Kos:

Heck, I'd be happy if just the Democrats would follow their words with action this Magical September. We don't need Republicans to follow suit.

Republicans need 60 votes in the Senate to pass any funding bills, while Democrats can single-handedly squash any efforts in the House. If Republicans don't compromise on a withdrawal timetable, there's no impetus to pass a funding bill.

And without funding, there's no war.

Way to make me look dumb, Kos. And shut me up quick. I thank you for it.

Kudos.

For a year, the ACLU has been trying to get documents from the military on the killings of Iraqis by U.S. Troops. It is filing a lawsuit today because to date, only the Army has complied with their FOIA request.

Also today, the ACLU released 10,000 pages of documents it received from the Army in a searchable database here.

Those documents include new evidence of coalition forces’ involvement in civilian casualties in Iraq and Afghanistan. The nearly 10,000 pages that the ACLU is making public today include courts martial proceedings and military investigations regarding the possible wrongful death of civilians.

The files in many instances show a lack of proper training. From the New York Times report on the released documents:

They show repeated examples of troops believing they were within the law when they killed local citizens.

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(Andy Warhol's "Electric Chair", 1971)

Nebraska, which currently has 10 men on death row, still uses the electric chair exclusively for executions.

Today, the Nebraska Supreme Court holds oral argument on the constitutionality of frying its death inmates.

The case being argued involves an appeal filed by death-row inmate Raymond Mata Jr. But it also could affect the case of death row inmate Carey Dean Moore, who came within days of being executed in May.

The court cited the Mata appeal when it abruptly halted Moore's scheduled execution. The court said the legal questions surrounding the electric chair needed to be resolved before another inmate was put to death in Nebraska.

Nebraska legislators were one vote short of ending the death penalty this year. The answer is not to switch from the electric chair to lethal injection, but from the electric chair to life without the possibility of parole.

If the Nebraska high court tosses Old Sparky it will leave the state without a death penalty. Hopefully, one more legislator will change his mind when it comes time to consider a new death penalty law in the state.

Check out next Sunday's New York Times' magazine article by Jeffrey Rosen on Jack Goldsmith's book that discusses, among other things, what went on behind the scenes with Ashcroft, Gonzales and the NSA wiretapping program. Goldmsith is the former head of the DOJ's Office of Legal Counsel

The article contains a number of new disclosures. But first, some background. Goldsmith is a conservative. He supports the war on terror. Here's where he's coming from:

Goldsmith notes, everywhere the president looks, critics — as well as his own lawyers — are telling him that pre-emptive actions may violate international law as well as U.S. criminal law. What, exactly, are the legal limits of executive power in the post-9/11 world? How should administration lawyers negotiate the conflict between the fear of attacks and the fear of lawsuits?

In Goldsmith’s view, the Bush administration went about answering these questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of executive power. As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”

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Vanity Fair's September issue has a long interview with Al Gore and Tipper about the 2000 election and the effect of the media.

Tipper Gore tells [author Evgenia] Peretz that following the loss, “we were roadkill … it took a long time to pick ourselves up from what happened.” Tipper also says that Al has made no moves that would suggest a run for the presidency, but adds that if he turned to her one night and said he had to run, she’d get on board, and they’d discuss how to approach it this time around, given what they’ve learned.

Sen. John McCain, who thankfully appears to have little chance of winning his party's nomination, let alone the Presidency, is now advocating stepping up the domestic war on drugs.

We are creating the demand. We are creating the demand for these drugs coming across our border, which maybe means that we should go back more trying to make some progress and in telling Americans, particularly young Americans, that the use of drugs is a terrible thing for them to do," he said.

Yes, lets jail some more non-violent drug offenders, that will work. (strong sarcasm.)

Kevin Drum continues his stellar work exposing General Potemkin Petraeus. From a WaPo article:

[V]isits to key U.S. bases and neighborhoods in and around Baghdad show that recent improvements are sometimes tenuous, temporary, even illusory....Even U.S. soldiers assigned to protect Petraeus's showcase remain skeptical. "Personally, I think it's a false representation," Campbell said, referring to the portrayal of the Dora market as an emblem of the surge's success. . . . [T]he Dora market is a Potemkin village of sorts . . .

Frederick Kagan, of the Fighting Writing Kagans compares Anbar to Gettysburg and Bush's trip there to Lincoln's trip to Gettysburg. I kid you not. Write your own snark. My one observation - when did Bush become President of Iraq?

Finally, I continue my whining about cajoling of the Netroots on Iraq in my most recent piece in the Guardian Online's blog, "comment is free." [Note: The piece was edited by a Guardian editor.]

Unwisely yet predictably, Connecticut legislators are considering enacting a three-strikes law in response to a gruesome multiple murder last month by two inmates with lengthy records.

The New York Times has an editorial today in opposition.

The appeal of a “three strikes and you’re out” law is understandable, but these laws have proven to be blunt instruments that cause more injustice than they prevent. In California, which has a particularly draconian law, a man who shoplifted $153.54 worth of videotapes was sent to jail for 50 years. These laws are not only overly harsh. They are enormously expensive, because of all of the prison cells that are needed to warehouse minor criminals who pose little threat to society, many of whom are elderly by the end of their sentence.

....adopting a one-size-fits-all sentencing system makes no more sense than releasing criminals without adequate information.

So many of our worst and most draconian laws stem from reaction to a single crime. As I've written repeatedly,

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Now that everyone has had a chance to twitter at Sen. Larry Craig's misfortune of being popped for toe-tapping in the men's bathroom at the airport, I'm glad to see some liberal blogs take note of the underlying issue....why are we paying police to hang out in airport bathrooms in the first place?

Arianna writes:

There clearly are very serious potential threats to our safety to be found in airports -- outside of bathroom stalls. Is sending Sgt. Karsnia into the men's room to spend all day trying to get other men to look at him and tap his foot really the best way to use our limited law enforcement resources?

....Since the news about Craig broke, the media focus has been on his sexual perversions -- it's time to turn the spotlight on the perverted priorities of America's law enforcement community.

HuffPo is asking for your help in gathering numbers:

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Playing gotcha on the exact phrasings in the Constitution is pretty silly and Professor Althouse tries it on The NYTimes:

"The New York Times editors think that the phrase 'life, liberty, and the pursuit of happiness' is in the Constitution..." Oops! But if it's a living Constitution, surely, life, liberty, and the pursuit of happiness have evolved there by now. Let's run with it! Possibly to things the NYT won't even like.

(Emphasis supplied.) For the record, a pretty important amendment to the Constitution, the 14th, states:

. . . No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

(Emphasis supplied.) Not precisely "life, liberty and pursuit of happiness," but not exactly made up out of whole cloth as Professor Althouse seems to suggest. Just sayin'

Senator George Aiken famously said about Vietnam "declare victory and get out." Is President Bush about to employ the Aiken Solution in Iraq?

President Bush raised the possibility Monday of U.S. troop cuts in Iraq if security continues to improve, traveling here secretly to assess the war before a showdown with Congress. . . . Bush said, "when we begin to draw down troops from Iraq, it will be from a position of strength and success, not from a position of fear and failure." . . . "I am more optimistic than I have been at any time since I took this job," said Gates. . . .

I'll believe it when I see it, but whatever ends the Iraq Debacle is fine by me. Let Bush declare victory. Just end the Debacle.

The APSA had a panel on the New Originalism, and Professor Jack Balkin's Progressive Originalism was front and center.

Larry Solum provides a terrifc writeup on the debate. Balkin's highlight:

Balkin thought he should talk about "progressive originalism". How do you do it? For Balkin, the issue is how to be faithful to the constitution's commands as law. Fidelity requires that we be faithful to the text and the original meaning of the text. The text has rules, standards, and principles. Where the constitution enacts a principle, you must be faithful to the principle. This leads to a distinction between original expected application and original meaning. Early originalism conflated this two.

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