by James Oliphant

Looking for the shape of things to come after the first day of the trial of accused al Qaeda operative Salim Ahmed Hamdan at Guantanamo Bay?

How about the ruling by the military officer overseeing the proceedings that prosecutors could not use statements made by Hamdan while he was a prisoner in Afghanistan?

It could be the kind of game-changer that the administration fears.

Hamdan is a relatively minor player by terrorist standards. He is not considered a "high-value" detainee by the Pentagon. Basically, he drove Osama bin Laden around Afghanistan and perhaps, as the government alleges, transported some weapons from place to place.

But his trial, the first under the military commission framework created by the Bush administration to try the accused terrorists at Guantanamo Bay, offers an opportunity to see how this style of justice plays out. It's the first war crimes trial prosecuted by the United States since World War II.

by Frank James

It seems like ancient history, the shock heard round the world when Justin Timberlake exposed Janet Jackson's breast during the 2004 Super Bowl in that infamous "wardrobe malfunction."

It certainly was such an affront to the regulators at the Federal Communications Commission whose job in part is to protect Americans from such lewdness that they fined CBS $550,000 for violating FCC indecency standards.

CBS sued and it appears that was a good move because the Philadelphia-based Federal Appeals Court for the Third Circuit ruled today that the FCC was wrong.

The court bought a number of CBS's arguments that the FCC erred.

It agreed with CBS's lawyers by saying the agency appeared to change its enforcement procedures in midstream, resulting in arbitrariness in how the FCC threw the book at CBS.

The FCC, which has long been accused of laxity in enforcing its indecency standards, had essentially ignored for years what it called "fleeting" foulness, like when Bono said at a Golden Globe Awards broadcast that U2's receipt of the award was "(bleeping) brilliant."

By that standard, Jackson's naked breast should have been no big deal since it was about as brief a glimpse of an exposed breast as could be detected by the human eye. The legal record in the case established that her bare ta-ta was exposed for just nine-sixteenths of a second.

by Katie Fretland

The House Judiciary Committee has subpoenaed Attorney General Michael Mukasey to turn over documents relating to the leak of CIA agent Valerie Plame's identity -- the case that led to the conviction of former Cheney chief of staff Scooter Libby on perjury and obstruction charges.

The House panel seeks to find out whether President Bush or Vice President Dick Cheney had any role in the leak of the covert operative's identity to several journalists.

House Judiciary Committee Chairman John Conyers said the subpoena is warranted in light of many prior requests for the documents. In the subpoena, Conyers asks for complete transcripts of interviews with Bush and Cheney. Conyers also asks for the complete FBI interview reports with Libby, former Bush advisor Karl Rove, former White House Press Secretary Scott McClellan, former Bush counselor Dan Bartlett and former White House Chief of Staff Andrew Card.

McClellan has said the administration leaked Plame's identity in an effort to discredit her husband, former Ambassador Joseph Wilson, who criticized Bush on the Iraq war. Former deputy secretary of State Richard Armitage first leaked Plame's identity to columnist Robert Novak.

The subpoena also asks for documents relating to other cases, including an investigation into the jamming of telephones at the New Hampshire Democratic party in 2002 and the replacement of Tom Heffelfinger in the position of U.S. Attorney for the District of Minnesota.

To see a copy of the subpoena click here: Conyers.pdf

(Photo credit: Associated Press)

by Matthew Hay Brown

With a ruling today by its highest court, California has rejoined Massachusetts as the only states to allow same-sex marriage.

"Our state now recognizes that an individual's capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual's sexual orientation," the California Supreme Court ruled in a 4-3 opinion that overturned a voter-approved ban on gay marriage.

Six of the seven members of the court are Republicans. Outside the courthouse, gay marriage supporters cried and cheered as news spread of the decision, the Associated Press reports.

Two dozen same-sex couples joined rights groups and the City of San Francisco in a lawsuit four years ago after the court halted weddings performed in San Francisco.

"Today the California Supreme Court took a giant leap to ensure that everybody -- not just in the state of California, but throughout the country -- will have equal treatment under the law," City Attorney Dennis Herrera, who argued the case for San Francisco, told the AP.

Gov. Arnold Schwarzenegger said he respected and would uphold the ruling.

"Also, as I have said in the past, I will not support an amendment to the constitution that would overturn this state Supreme Court ruling," he said.

by Matthew Hay Brown

Maryland's highest court has rejected a Pakastani man's attempt to invoke talaq, the Islamic divorce that enables a man to dissolve his marriage by telling his wife "I divorce thee" three times.

Farah Aleem already had filed for divorce in Montgomery County Circuit Court in 2003 when her husband went to the Pakstiani Embassy in Washington to invoke the talaq.

By doing so, World Bank economist Irfan Aleem argued, he ended the marriage and did not owe his wife a share of his assets, valued at $2 million.

The state Court of Appeals disagreed.

"If we were to affirm the use of talaq, controlled as it is by the husband, a wife, a resident of this state, would never be able to consummate a divorce action filed by her in which she seeks a division of marital property," the judges ruled.

The talaq, they wrote, "directly deprives the wife of the due process she is entitled to when she initiates divorce litigation."

Nick Madigan of The Baltimore Sun has the rest of the story, after the jump.

by James Oliphant

Yes, we have to go here.

Maybe you expected more of us at The Swamp. Maybe you thought a major development could occur in the continuing adventures of Eliot Spitzer's former on-call paramour, Ashley Alexandra Dupre, and we would simply let it pass unremarked, allowing this sordid tale to die the death it deserves.

You would be wrong. Besides, this is just too good.

Dupre is suing the producers behind "Girls Gone Wild" for exploiting her. After her intimate encounter with the former New York governor went public, the makers of popular DVD series, which features intoxicated, exhibitionistic young women on display for the amusement of couch-bound, socially awkward men, discovered they had rolls of footage of AAD in the can from Spring Break 2003 in Florida.

In fact, it appears Dupre spent an entire week on the Girls Gone Wild Bus.

by James Oliphant

One thing we now know for sure: The going rate for professional sex is a heckuva lot cheaper in Michigan than on the East Coast.

We know this because the husband of Sen. Debbie Stabenow (D-MI) was caught in a prostitution bust last month, the Detroit News reported today.

Police say Thomas L. Athans, the founder of Democracy Radio, a liberal-progressive network, was nabbed Feb, 27 in a Residence Inn in Troy, MI, a suburb of Detroit. According to police, Athans paid a 20-year-old prostitute $150 for sex in a Troy hotel but was not arrested. Officers observed Athans enter a room under surveillance and leave 15 minutes later. Detectives followed and stopped Athans' silver 2002 Cadillac DeVille near the intersection of I-75 and, um, Big Beaver Road.

(Sen. Debbie Stabenow (D-Mich.) pictured with husband Thomas Athans at an election night rally in Detroit, Nov. 7, 2006. AP Photo/Paul Sancya)

Andrew Zajac

A Chicago federal judge has told Illinois Gov. Rod Blagojevich that he can't sit indefinitely on pardon applications.

Ruling in a suit brought by ten felons seeking executive clemency, Judge Joan Gotschall said the Illinois constitution requires that the governor shall decide each application, thus requiring him to make decisions "within a reasonable period of time."

Seven of the plaintiffs in case have already had their applications rejected by Blagojevich. But Gotschall dismissed their claim that the governor's adverse decisions were retaliation for filing the suit.

Here's Gotschall's decision: Download file

The use of state and federal pardon powers is of growing interest to lawyers and advocates of prisoners because of the sheer numbers of people who have been imprisoned and who face eventual re-entry into society with blots on their records.

by James Oliphant

Okay, admit, feeling a little strung out from Clinton (Rezko! Commander in Chief!) and Obama (Tax returns! Flip flopper!). Need a breather?

Maybe it's just me.

Anyway, let's take a break and get back to the only real story of the week.

Yep, that's right. Eliot Spitzer's prostitute, the fulsome Ashley Alexandra Dupre.

Ms. Dupre became notorious this week. But her 15 minutes is ticking. And as these stories always go. There's a brother. And the brother's in trouble.

From the Associated Press:

Kyle Youmans, brother of the woman known as Ashley Alexander Dupre, pleaded guilty this week to possession of heroin with intent to distribute.

He's scheduled to be sentenced next month.

Youmans is already serving five years' probation on charges that include intent to distribute heroin in a school zone.

**************
Heroin? School zone? This family, it's like something from "Scarface."

It should all make some future Sunday evening interesting when Ashley brings Eliot over for dinner.

by James Oliphant

"Kristen," the so-called "high-class" call girl who brought down Eliot Spitzer, was outed this morning by the New York papers.

She's Ashley Alexandra Dupre, a 22-year old runaway from New Jersey and aspiring R&B singer, who, in her own words, has battled homelessness and drug addiction. The New York Times apparently tracked her down after she appeared as a witness Wednesday in the federal prosecution of the Emperor's Club.

The NYT linked to Dupre's MySpace page, which we tried to do as well, but at 11:55 a.m, her page went down, with a message that read the user had canceled her membership. At the time, her page had been viewed almost 500,000 times.

Dupre, who the Times is saying is holed up in her apartment hiding from the media (good luck), has posted a status message on her page that says more than all the scandal-heated commentary you've read put together: "What destroys me, strengthens me."

Her last blog entry, from last summer, was in its own way, prescient about her involvement with the governor of New York:

Surround yourself around people that are making moves, and doing what "they want and love" with their lives, positive energy...thats what life is all about...living. Because if you dont, misery loves company, they will only try to bring you down with them...but the question is, are you strong enough, to not let that happen?

Its hard to see if you let it get to that point...

...and then from all those answers you have to decide if that person is worthy of being a part of "your" life....because it is your life, your show...you decide who you want the characters to be...not the other way around. Every person is different, every person has their voice...can you recognize your voice, listen to it, and stick up for it??

Dupre's friends are rallying to her defense, admittedly in their own vernacular:

by James Oliphant

In response to rampant media speculation, the U.S. attorney in Manhattan, Michael Garcia, has just released a statement regarding the resignation of Eliot Spitzer.

"There is no agreement between this Office and Governor Eliot Spitzer, relating to his resignation or any other matter," Garcia said.

There had been reports that Spitzer was in talks with prosecutors from the Southern District of New York about whether he might resign as part of a plea deal. But if that's true, there is no deal yet in place. And since Spitzer has just tossed in perhaps his greatest bargaining chip, there may be no deal in the offing, at least for now.

As noted below, Spitzer entered the room where he announced his resignation accompanied not only by his wife, Silda, but his lawyers, including the high-powered criminal defense attorney Ted Wells. Sometimes the most value a skilled defense lawyer can have is in warding off an indictment before one ever comes.

Wells will be working overtime.

Spitzer is fortunate he is independently wealthy.

by James Oliphant

Buck up, Eliot Spitzer. There's hope.

You aren't the first politician to be caught (spectacularly, we might add) in a compromising position. Witness the very man that CNN trotted out this morning to serve as a legal expert on your plight.

That man, on CNN;s Newsroom Tuesday, was Kendall Coffey, a Miami criminal defense lawyer and former U.S attorney. Coffey opined that as much trouble as the New York governor is in at the moment, it will only grow worse if it's discovered that Client 9 used public money for any part of his D.C. venture, including shipping the now-notorious Kristen down from the Big Apple on the train.

Coffey should know. What was not mentioned on CNN was that a little over a decade ago, he lost his job as U.S. attorney in Miami after it was discovered he had attended a late-night Miami strip club called Lipstik. There, despondent over a not guilty veridict in a big drug prosecution, he got quite drunk and went off into the back "champagne room" with a stripper named Tiffany. There, he reportedly grew a bit frisky and, uh, bit her. On the arm.

As it turned out, Coffey had also bought a $900 bottle of Dom Perignon and $200 in "Lipstik money" on his federal government American Express card.

The story eventually spilled out in the media. Coffey denied it all at first but ultimately resigned after investigators from Washington got involved.

But from there, it's been all good news for Coffey. He salvaged his reputation (Miami is a very forgiving place, largely because it's difficult for anyone to keep the moral high ground for very long) to become one of the top lawyers in town. He was involved in the Elian Gonzales episode, went on to become a member of the Al Gore legal team in the Florida recount and has since fashioned a high-profile career both as a litigator and as a legal analyst for CNN, Fox, MSNBC and Telemundo.

So, keep the faith, governor. If you have to resign, there are always options. For instance, you could always pack up and move to South Florida.

(Photo above of Kendall Coffey, who represented Sen. Bill Nelson (D-Fla.) in a suit against the Democratic National Committee over Florida's denied convention delegates -- shown here after a federal court threw it out. (AP Photo by the Tallahassee Democrat's Bill Cotterell)

Room 871 at Washington's Mayflower Hotel, where "Client No. 9" had a date with the Emperors Club on the day before Valentine's Day. Photo from Newsday, via the Washington Examiner:

by John Riley

Newsday's "Spin Cycle'' offers this account from the federal complaint against the Emperors Club which is believed to have ensnared Gov. Eliot Spitzer of New York, reportedly Client No. 9:

From the affidavit, a prostitute known as Kristen, after her meeting with Client 9, who has been identified in news reports as Spitzer:

"I don't think he's difficult. ... I'm here for a purpose. I know what my purpose is. I am not a moron, you know what I mean? ... Let's not get it twisted. I know what I do, you know."

Emperor's Club agent Rachelle Lewis: Says she has heard Client 9 "would ask you to do things that like, you might not think were safe -- you know -- I mean that ... very basic things."

Kristen: "I have a way of dealing with that. I'd be like listen dude, you really want the sex?... You know what I mean."

Spitzer, the New York Times has reported, set up a liaison with a prostitute at the Mayflower Hotel in Washington. If the prostitute was crossing state lines, Spitzer could be under investigation for a violation of the Mann Act, which prohibits interstate transportation for the purposes of prostitution.

See the court filing here: Download file

by James Oliphant

The Senate today unanimously confirmed the nomination of Robert Dow as a federal judge for the Northern District of Illinois.

Dow, a telecommunications lawyer at the Chicago firm of Mayer Brown, was suggested to the White House by Rep. Dennis Hastert (R-Ill.), but with the support of Illinois Sens. Dick Durbin and Barack Obama. That bipartisan endorsement paved the way for Dow’s easy confirmation.

“Robert Dow is a highly respected lawyer, well known for his keen intellect, good judgment and excellent temperament,” Durbin said in a statement Tuesday. “I believe he will make a fine judge and I am pleased that he was confirmed today by the full Senate.”

In a statement, Obama added: “Mr. Dow has demonstrated a strong personal commitment to pro bono work and public service, both of which will suit him well as a federal judge.”

Dow lives in Joliet, IL, with his wife and four children.

A dog federal agents found on Michael Vick's Virginia property. Photo by Joe Fudge/ Newport News Daily Press.

by James Oliphant

In court documents filed today, disgraced Atlanta Falcons quarterback Michael Vick admitted to killing dogs as part of a dogfighting ring in southeastern Virginia. He also said he provided most of the funding for the operation and the gambling that went with it.

Vick, who was also indicted under his dogfighting nickname "Ookie," however denied that he himself wagered on the dogs or was involved in taking side bets. That fact could be crucial when Vick is separately punished by the National Football League for his conduct.

Vick is expected to plead guily to a conspiracy charge related to the dogfighting ring in a Richmond federal court on Monday. He could receive a year to 18 months in prison.

Here is a link to the story on chicagotribune.com.

(Vick AP Photo/Haraz N. Ghanbari)

by William Neikirk

The first president named George--Washington, that is--issued the first pardon. He did it for the non-indicted participants in the Whiskey Rebellion in 1794. It helped quell passions over his government's decision to crush a protest over whiskey taxes.

Now the current president named George--Bush, that is--is holding the door open to pardoning a close aide (Scooter Libby) for lying to government investigators in a probe about leaking the name of a CIA operative whose husband had openly challenged the president's Iraqi war policy.

The prospect of a pardon for Libby, whose sentence has already been commuted by Bush, is not quelling passions. It is doing the opposite. Indeed, the president's constitutional power to pardon individuals has had a checkered past, and often has spurred more controversy than healing.

by William Neikirk

In the political storm created by President Bush's decision to commute Scooter Libby's sentence for lying to federal investigators, it should be remembered that only one person has served any time in this case: A journalist, Judy Miller, formerly of the New York Times.

She was incarcerated for 85 days for refusing to provide prosecutor Patrick Fitzgerald the name of her source (Libby) in the celebrated incident that led to the naming of CIA operative Valerie Plame. Many journalists criticize Miller's reporting techniques and some of her stories, but most say she should have been able to keep her source confidential without going to jail.

On this Independence Day, the lack of a federal shield law for journalists is a huge issue in the newsgathering business. Some fear that the real impact of the Libby case will be a chilling effect on the practice of using sources (or whistleblowers, if you will) to provide information the public