as the chief executive, we seem to also have voted to change our name. Why not just reprint the stationary now: The United States of George W. Bush. Our motto has changed as well: By the President, For the President and Against the People.

Who elected this man? Oh, we forgot, no one.

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The Washington Post has an excellent article exposing the Government's use of the material witness statute to indefinitely detain people without filing criminal charges.

The Post conducted a review of 44 cases and found :

"Authorities have arrested and jailed at least 44 people as potential grand jury witnesses in the 14 months of the nationwide terrorism investigation, but nearly half have never been called to testify before a grand jury, according to defense lawyers and others involved in the cases."

"Although they had not been charged with any crimes, these "material witnesses" were often held under maximum security conditions, in detentions ranging from a few days to several months or longer. At least seven of the witnesses were U.S. citizens."

"It is unknown whether these 44 cases represent all material witnesses taken into custody since Sept. 11, 2001, or some fraction of them. Law enforcement officials previously estimated that about two dozen material witnesses were arrested in connection with the probe."

"Criminal defense attorneys and civil liberties advocates argue that the cases show how the government has bent the material witness statute -- originally designed to compel testimony from frightened or recalcitrant witnesses -- into a tool to detain suspects indefinitely while investigating them for possible links to terrorism."

Of all the persons arrested on material witness warrants, only two have been charged with a crime, James Ujaama in Seattle and Zacarias Moussaoui in Virginia. Jose Padilla, the dirty bomb suspect, has been declared an enemy combatant and is being held in a miltary brig without right of counsel. Yaser Hamdi is also being held without charges or access to counsel.

The material witness statute was enacted in 1984. It provides that "prosecutors may seek an arrest warrant if a potential witness's testimony is "material" to a criminal proceeding and the individual is likely to flee. A judge must approve the warrant, and the witness is entitled to a bond hearing and a court-appointed attorney."

The statute, 18 U.S.C. 3144, reads as follows:

Sec. 3144. - Release or detention of a material witness

If it appears from an affidavit filed by a party that the testimony of a person is material in a criminal proceeding, and if it is shown that it may become impracticable to secure the presence of the person by subpoena, a judicial officer may order the arrest of the person and treat the person in accordance with the provisions of section 3142 of this title. No material witness may be detained because of inability to comply with any condition of release if the testimony of such witness can adequately be secured by deposition, and if further detention is not necessary to prevent a failure of justice. Release of a material witness may be delayed for a reasonable period of time until the deposition of the witness can be taken pursuant to the Federal Rules of Criminal Procedure."

"The Justice Department argued before a federal appeals panel today that disclosing the names of hundreds of people arrested on immigration charges after the September 2001 attacks would help terrorists of Al Qaeda figure out how the government was conducting its antiterrorist campaign."

At issue was U.S. District Court Judge Gladys Kessler's ruling in August that "the minimum requirements of democracy obliged the government to disclose who it arrested." The lawsuit was brought by "a broad coalition of civil liberties groups challenging the government's refusal to release the names of those arrested for immigration violations as part of the terrorism investigation."

You can read Judge Kessler's 45 page opinion here.

The Ninth Circuit Court of Appeals has rejected a challenge by Guantanamo detainees filed months ago by a coalition of lawyers, professors and clergy on their behalf. The suit argued that the detainees' prolonged detention violated the due process clause of the U.S. Constitution.

The Court ruled the coalition of "needed to have a preexisting relationship with the detainees or show the prisoners had limited mental or physical capacity that rendered them unable to argue their own case."

The full text of the opininion is available here. A member of the coalition said today it may request a rehearing by the full 9th Circuit panel.

Jonathan Turley has written another article that is highly critical of Ashcroft called Junk Justice. which we found via Thinking Things Through. Here's the essence:

"If there is one legal principle that seems to guide Atty. Gen. John Ashcroft, it is this: Possession is nine-tenths of the law. In holding citizens and noncitizens, Ashcroft has claimed unilateral authority to dictate how and where they will be tried and, most important, executed. In the last few weeks, he has taken this control to a new level, defying states and judges who do not conform to his demands for speedy justice."

"....A military tribunal is designed for quick convictions, little appeal and easy executions. It is the convenience store of junk justice: fast service, cheap products, no substantive value. It now seems that who is and who is not subject to summary tribunal justice is up to the shifting inclinations of Ashcroft, which sometimes appear as arbitrary as his choice of breakfast meat."

"Ashcroft has become a walking contradiction, more general than attorney. Whereas his predecessors viewed the justice system as the very thing that defines us as a nation of laws, Ashcroft views justice as merely one means to an end. As he prepares his list for summary judgment and execution, the American justice system will be the first to be dispatched. "

Well said, Jonathan.

The F.B.I. questioned a 38 year old Malaysian man with a U.S. degree in biochemistry yesterday inside a Malaysian detention camp.

The man is Yazid Sufaat, a Malaysian businessman and former army captain. The camp is in northern Malaysia, which is holding over 65 suspected Muslim militants detained by authorities. Sufaat is suspected of providing employment documents to Zacarias Moussaoui so he could get a U.S. Visa and providing lodging in Kuala Lumpur to two of the alleged 9/11 hijackers.

"Yazid was first spotted by police in January 2000 meeting al-Midhar and al-Hazmi, and is said to have met with Moussaoui in September and October that year. The information was shared with U.S. security agencies at that time. He was finally picked up in December last year while returning to Malaysia via Thailand from Afghanistan. He is being held at Kamunting detention camp under the Internal Security Act, which allows detention without trial. He denies any wrongdoing."

Here's what we're curious about. Sufaat had a lawer at the camp while the FBI questioned him who was either present during the questioning or briefed about it after. Why aren't Hamdi and Padilla and Binalshibh accorded the same right to counsel?

``They're done, that's the end of it,'' Yazid's lawyer told reporters as he drove out of the camp after the FBI had completed questioning his client. ``Basically, they wanted to know how he knew Moussaoui,'' the lawyer Saiful Izham Ramli said, referring to a man set for trial in the United States for conspiracy in the September 11 attacks."

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It was a busy weekend in Chicago. We were at the quarterly board meeting and seminar of the National Association of Criminal Defense Lawyers. Illinois Governor George Ryan was our luncheon speaker on Friday at the Drake Hotel. We presented him with a Champion of Justice award. He spoke about the moratorium on the death penalty, the Commission he appointed to study the Illinois death penalty system and the 85 reforms it recommended, none of which have been implemented by the Illinois legislature, and the clemency hearings held the last two weeks on the 147 or so death row prisoners. He expressed empathy for the victims' families, said he would meet with them if asked, and said he cannot send someone who might have been wrongfully convicted to the execution chamber.

Ryan praised and credited NACDL vice-president Barry Scheck several times. He was very non-pretentious. He brought his wife, they both ate lunch with us. He told us he was a pharmacist before going into elected office, and described the small town where he has lived for a very long time.

No, Ryan is not going to grant blanket clemency to all of the inmates. He is going to decide on a case by case basis. And he said he'll take his time in deciding. He has about 75 days left. When he was done, we all gave him a rousing standing ovation.

Friday night, about 15 of us went to see Bob Dylan. We had second row seats in the center, right in front of Dylan. He was great. If you want to see what he's been playing in every city, go to BobDylan.com. The playlist for every concert is up on the site. He opened with Maggie's Farm, did Tombstone Blues, Just Like a Woman, Lay Lady Lay, the Stones' Brown Sugar, Blowing in the Wind and many more. He switched between keyboard, guitars and harmonica. We could understand his words. We got out about 11, and then all went to Gibson's for dinner, great steaks, till about 1:30 am. (Too late to start blogging or updating the news).

Saturday was our board meeting. We served on the board of Directors the past six years and this year we were elected an Officer (Secretary) of NACDL . It's a lot of work since there are 12,000 direct members and 25,000 affiliate members.

This morning we had two interesting and topical speakers:

The first was James Harrington, lawyer for the defendant in the Buffalo Six case who was granted bail (and is still trying to post it). He said that although he could understand the government's concern because Lackawanna is close to a power plant near Niagra Falls, there is not much evidence against the six.

Harrington criticized the magistrate judge's bail ruling, saying it was wrong on the law, took the worst possible view of the facts, and that it was not a courageous opinion but one that was intellectually dishonest.

The next speaker was Donna Newman, co-counsel for suspected "dirty bomb" defendant Jose Padilla. She recounted all of the events from the day of Padilla's arrest and was highly critical of the Government's actions in the case.

She said the affidavit for the Complaint filed in federal court against Padilla is similar to the one filed for his arrest--it says the Government received information from 2 confidential informants. She said one of the informants has provided false information to the authorities in the past, and the second has since recanted his statements. Newman says there is no probable cause to detain Padilla as there is no probable cause he committed any crime. Seven briefs have been filed by each side in the case.

We ended around 1pm, and that's the update for now. We will check the news later and resume regular posting tomorrow. Thanks for your patience.

"On Monday, a three-judge panel of the Court of Appeals for the Fourth Circuit will hear arguments over the legality of Yaser Hamdi's detention.Mr. Hamdi's case appears to be the first in modern American jurisprudence in which an American citizen has been indefinitely detained without charges and without access to a lawyer. As such, it is emerging as the test case for whether the courts, and possibly the United States Supreme Court, will allow such detentions."

Hady Hassan Omar was held without charges for 73 days in the wake of September 11. He is suing the Federal Government. .

"No one knows exactly how many young Muslim men were rounded up in the aftermath of 9/11. As of November of last year, when federal authorities stopped issuing information on the subject, the tally was 1,147. What is known is that thus far, of those initial 1,147 arrests, only 3 have resulted in terrorism-related indictments, and more than 400 people have been deported following lengthy internment periods and closed hearings. At issue is the key question lawmakers have been grappling with since the attacks on the World Trade Center and the Pentagon: just how far can America go to protect itself, both at home and abroad?"

"...as time passes since the trauma of Sept. 11, the cost to individual rights is beginning to come into focus. David Cole, a Georgetown University law professor, argues that ''the policy of keeping people in jail until the F.B.I. clears them is essentially 'guilty until proven innocent.' Anthony Romero, executive director of the American Civil Liberties Union, agrees. ''It's fundamentally un-American,'' he says. ''What's most troubling is that the American public is being kept in the dark about what is being done in the name of the war on terror.'' The A.C.L.U. has sued under the Freedom of Information Act to obtain the names of some of the detainees."

"In New York, a class-action suit filed in April on behalf of at least 87 detainees, separate from the A.C.L.U. suit, accuses the Justice Department of wholesale violations of the constitutional rights to which both American citizens and noncitizens in the United States are entitled. Several rulings by federal judges over the past few months indicate that the detainees could get a sympathetic hearing."

This is a long article in today's New York Times Magazine with an in-depth look at the issue, using the case of Omar as an example. It's well worth reading.

The lawyer for the Saudi prisoners at Guantanamo Bay said today that 200 Saudi prisoners will be released.

"The lawyer for Saudi prisoners held at the U.S. detention center at Guantanamo Bay said Wednesday some 200 Saudi inmates will be released soon for lack of evidence linking them to Osama bin Laden's al Qaida network."

Lawyer Najib Noaimi said that a total of 300 inmates are scheduled to be released, the majority of whom are teachers and social workers in Afganistan. The Government has said a total of 600 prisoners have been held at Guantanamo.