A detainee at the Guantanamo Bay detention facility tosses a soccer ball.

In a decision that could ban the military's favorite methods of prosecuting Guantanamo Bay detainees, a federal appeals court on Tuesday overturned the 2008 military commission conviction of Salim Hamdan, Osama bin Laden's former driver.

Judge Brett Kavanaugh, a George W. Bush appointee, wrote for a three-judge DC Circuit panel that Hamdan could not be prosecuted for acts that were not crimes at the time they were committed. That's because the Constitution prohibits Congress from passing laws ex post facto—after the fact. The government cannot make something a crime after you've already done it and then charge you for doing it. But that's exactly what Congress seemed to do in 2006 when it made "material support for terrorism" a war crime and encouraged the military to prosecute Gitmo detainees—who had already been imprisoned for years—for committing it.

"This is a massive blow to the legitimacy of the military commissions system," says Zachary Katznelson, a senior attorney at the ACLU. The commissions "have been trying people for years for something that isn't even a war crime." 

War crime or not, prosecutors love material support charges because they're vague and relatively easy to prove. Material support often involves conduct that might not necessarily be violent—like driving bin Laden's car or cooking his food—that somehow helps a terrorist group.

It's not just a few Gitmo detainees who have faced these charges. Every single detainee at Gitmo who has been convicted by military commission has been at some point charged with material support for terrorism. Now a federal judge—one appointed by Bush!—says that's all bogus. And it's not just material support charges that could be affected. Conspiracy charges, which were also not a war crime under United States law before 2006, could be thrown out for similar reasons.

Mother Jones Washington bureau chief David Corn and The Washington Post's David Maraniss joined Chris Matthews on MSNBC's Hardball to talk about what Barack Obama needs to do to make up for his leaden performance in the last presidential debate.

David Corn is Mother Jones' Washington bureau chief. For more of his stories, click here. He's also on Twitter.

Peter Hart, one of the sharpest Democratic pollsters out there, has put out a four-page memo on the state of the 2012 presidential campaign based on focus groups his firm conducted in Ohio—the most important of the swing states. He notes, "President Obama's debate performance did two things: it left these voters both stunned and mystified, and it has caused them to give Romney a second look." But Romney, he notes, hasn't completed the sale: "On the economic front, Romney may have the credentials, but he has yet to translate them into something these voters can grasp firmly. They know he has held the position and done the deals, but there are no specifics. People could talk about past candidates' specifics: McCain was a POW; Bush 43 had a legislative record of working with Democrats. There are no specifics for Romney—just a title."

This is not surprising stuff, but in this memo (reported by NBC News' First Read tip sheet) Hart did derive a characterization of Romney that seems dead-on:

The bottom line for Romney is that when voters are asked what relative he would be in their family, he ends up as the "step dad": no blood kin, but someone who accepts you only because he has to. He has never been able to close that emotional linkage with the voters. The question ahead of him is whether he can gain the respect and success labels that would give voters a reason to support him.

So is this the question for tonight's town hall debate and the rest of the campaign: can Romney demonstrate that he really does care about you? (And, yes, we mean you suburban, white women voters whom the pundits are fixated on.) This is, of course, where his 47-percent rant comes in. Can Romney convince the "kids" who overheard him say they are lazy no-goodniks that he really didn't mean it and that he truly does care for them? That may be one of the fundamental dynamics of the moment. Perhaps Romney should promise them a pony.

Oh, wait, he already did that in the first debate.

USS Rushmore, bearing Marines and sailors, sails the open water off the coast of Timor-Leste during Exercise Crocodilo, Oct 13, 2012.
US Marine Corps photo by Master Sgt John A. Lee, II.

Update: On Tuesday, the Supreme Court rejected an attempt by Ohio to shut down early voting the weekend before Election Day for everyone but members of the military and their families, a major victory for the Obama campaign.

The Supreme Court's highly politicized and intensely criticized decision in the landmark case Bush v. Gore was so bad for the court that it reportedly made former Justice David Souter weep and contemplate quitting. In his dissent, Justice John Paul Stevens lamented bitterly that the majority opinion "can only lend credence to the most cynical appraisal of the work of judges throughout the land." When asked about the decision, Justice Antonin Scalia usually tells audiences, "Get over it!"

In the 12 years since the conservative court majority stopped the Florida recount and handed the presidential election to Republican George W. Bush, it has studiously avoided revisiting that decision. Bush v. Gore has become The Case That Shall Not Be Named. Not once has the court cited the opinion in another decision. By comparison, in the decade after Brown v. Board of Education, the court referenced that decision more than 25 times. But an unexpected litigant may soon force the court to confront the logic of what it did in 2000: the Obama campaign. And how the court decides that case could swing the election. Again.

Obama for America has been in court in Ohio challenging the state's move to close early voting three days before the actual election for everyone but military and overseas voters. The state had implemented early voting in 2005 after criticism of its performance in 2004, when thousands of voters faced huge lines on Election Day and many people were turned away because they didn't vote before the polls closed. In 2008, 100,000 people, many of whom might be considered to lean Democrat (women, minorities, poor people), voted early during the weekend before the election. So last year, Ohio's Republican-dominated state legislature decided to pull the plug on early voting, except for the people who might be more inclined to vote Republican, namely people in the military.

The Obama campaign challenged the move, and in August, a federal judge agreed that Ohio had violated the Constitution's Equal Protection Clause by allowing some people to vote early but not others. In early October, the Sixth Circuit Court of Appeals upheld the decision and ordered Ohio to keep the polls open for the weekend for everyone if they do it for the military and overseas voters. The state has filed an emergency petition with the Supreme Court to overturn the order. The Obama campaign, naturally, is opposed, and has filed a brief arguing that Bush v. Gore demands that the court protect the integrity of the voting process. (In that case, the court stopped the Florida vote recount because it argued that the state's procedures failed to treat all ballots equally and thus had violated the 14th Amendment.)

As a result, the court now will have to prove whether it was serious or simply partisan when it sided with Republicans by declaring that "[t]he right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise." The Ohio case could provide the court with an opportunity to "heal the wound of confidence" that Stevens so eloquently identified in his 2000 dissent. This time, though, if the court sticks with this earlier precedent, it might be helping hand the election to the Democrats, making the case a serious test of the conservatives' true commitment to the idea of equal protection at the ballot box.

On the eve of the second presidential debate of 2012, which will be held in a town hall type format, President Barack Obama's campaign is telling reporters that their candidate is planning to "be more aggressive and show more passion this time around." Mitt Romney's advisers are saying he "intends to build on the progress he made in the first debate by conveying authenticity."

Although it may be hard to imagine the president compounding the error of a debate performance that left Romney with a lead in many polls, the reports about the candidates' debate preparation suggest Obama may have the wrong idea about what he faces on Tuesday. The town hall is technically a "debate," but winning depends very little on actually debating one's opponent. In the town hall format, victory often depends on looking like you're relating to the audience. This is partly because of the media's predilection for covering debates as if they're stage plays. But it's also built into the format itself.

Take, for example, this classic moment from 1992, in which then-President George H.W. Bush almost face-palms himself after challenger Bill Clinton takes a question about how the national debt personally affects the candidates and knocks it out of the park. Bush rambles about interest rates and gets defensive about being rich. Clinton starts off by asking the questioner how the debt has affected them, then starts talking about all the people he personally knows who've been laid off: 

Now, in fairness, Clinton does give a substantive answer about government being in the grip of a "failed economic theory," which happens to be the same one Mitt Romney is pushing. He also turns around the question around and explains the debt is not the only cause of the recession. But for people who don't write or think about politics every day, it's the delivery that makes the difference here.

Meanwhile, the past offers us an example of what it looks like when a candidate trying to make up for lost ground mistakes a town hall debate for pistols at dawn. In 2000, Al Gore, frustrated by media coverage of the previous two debates that prized superficial behavior by the candidates over substantive policy differences, walked up to Bush in a confrontational manner at the third town hall style debate and allowed Bush to make a fool out of him:

In sum, town hall debates aren't so much arguments as acting competitions. The nature of the town hall format carries substantial risk for a rusty incumbent president and a candidate with something to prove. Obama is both. Romney, by practicing his Clinton impression, may be better prepared this time around, too. 

Anti-gay activists tend to find evidence of the "homosexual agenda" lurking around every corner: in Teletubbies, Campbell's Soup, even American Girl dolls. Most recently, though, they've focused their attention on programs designed to combat bullying in schools, which they see as a dangerous movement to bring impressionable youth into the gay lifestyle. As Bryan Fischer, the director of issues analysis at the American Family Association (AFA), one of the leading opponents of anti-bullying programs, has explained, "[H]omosexuals cannot reproduce, so they have to recruit; it's the only way to swell their numbers."

AFA and other anti-gay groups like the Traditional Values Coalition has been fairly apoplectic about anti-bullying programs and legislation around the country that has been enacted in the wake of suicides of gay teenagers who had been bullied at school. They've directed their wrath at people like Kevin Jennings, formerly the Obama administration's safe schools "czar," who made anti-bullying programs a big part of the administration's education agenda. (Conservative outrage against Jennings was so bad that he was the target of numerous death threats.) The most recent campaign, though, is targeted at an anti-bullying effort called "Mix It Up At Lunch Day," created by the Southern Poverty Law Center.

Mix It Up Day, this year on October 30, consists almost entirely of forcing kids to sit with someone new at lunch. That's it. The idea behind it is that forcing kids to interact with kids they don't normally hang with helps break up cliques that form in schools and which foster bullying. But behind this rather innocuous project, the AFA sees the "homosexual agenda." According to their website:

"Mix It Up" day is an entry-level "diversity" program designed specifically by SPCL [sic] to establish the acceptance of homosexuality into public schools, including elementary and junior high schools.

AFA is encouraging its members to keep their kids home from school on the 30th if their schools participate, and also to pressure schools to abandon the project. The SPLC finds AFA's outrage—and characterization of the program—a bit preposterous. Maureen Costello, the director of the center's Teaching Tolerance program, told the New York Times, "We've become used to the idea of lunatic fringe attacks, but this one was complete misrepresentation."

But the AFA isn't likely to be dissuaded. After all, these are people who found the gay agenda hiding in a Starbucks coffee cup. Indeed, Fischer told the Times, "[The day is] just another thinly veiled attempt to promote the homosexual agenda. No one is in favor of anyone getting bullied for any reason, but these anti-bullying policies become a mechanism for punishing Christian students who believe that homosexual behavior is not something that should be normalized."

I was on Democracy Now! with Amy Goodman on Monday morning talking about the Obama and Romney campaign's use of online and offline data-mining to learn more about you (and then ask you for money). Watch:

You can read my profile of Harper Reed, Obama for America's Chief Technology Officer, here. And here's the how-to guide on how the Obama campaign learns more (and more, and more) about you.

On Sunday, the New York Times covered a lot of familiar ground in a big piece on campaigns' use of consumer data—they've been using these databases since at least 2002—but one interesting nugget in there is the discussion of online shaming. Advocacy groups and campaigns have already experimented in sending out passive-aggressive mailers to voters (citing things like voting history) in order to coerce them into showing up at the polls or volunteering. Now they're branching out into the Internet as well, and using your own circles of friends to do it. (Here's a good example of this kind of pitch, from the Obama campaign, providing an online tracking number and gently asking you to correct the record if it's really true that you haven't given any money.)

Lance Cpl. Gabriel L. Parks, ammo man, and Lance Cpl. Kevin D. Cassara, gunner, both with Machine Gun Section, Weapons Platoon, Lima Company, Battalion Landing Team 3/5, 15th Marine Expeditionary Unit, practice magazine reload drills in the well deck of the USS Green Bay, Oct. 9.
US Marine Corps photo by Cpl. John Robbart III.

At last night's vice presidential debate, Paul Ryan repeated a persistent conservative saw about the Obama administration's plan to let Bush-era tax cuts expire for the rich. "Two-thirds of our jobs come from small businesses," he said. "This one tax would actually tax about 53 percent of small-business income." In the first presidential debate, Mitt Romney struck the same chord, saying that Obama's plan to make wealthy individuals pay Clinton-era taxes was in fact an attack on "the people who work in small business."

The rhetorical appeal is clear: Americans love small businesses. My dad runs one; I do, too. But Ryan and Romney aren't talking about my family, or really any of the mom-and-pops across the country. They're talking mainly about corporate bigwigs and investment firms hiding behind the same tax structures my dad and I use to start a nest egg. They're redefining hedge fund managers, Fortune 500 corporations, and multinational beer empires as small businesses. That's a load of malarkey—and it hits close to home for me.

How does the conservative argument work? Here's a history.