In the case of U.S. v. Sebastien Boucher, federal prosecutors think that the defendant has child pornography encrypted with PGP (Pretty Good Privacy) on his Alienware laptop. They sent him a grand jury subpoena demanding the passphrase--which is what a judge rejected on Fifth Amendment grounds.

"I won't be able to provide anyone for an interview," said DOJ spokesman Jaclyn Lesch. "The point you raise is one that we would want to address in court. I hope you understand."

We had asked the DOJ this: "In the DOJ's view, under what circumstances can a person be legally compelled to turn over an encryption passphrase?"

In one view, which prosecutors tend to share, a passphrase is like a document or key that must be forcibly turned over. The civil libertarian view treats a passphrase as the contents of someone's mind, which a defendant cannot be compelled to divulge.

The distinctions between these views are important to Americans' privacy rights and law enforcement needs. Unfortunately, we'll have to wait for future legal filings to find out what our public servants actually think.

The Justice Department says it needs time and the freedom to probe the destruction of hundreds of hours of recordings of two suspected terrorists. After Attorney General Michael Mukasey refused congressional demands for information Friday, the Justice Department filed late-night court documents urging a federal judge not to begin his own inquiry.

The administration argued it was not obligated to preserve the videotapes and told U.S. District Judge Henry H. Kennedy that demanding information about them "could potentially complicate the ongoing efforts to arrive at a full factual understanding of the matter."

The documents represent the first time the government has addressed the issue in court. In the papers, acting Assistant Attorney General Jeffrey S. Bucholtz said Kennedy lacked jurisdiction and he expressed concern that the judge might order CIA officials to testify.

Congressional inquiries and criminal investigations frequently overlap and it is not uncommon for the Justice Department to ask lawmakers to ease off. The request for the court to stand down is more unusual. Judges take seriously even the suggestion that evidence was destroyed, but they also are reluctant to wade into political debates.

Legal experts say it will be up to Mukasey, a former judge who only recently took over as the nation's chief law enforcer, to reassure Congress and the courts during his first high-profile test.

"We're going to find out if the trust Congress put in Attorney General Mukasey was well placed," said Pepperdine Law professor Douglas W. Kmiec, who served in the Justice Department during the Reagan administration. "It's hard to know on the surface whether this is obstruction or an advancement of a legitimate inquiry."

Kennedy ordered the administration in June 2005 to safeguard "all evidence and information regarding the torture, mistreatment, and abuse of detainees now at the United States Naval Base at Guantanamo Bay."

Five months later, the CIA destroyed the interrogation videos, which involved suspected terrorists Abu Zubaydah and Abd al-Rahim al-Nashiri

Bucholtz argued that the tapes were not covered by Kennedy's court order because Zubaydah and al-Nashiri were not at the Guantanamo military prison in Cuba. The men were being held overseas in a network of secret CIA prisons. By the time President Bush acknowledged the existence of those prisons and the prisoners were transferred to Guantanamo, the tapes had been destroyed.

Lawmakers had reacted angrily to Mukasey's refusal Friday to give Congress details of the administration's investigation. He explained that doing so could raise questions about whether the inquiry was vulnerable to political pressure and said his department generally does not release information on pending cases.

"It's clear that there's more to this story than we have been told, and it is unfortunate that we are being prevented from learning the facts. The executive branch can't be trusted to oversee itself," according to a statement by the leaders of the House Intelligence Committee, Reps. Silvestre Reyes, D-Texas, and Pete Hoekstra, R-Mich.

They said "parallel investigations occur all of the time, and there is no basis upon which the attorney general can stand in the way of our work." Mukasey's decision, lawmakers said, blocks congressional oversight of his department.

David Remes, a lawyer who represents a Yemeni national and other detainees, has called for a court hearing. He says the government was required to keep the tapes and he wants to be sure other evidence is not being destroyed.

Even if Kennedy agrees that the government did not violate his order, he still could schedule a hearing. He could raise questions about obstruction or spoliation, a legal term for the destruction of evidence in "pending or reasonably foreseeable litigation."

Those are serious matters, but Kennedy does not necessarily have to hold a hearing right away, said K. Lee Blalack, a Washington defense lawyer and former counsel to a Senate investigative committee.

"If the department takes six months on this and reports back, nothing prevents the judge from taking up the issue then," Blalack said.

Kmiec said much will depend on how much confidence Kennedy has in the Justice Department. The judge also might order a private hearing to protect national security, Kmiec said.

Zubaydah was the first high-value detainee taken by the CIA in 2002. He told his interrogators about alleged Sept. 11 accomplice Ramzi Binalshibh, and the two men's confessions also led to the capture of Khalid Sheikh Mohammed, who the U.S. government said was the mastermind behind the terrorist attacks.

Al-Nashiri is the alleged coordinator of the 2000 suicide attack on the USS Cole in Yemen, which killed 17 sailors. Like Zubaydah, he is now at Guantanamo.

U.S. Rep. Jim McDermott says he's disappointed the U.S. Supreme Court has declined to consider his appeal.

He says he believes he had a First Amendment free speech case.

Today's decision leaves a federal appeals court ruling in place. The court said that McDermott should not have leaked a tape-recorded phone call to newspapers. It recorded Republican leaders in 1996 discussing the ethics case against former House Speaker Newt Gingrich.

The ruling upholds a previous decision ordering McDermott to pay House Minority Leader John Boehner, (BAY'-ner) of Ohio, who was one of the people on the call. The amount is still being determined but it could be more than $700,000.

Boehner's lawyer says he's gratified by the decision.

Under grilling from lawmakers and attack by lawsuits alleging Bush authorized the illegal wiretapping of Americans, the White House has invoked a legal defense known as the "state secrets" doctrine — a claim that the president has inherent and unchecked power to shield national security information from disclosure, either to plaintiffs in court or to congressional overseers.

The principle was established a half-century ago when, ruling in a wrongful-death case brought by the widows of civilians killed in a military plane crash, the Supreme Court upheld the Air Force's refusal to provide an accident report to the plaintiffs. The government contended releasing the document would compromise information about a secret mission and intelligence equipment.

Sen. Arlen Specter of Pennsylvania, the senior Republican on the Judiciary Committee, believes the White House has gone too far in invoking state secrets to halt civil lawsuits.

"We have the authority to define the state secrets doctrine," Specter says. "I don't think that the simple assertion of state secrets ought to be the end of the matter."

Specter, Sen. Edward Kennedy, D-Mass., and others are working on legislation that would direct federal judges to review the president's state secrets claims and allow cases with merit to go forward.

Practices among judges vary. Some accept state secrets claims outright, dismissing cases on the government's word. Others read the privileged information and decide for themselves, but almost invariably side with the government, according to legal scholars.

The draft legislation is modeled on procedures used in criminal cases that involve classified information. The Classified Information Protection Act lets judges review classified information a criminal defendant wants to use in his defense, but which could compromise national security if it were released publicly. The law allows the court to delete classified passages, substitute summaries of the information, or substitute a statement of facts that the classified information would prove.

The measure could become part of the Senate's new eavesdropping law, expected to be voted on in early December, the aides said.

In another challenge to Bush's position on classified material, a federal judge in Virginia last week ordered the government to give trial prosecutors, defense lawyers and her clerk security clearances to review classified material in a terrorism case. Defense lawyers say the material will show the government failed to turn over evidence obtained by illegally monitoring their client's communications, and they want a new trial. The government says the information is protected by the state secrets privilege.

And in a case in Oregon, a U.S. district court judge is set to decide whether the 1978 Foreign Intelligence Surveillance Act trumps presidential claims of secrecy.

Adopted after the Watergate scandal, FISA dictates when the government must get permission from a secret court to monitor electronic communications inside the United States. It also allows people who believe they were spied on illegally to sue the government for damages and to request materials that would prove the surveillance. If the attorney general says disclosure would harm national security, a district court may review the classified materials privately to determine if the surveillance was illegal.

That civil liability provision of FISA, however, comes up hard against the National Security Agency's Terrorist Surveillance Program.

Shortly after the Sept. 11, 2001, attacks, Bush secretly authorized the spy agency to intercept international communications coming in and out of the United States that were believed to involve foreign terrorist organizations. It did so without going through the FISA court, claiming the Constitution and Congress' authorization for the use of military force after the terrorist attacks were all the authority the president needed to undertake the program.

Privacy and civil liberties groups say the warrantless surveillance violates FISA's prohibition on domestic surveillance without court orders. But for someone to sue the government for FISA violations, they must prove they were directly injured by the government's action. That is nearly impossible because the government will not disclose its targets or methods.

One organization, however, believes it can demonstrate it has standing to sue because of an accidental document release in 2004. That February, the Bush administration froze the assets of the Al-Haramain Islamic Foundation, a Muslim charity the United Nations Security Council alleges is associated with al-Qaida. In preparation for a legal proceeding on the terrorist designation in August, the Treasury Department inadvertently gave the foundation's lawyers and directors a top secret document dated May 24, 2004.

The document appeared to be a government summary of phone conversations it monitored between foundation lawyers and directors, according to a Washington Post reporter who received a copy from the foundation.

The FBI took the document from the Washington Post and Al Haramain in October 2004.

Fourteen months later, The New York Times revealed the existence of the Terrorist Surveillance Program. That is when the foundation's lawyers realized what the top secret document was: proof the organization had been targeted for warrantless electronic surveillance under TSP. They believe that proves standing, unique among plaintiffs in dozens of surveillance cases filed across the country.

The government asserts the states secrets privilege and refuses to release the document or confirm its contents. In its first crack at the case in 2006, the federal court in Oregon partially agreed. It said the document was rightfully protected by state secrets, but the foundation's lawyers could describe what they remembered about it to establish standing in their lawsuit.

The government appealed that decision to the 9th Circuit Court in San Francisco, which last week upheld its state secrets claim. But it did not dismiss the case. Instead, it directed the Oregon court to tackle one question it had sidestepped: whether FISA overrides the common law state secrets privilege.

Whatever the lower court decides, its decision will almost certainly be appealed to the Supreme Court, legal experts and attorneys on the case say. The high court is unlikely to be friendly to a challenge to the state secrets doctrine. In October it unanimously declined to hear a CIA torture allegation case that the Bush administration wanted dismissed on secrecy grounds. And in 2005, the Supreme Court unanimously upheld the state secrets doctrine in an espionage contract case.

Mr. Ryan, 73, told reporters that he faced prison with a clear conscience.

“I have said since the beginning of this 10-year ordeal that I am innocent,” he said. “And I intend to prove that.”

Mr. Ryan, who in 40 years in public office became one of the most powerful Republicans in the Midwest, was convicted last year of a long list of corruption charges stemming from his tenure as secretary of state and governor of Illinois, including using public money for campaign work and exchanging state business for money and gifts, among them an island vacation.

Outside Illinois, he was better known for his moratorium on the death penalty and commuting more than 160 death sentences to life in prison just before leaving office after one term, in 2003. To some, Mr. Ryan’s prison term should be cautionary in a state where making deals and giving favors have long been viewed as politics as usual. He is the third former Illinois governor convicted of wrongdoing.

“I would like to believe that this will have a chilling effect on corruption by public officials, but I’m not optimistic,” said Mike Lawrence, who directs the Paul Simon Public Policy Institute at Southern Illinois University.

New accusations of corruption continue to swirl around officials in the state. Federal investigations have started in connection with officials in Springfield, the capital, as well as Chicago City Hall.

Former Gov. James R. Thompson, a member of Mr. Ryan’s legal team, said he would appeal the case to the Supreme Court next year. A federal appeals court upheld the conviction in August.

Before dawn on Wednesday, Mr. Ryan left his home in Kankakee, 50 miles south of here, his face lighted by the news camera flashes. They later filmed him entering a pancake house in Chicago. Arriving at the prison in Oxford, Wis., Mr. Ryan entered through a back door.

The prison has housed other Illinois politicians, including Chicago aldermen, a Cook County Circuit Court clerk and former Representative Dan Rostenkowski.

Mr. Thompson suggested that Mr. Ryan would work a prison job, as required of all healthy inmates. Prison officials say possible jobs include serving food, mopping floors, landscaping and cleaning toilets. Prison officials said he was allowed to take in his wedding ring and an extra pair of eyeglasses.

New details about the "protections" given Blackwater contractors allegedly involved in the shootings sparked outrage from congressional Democrats yesterday, along with a flood of letters to Secretary of State Condoleezza Rice from committee chairmen demanding more information.

Sen. Patrick J. Leahy (D-Vt.), who heads the Judiciary Committee as well as the appropriations subcommittee overseeing State's budget, called the contractor issue the latest example of the Bush administration's refusal to hold anyone from "their team" accountable for misconduct or incompetence. "If you get caught," Leahy said in a statement, "they will get you immunity. If you get convicted, they will commute your sentence."

Most of the questions centered on who had authorized what many critics interpreted as a form of immunity from prosecution and why such protections -- designed for government employees -- were extended to private contractors.

Meanwhile, Rice and Defense Secretary Robert M. Gates have reached agreement that the U.S. military command in Iraq will exert tighter controls over security contractors in Iraq, Pentagon press secretary Geoff Morrell said yesterday.

Preliminary guidelines established by a State-Defense working group include common training standards and rules for the use of force for contractors as well as coordination of all contractor "movements" with the U.S. military headquarters in Iraq. The new guidelines will be presented to the top U.S. commander in Iraq, Gen. David H. Petraeus, and Ambassador Ryan C. Crocker for review before Gates and Rice make a final decision in the matter, Morrell said.

Military officers have complained that contractors guarding U.S. diplomatic convoys interfere with military operations and that their aggressive behavior undermines efforts to win "hearts and minds" in Iraq.

One major concern for Gates involves keeping the military abreast of the movement of contractors through the combat zone, Morrell said. "If it is unsafe or deemed not advisable to go there, someone is going to have the control to say: 'No, not at this time.' It would be MNF-I [Multi-National Force-Iraq] that would have that authority. Ultimately, the military has to sign off, in the battle zone, of movements into particularly dangerous areas." The decision to offer Blackwater guards protection from any use of their statements was made by State Department personnel in Baghdad without approval from Washington, sources said. Department lawyers subsequently determined that decades-old federal court rulings required such guarantees against self-incrimination for all government employees during internal investigations; the U.S. Supreme Court ruled in 1973 that the protections also applied to federal contractors.

But the inability of State's own law enforcement branch to pursue a possible criminal case based on the Blackwater statements, as well growing controversy over the Sept. 16 shootings here and in Baghdad, led Rice early this month to ask the FBI to take over the investigation.

To avoid compromising their own investigation, a team of FBI agents sent to Baghdad was not allowed to speak to the original investigators about the case or see the statements. Some of the dozen or so Blackwater personnel involved, at least two of whom have returned to the United States, declined FBI interviews.

In a statement yesterday, the Justice Department confirmed that no broad immunity from prosecution had been granted. But in a reflection of law enforcement dismay over what are considered impediments to a criminal case, Justice added that it would proceed "knowing that this investigation involves a number of complex issues."

State Department spokesman Sean McCormack said yesterday that State has no power to immunize anyone from federal criminal prosecution. "We would not have asked the FBI and the Department of Justice to get involved in a case that we did not think that they could potentially prosecute."

But several law enforcement officials, none of whom would speak on the record about an ongoing investigation, said it remained uncertain -- even without the protections -- whether the contractors could be prosecuted under U.S. law.

The four-page filing did not detail the basis for the appeal, noting only that Craig was appealing Porter's Oct. 4 order. The documents were dated with Friday's date but were received and stamped by the Appeals Court on Monday.

"From the outset, Senator Craig has maintained that he is innocent of any illegal conduct at the Minneapolis airport," Craig's lead attorney, Billy Martin, said in a statement. "Like every other citizen, Senator Craig has the constitutional right to make every effort to clear his name."

Craig, a Republican from Idaho, pleaded guilty to disorderly conduct in August after he was accused of soliciting sex in a bathroom at the Minneapolis-St. Paul International Airport in June.

A spokesman for the Metropolitan Airports Commission, which owns and operates the airport, said the guilty plea reflected Craig's conduct in the public restroom.

"The facts in the case speak for themselves, and we are confident the senator's guilty plea will stand," spokesman Patrick Hogan said in a statement.

The appeals court must find there's been an "abuse of discretion" by the trial judge before overturning a ruling — in other words, that some aspect of the ruling was decided improperly.

It would most likely be well into 2008 before the Court of Appeals rules on the case. The process by which both sides prepare their legal briefs alone usually stretches to more than 100 days, and the Court of Appeals faces a heavy caseload.