Overlooked perhaps in the historic vote that made Barack Obama the nation's first African-American president is something that didn't happen. With the defeat of the McCain/Palin ticket and its extremist anti-abortion platform, Americans voted against an abrogation of women's reproductive rights that might have taken a generation to undo. And by rejecting draconian ballot measures in Colorado, South Dakota and California, voters protected a woman's right to choose - at least for now.

To be sure, Obama's victory prevented the emergence of conservative Supreme Court supermajority committed to sweeping away Roe v. Wade. With the potential retirement of Justices Stevens (88) and Ginsburg (83), Obama may the opportunity to make at least two nominations to the Court. (There may be 14 openings on the nation's appellate courts, all but one which currently has a Republican majority.) Given Justice Kennedy's condescending and paternalistic opinion in the 5-4 Gonzales v. Carhart case upholding the so-called federal partial birth abortion ban, the direction of the Court and the fate of Roe surely hung in the balance last Tuesday.

On that point, John McCain, Sarah Palin and the Republican Party were quite clear. McCain not only supported judicial appointees in the mold of John Roberts and Samuel Alito, he reversed course to support overturning Roe v. Wade. And to be sure, the 2008 Republican platform incorporated Palin's extremist views on abortion, banning the procedure even in cases of rape and incest:

"We support a human life amendment to the Constitution, and we endorse legislation to make clear that the Fourteenth Amendment's protections apply to unborn children."

In Colorado, anti-abortion activists tried – and failed - to enshrine the GOP plank's logical extreme in the state constitution.

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For the second time in six weeks, John McCain has challenged the press and the public to "name a single issue" where's he changed positions since 2000. Sadly for the supposed maverick, his growing list of reversals, flip-flops and turnabouts now numbers in the dozens.

None of which deterred McCain from pretending otherwise in an interview Wednesday with the CBS affiliate in Washington, DC. Asked, "where is the John McCain from 2000?" and "has something changed," Mr. Straight Talk responded:

"You’ll have to tell me what’s changed. I love it when they say, 'Oh McCain has changed.' And I say, 'What have I changed on?' They can’t name a single issue or they’ll name an issue and it's false. I’m the same guy. I’m proud of our campaign."

Last month, McCain threw down the same gauntlet during his disastrous appearance on ABC's The View. When host Joy Behar lamented, "I don’t see the old John McCain…I understand why - you want to get elected," McCain instinctively went to battle stations:

"I’ve been through this litany before, where I say, 'ok, what specific area have I quote changed?' Nobody can name it...I am the same person and I have the same principles."

As it turns out, not so much.

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CNN:

Former White House Counsel Harriet Miers and President Bush's current Chief of Staff Josh Bolten do not have to cooperate -- at least this year -- with a congressional committee investigating the firings of U.S. Attorneys, a three-judge federal appeals panel in Washington ruled Monday.

The U.S. Court of Appeals for the District of Columbia said as a practical matter, the case cannot be resolved before the current session of Congress ends, so a new Congress will have to decide whether to pursue the matter.

In June, Democrats controlling the House Judiciary Committee issued a subpoena to Miers seeking to compel her to produce documents and to appear before the committee to testify about the firings of nine federal prosecutors.

The committee also issued a subpoena to Bolten to produce documents.

Both fought the subpoenas, and District Court Judge John Bates ruled Miers and Bolten must honor the congressional demands.

The appeals court reversed that ruling.

"The present dispute is of potentially great significance for the balance of power between the Legislative and Executive Branches. But the Committee recognizes that even if expedited, this will not be fully and finally resolved by the Judicial Branch ... before the 110th Congress ends on January 3, 2009," the ruling said.

Bush League Justice strikes again.

    The ACLU has won a landmark ruling from the U.S. Court of Appeals for the Second Circuit, which has slammed the Bush administration for using ridiculous arguments for withholding 21 graphic photos of detainee abuse which formed part of a FOIA request.

The government claimed that the public disclosure of such evidence would generate outrage and would violate U.S. obligations towards detainees under the Geneva Conventions because they would embarrass or humiliate the prisoners.

But the court ruled in the first instance that outrage (over abuse and torture, mind you, so it would be justified outrage) where no specific individual could be named as being at risk was too wide an exemption to grant.

"It is plainly insufficient to claim that releasing documents could reasonably be expected to endanger some unspecified member of a group so vast as to encompass all United States troops, coalition forces and civilians in Iraq and Afghanistan," the appeals court said.

And in the second instance, the Court pointed to the way in which the US had published pictures photographs of dead, tortured and abused prisoners in Japanese and German prison and concentration camps after World War II.

"Yet the United States championed the use and dissemination of such photographs to hold perpetrators accountable," the court said.

The ACLU's attorney Amrit Singh told the AP that:

"These photographs depict abuse at locations other than Abu Ghraib," she said of the 21 pictures that the court ordered for release. "Their release is to hold government accountable for torture policies and bring an end once and for all to the abuse of prisoners."

And the ACLU's press release continues:

(T)he appeals court today rejected the government's attempt to use the FOIA as "an all-purpose damper on global controversy" and recognized the "significant public interest in the disclosure of these photographs" in light of government misconduct. The court also recognized that releasing the photographs is likely to prevent "further abuse of prisoners."
 
"This is yet another case in which the administration used national security as a pretext to suppress information relating to crimes that were endorsed, encouraged or tolerated by government officials," said Jameel Jaffer, Director of the ACLU National Security Project. "The appeals court was correct to recognize both that the administration's suppression of the photographs was without legal basis and that disclosure will further the purposes of the Geneva Conventions by deterring the abuse and torture of prisoners in the future."  

Singh noted that the government admits it has other photos which are not part of this ruling, but I'd like to remind everyone that photos are just the tip of the iceberg. Back in February a Seton Hall Law report revealed that the US military military videotaped all of the interrogations at Guantanamo and other interrogation centers and retained them. There were around 24,000 recordings made, in all and the Bush administration have been highly evasive about their current whereabouts.

Still the release of these photos will once again show the Bush administration's institutionalized use of torture to the world - and they should have their feet held to the fire for such acts. Not only will the Muslim world be outraged - for does anyone doubt that most or all of the victims pictured will be Muslim? But European nations will also come under renewed internal pressure to eschew co-operation in illegal rendition with any US administration that perpetuates Bush policy.

And maybe, just maybe, someone in the press will hold up the pictures to John McCain and ask him whether he thinks what he sees there constitutes actual torture, not any lesser "enhanced interrogation techniques".

It’s been about two weeks since the Justice Department’s inspector general released a report on the unprecedented politicization of employment practices at the Justice Department. The IG report concluded that disgraced officials such as Monica Goodling and former chief of staff D. Kyle Sampson “routinely broke the law” by applying political litmus tests, even when hiring prosecutors and immigration judges.

Since then, no one in the Bush administration has wanted to talk about the scandal. The good news is, Attorney General Michael Mukasey addressed the subject this morning in a speech to the American Bar Association. The bad news is, what he had to say was far from encouraging.

Initially, it seemed like Mukasey was, at long last, prepared to be candid and forthcoming. The problem came when the nation’s chief law-enforcement officer addressed what he was prepared to do as a consequence of the DoJ’s rampant lawbreaking.

Mukasey said he will not prosecute the DoJ employees who repeatedly and flagrantly violated the law.

Attorney General Michael Mukasey said Tuesday that the Department of Justice would not pursue criminal charges against former employees implicated in an internal investigation on politicized hiring practices.

“Where there is evidence of criminal wrongdoing, we vigorously investigate it,” Mukasey said in a speech at the American Bar Association. “And where there is enough evidence to charge someone with a crime, we vigorously prosecute. But not every wrong, or even every violation of the law, is a crime.”

Wait, not every violation of the law is a crime? Isn’t that the definition of a “crime”?

White House attorneys are quite capable of coming up with creative legal arguments. The problem, though, is that judges aren’t willing to reward their creativity.

President Bush’s top advisers are not immune from congressional subpoenas, a federal judge ruled Thursday in an unprecedented dispute between the two political branches.

House Democrats called the ruling a ringing endorsement of the principle that nobody is above the law.

In his ruling, U.S. District Judge John Bates said there’s no legal basis for Bush’s argument and that his former legal counsel, Harriet Miers, must appear before Congress. If she wants to refuse to testify, he said, she must do so in person. The committee also has sought to force testimony from White House chief of staff Joshua Bolten.

“Harriet Miers is not immune from compelled congressional process; she is legally required to testify pursuant to a duly issued congressional subpoena,” Bates wrote. He said that both Bolten and Miers must give Congress all non-privileged documents related to the firings.

Because I know this is the first question on the minds of many political observers, I should note that Bates was appointed to the federal bench by none other than George W. Bush. Indeed, Bates has, in general, been a Bush administration ally (he threw out Valerie Plame’s suit against Karl Rove, for example).

But not today. Bates wrote that “the Executive’s current claim of absolute immunity from compelled congressional process for senior presidential aides is without any support in the case law.”

House Speaker Nancy Pelosi called it “very good news for anyone who believes in the Constitution of the United States and the separation of powers, and checks and balances.”

So, what happens now?

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When Reagan nominated Robert Bork for the Supreme Court, he made things pretty easy for his Democratic critics. Before becoming a nominee, Bork had said or written all kinds of bizarre and scary things. Once his hearings began, Bork could have distanced himself from his record, but instead he tried to justify his body of unhinged right-wing work, as anyone with confidence in his or her beliefs might.

So, when Ted Kennedy noted, for example, that Bork supported a law that imposed a poll tax on voters, Bork acknowledged his position and said, “It was only $1.50.”

I mention this because John McCain spoke this morning on his commitment to nominating conservative judges to the federal bench if elected president. Bork’s name didn’t come up in his speech, of course, but so long as McCain’s intentions with regards to the judiciary are on the front-burner today, let’s take a closer look at the 1987 speech McCain delivered on the Senate floor on Bork’s behalf.

“I would like to explain why I am going to vote of favor of confirmation [of Robert Bork], and why I do so without any hesitation … I believe that what the Senate should appropriately examine in a nominee are: Integrity and character, legal competence, and philosophy and judicial temperament. I believe Robert Bork is well qualified in all four respects … Judge Bork’s honesty, integrity, and diligence are above reproach … [he] demonstrates that he is not some intellectual ‘loose cannon on deck,’ or a quixotic maverick jurist , but is a thoughtful, reasonable, jurist … [he] is hardly a radical, but is rather a very thoughtful judge in synch with the vast majority of his colleagues on the bench. […]

“First, and most importantly, is the question of Judge Bork’s view of the role of the judiciary. Judge Bork is clearly a believer in judicial restraint. He believes that the courts should not create social policy or arbitrate social policy disputes unless the Constitution clearly speaks to the issues. He believes that in our republican form of government such decisions are properly left to legislatures elected by the people, not Federal judges appointed for life. I have no problem with that view, because I wholeheartedly agree with it."

I realize 1987 was a while ago (I was 14 during the Bork hearings), and many may have forgotten the judicial record McCain was defending so enthusiastically.

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A six year old West Virginia jury award now worth $70 million against the country's fourth largest coal company was overturned last week by the West Virginia Supreme Court. Now a look back at what happened in between is raising eyebrows, not to mention Massey Energy CEO Don Blankenship's hackles. This one seems eerily similar to John Grisham's latest, only this is for real. ABC's Brian Ross explains.

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After Massey Energy appealed the case, its CEO Don Blankenship, a Richmond Virginia resident, helped bankroll a $3.5 million ad campaign to successfully unseat W.V. Supreme Court Justice Warren McGraw and replace him with Justice Brent Benjamin, or as fellow Justice Larry Starcher put it, "the election was bought, a seat was purchased on our Supreme Court, and I'm highly offended by it." Then pictures surfaced of Blankenship and W.V. Supreme Court Chief Justice Spike Maynard vacationing with their girlfriends on the Riviera. "It was a trip the Chief Justice never disclosed to the court, even when he voted with the majority to overturn the huge Massey verdict, according to Justice Starcher, who is now being interviewed by the FBI."

After the pictures became public, Justice Maynard did recuse himself, but so did fellow Justice Starcher because (gasp), he had dared to have been critical of Blankenship's relationship with the Court. So the three remaining W.V. Justices, including Blankenship's 3.5 million dollar Justice Benjamin, reheard the case last week and again overturned it.

When approached for a comment by ABC News, Blankenship threatened that the reporter was "liable to get shot" and attacked his camera.

W.V. Chief Justice Maynard insists he's been the victim of "the mother of all political smears," even after it came out that Blankenship's chief political consultant is now helping Maynard's re-election bid. Let's hope that goes about as well as Blankenship's $3 million attempt to finance a GOP takeover of the W.V. House in 2006.

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In the final installment of Dan Abrams' Bush League Justice which looks at the infuriating case of Don Siegelman.  A credible Democratic rival to Republican Rob Riley's race for the governorship of Alabama, it appears that Karl Rove pulled strings with the DoJ to have Siegelman charged not once, but twice, with corruption and using loyal Republican US Attorneys and judges (some of whom actually worked on Riley's campaign and refused to recuse themselves), convicted and imprisoned Don Siegelman on shaky evidence and even now prevent Don from speaking to anyone.  Law professor and Harper's contributer Scott Horton, who has been following Siegelman's case, calls him literally The Man In The Iron Mask.  Rep. Artur Davis (D-AL) and Horton paint a horrifying picture of depraved partisanship and corruption where nothing is off limits, not even unfairly jailing your opponent.

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Dan Abrams began a new series Monday chronicling the politicization of the Civil Rights Department of the DOJ under George W. Bush. Politicization would be a polite euphemism for turning the very basis for the creation of a Civil Rights Department inside out. And like everything else about the Bush Administration, it appears its sole focus is to operate on a strictly partisan basis and without regard to competency.

This is a subject that has been tirelessly investigated by blogs like BradBlog (See here, here, here, here, and here) , TPMMuckraker (See here, here, here, here and here) and Greg Palast, so it's about time this got some MSM attention.

My HUGE thanks to Heather for the videos and links.

  It seems hard to believe in a country that honors church-state separation, but Prison Fellowship Ministries, founded by ex-Watergate felon Charles Colson, was effectively given an entire wing of Iowa’s Newton Correctional Facility a few years ago, and Colson’s group created what was basically a state-sponsored evangelism program (called InnerChange).

A federal court struck down funding for the program as a blatant violation of the First Amendment, explaining, “For all practical purposes, the state has literally established an Evangelical Christian congregation within the walls of one of its penal institutions.... There are no adequate safeguards present, nor could there be, to ensure that state funds are not being directly spent to indoctrinate Iowa inmates.”

The case (filed by my former employer, Americans United for Separation of Church and State) went to the 8th Circuit on appeal, and today the appeals court agreed that the faith-based program is unconstitutional.

Americans United presented evidence that inmates who took part in InnerChange were given better treatment and perks that were not available to others, including better housing and expedited access to classes required for parole…. At trial, inmates testified that they were pressured to convert to evangelical Christianity, and that the beliefs of Roman Catholics and other faiths were ridiculed. The court record showed that non-Christians were frequently referred to as “unsaved,” “lost,” “pagan” and “sinful” by InnerChange staff. The program required staffers to abide by an evangelical statement of faith.

In a unanimous decision joined by retired Supreme Court Justice Sandra Day O’Connor, the appeals court upheld a lower court ruling issued on June 2, 2006, except that it reversed a portion of the lower court ruling that required InnerChange to return funds it received prior to June 2006. InnerChange will still need to return funds it received after the June 2006 ruling.

It's the latest major setback for Bush's faith-based initiative.

Great new read by Ben Wallace-Wells in this month's Rolling Stone that exposes how the $500 Billion spent on the Drug War over the last 35 years has been all but a complete waste of time and money, and an absolute failure by any standard of measure.

[A]fter U.S. drug agents began systematically busting up the Colombian cartels - doubt was replaced with hard data. Thanks to new research, U.S. policy-makers knew with increasing certainty what would work and what wouldn't. The tragedy of the War on Drugs is that this knowledge hasn't been heeded. We continue to treat marijuana as a major threat to public health, even though we know it isn't. We continue to lock up generations of teenage drug dealers, even though we know imprisonment does little to reduce the amount of drugs sold on the street. And we continue to spend billions to fight drugs abroad, even though we know that military efforts are an ineffective way to cut the supply of narcotics in America or raise the price.

All told, the United States has spent an estimated $500 billion to fight drugs - with very little to show for it. [...]

Even by conservative estimates, the War on Drugs now costs the United States $50 billion each year and has overcrowded prisons to the breaking point - all with little discernible impact on the drug trade. ...(read on)

That is a truly one great article every policy maker should have to read. I can't ever read a word on this topic without remembering how Col Oliver North was involved in smuggling cocaine into the U.S. under Reagan, circumventing Congress to pay for an illegal proxy war, which coincided with the birth of the crack epidemic at the very same time the President had declared a 'War on Drugs' (Remember Nancy's 'Just Say No'?) and the great expansion in the building of prisons and increasing sentences that has resulted in the disenfranchisement of generations of disproportionately black would-be voters to this very day. But of course all that was just another unintended but electorally significant consequence of Ronald Reagan's.

No, it's not a remake of the movie. This is the sad but true story of Al-Timimi and Omar Khadr, and the desecration of justice under Bush.

Reports have begun to circulate that the Administration has put together a group of scholars headed by a right-wing activist judge to craft legislation to introduce a new court of Star Chamber, perhaps to be floated in the coming year. As we see in the public pronouncements of the Bush Administration, accusations leveled at detainees in the war on terror are leveled for political effect, and often to parallel partisan political campaigns. If those accusations are rejected by a court, it therefore undermines confidence in the Administration and the Party. Which is why, in the Bush view of justice, a failure to convict is unacceptable. And which is why the Bush view of justice is no justice at all. ... read on

Cuz if you're really going to go pre-Habeas Corpus Act, you gotta have your own Star Chamber.

(guest blogged by miss kitty)

"No person …shall…be subject for the same offense to be twice put in jeopardy of life or limb…"

Excerpted from the Fifth Amendment of the United States of America

So what is happening with Lt. Ehren Watada?

Znet: The double jeopardy clause of the US Constitution ensures that no American can be tried twice for the same offense. But at a time when our civil liberties are rapidly eroding, a drama is unfolding in Washington State over whether that constitutional protection applies to a US soldier.

After his February court-martial ended in a mistrial, Lt. Ehren Watada, the first commissioned officer to refuse to serve in Iraq, seemed certain to face a second court-martial on October 9 at Fort Lewis, an Army base near Tacoma. Three military courts had rejected Watada's claim of double jeopardy, finding no abuse of discretion by the military judge in declaring a mistrial. But in an unusual civilian intervention in a military legal process, US District Court Judge Benjamin Settle issued a last-minute stay October 5 in Tacoma, temporarily blocking the trial.

That stay is due to be decided upon on Friday, November 9th.

Whether or not one agrees with Watada's actions that led to his trial, the rights granted persons within the borders of the United States, by the Constitution and its Amendments, are being eroded further by the actions George Bush's government is taking against 1st Lt. Ehren Watada.

Courage to Resist.org

Reason why we aren't trying more terror cases? The jury comes back to courtroom with verdict of not guilty and three jurors allegedly jump up and say "that is not the verdict!"

AP: ...chaos broke out in the court in Texas when three jurors disputed some verdicts that had been announced.

Weirdness in the court. NBC:

"I thought they were not guilty across the board," said the juror, William Neal, a 33-year-old art director from Dallas. The case "was strung together with macaroni noodles. There was so little evidence."

Read more....