Former U.S. Attorney David Igelsias says Mary Beth Buchanan’s decision to send FBI agents out to question members of the Wecth trial “smells of intimidation.” It’s also odd that federal prosecutors immediately announced they’d retry the case without polling the jury in the courtroom.

Also, we learn from the Pittsburgh Post-Gazette that the judge in the case gave attorneys from both sides strict orders not to record the names of the jurors. If that’s the case, how did Buchanan track them down to send FBI agents to their homes?

The lingering question, if this case show’s that Buchanan’s office is overly aggressive, driven by politics, and will bend (or break) the rules to win, why should she be given the benefit of the doubt in other cases? For example, one of the key points of contention in the post-trial action in the Rottschaefer case is the defense’s contention–and the prosecution’s denial–that the witnesses against the doctor were given deals. If Buchanan and her subordinates have proven themselves to be less than trustworthy in the Wecth case, oughtn’t that cause the courts to take a look at other cases, too?

You may remember her from such hits as "the persecution of Dr. Bernard Rottschaefer," "the first federal obscenity case in 20 years," and "the railroading of Tommy Chong."

Now it seems U.S. Attorney Mary Beth Buchanan may have finally stepped in it but good. This week, a federal jury hung on the 41 public corruption charges Buchanan brought against Pennsylvania medical examiner Dr. Cyril Wecht. A majority reportedly voted to acquit. This after a two-year investigation, a very sympathetic judge, and a bizarre trial in which the defense rested without calling a single witness. A loss or even a hung jury is rare for a U.S. attorney. Their conviction rate is over 95 percent.

Wecht’s attorneys—including former GOP Attorney General Dick Thornberg—say the case was entirely driven by politics (Wecht is an outspoken Democrat). They point out that the trial itself cost about $200,000, while the total amount of money Wecht is alleged to have used from his public position to aid his private practice amounts to about $1,700.

In one post-trial interview, the jury foreman seemed to agree. The feds immediately announced plan to try Wecht again.

What I’m wondering is how the Department of Justice can see fit to spend two years and likely seven figures in taxpayer dollars to investigate a medical examiner for sending personal faxes on his publicly-owned machine, but thus far has seen no reason to look into Mississippi’s Dr. Steven Hayne.

I’ve argued before that the real scandal with this Justice Department is not that it fired a bunch of prosecutors who didn’t share the administration’s priorities and political agenda. The real scandal is just how screwed-up those priorities and that agenda actually are.

After first attempting to deny them the right to counsel, the government is now seeking a gag order to prevent a defendant pain physician, his wife, their family, and his advocates, supporters and former patients from even talking to anyone about their case.

Steven Schneider of Kansas is the latest doctor in the federal government’s crosshairs for over-prescribing painkillers. Schneider ans his wife (who was also arrested) have enlisted the help of pain activist Siobhan Reynolds and her organization, the Pain Relief Network. Reynolds has mounted an aggressive counter-campaign on behalf of Schneider and his patients (who overwhelmingly support him) that goes so far as to question the constitutionality of the Controlled Substances Act (a move that’s admirable, but not likely to be successful).

State and federal authorities have responded by threatening Reynolds with criminal penalties for practicing law without a license. Schneider’s patients now say federal investigators are illegally entering their homes and intimidating them.

Now several Schneider patients say federal agents are forcing their way into their homes without warrants, asking a lot of questions, and even taking items that don’t belong to them.

“They grabbed the door and jerked it open,” says one patient who spoke to KAKE News on a condition of anonymity. “And then they grabbed my left arm and pulled it up behind me. They said we can do this the easy way or the hard way.”

This patient says the agents even took a hand written letter that Schneider wrote her from prison.

The US Attorney’s Office says they can’t comment on specific cases, but they say a warrant is required in order to search someone’s home or to force a person to hand over something that belongs to them. However, a warrant is not needed to talk to someone or to ask for something.

Schneider’s former patients now can’t find doctors to treat even their ailments not related to pain because of the taint that comes with being the patient of an indicted doctor. No doctor wants to risk his own federal investigation. And merely seeing the patient of a doctor under indictment–particularly a pain patient–is enough to get federal authorities sniffing around your office.

The federal government has been particularly underhanded in this case. Early on, they argued against allowing the Schneiders to have a court-appointed attorney, citing the couple’s $700,000 in assets. Problem is, the government was simultaneously attempting to seize those assets under forfeiture laws, meaning any lawyer who took the case stood a good chance of not getting paid. Which meant the couple’s only real hope was a lawyer willing to take the case pro bono.

As with all of these prosecutions of doctors, it’s entirely possible that there were drug addicts among the couple’s patients. The questions here are (1) are addicts allowed to be treated by doctors, too? (2) should doctors who get duped by addicts be held liable for being gullible? (3) should they be held criminally liable? (4) should drug cops and political appointees with no medical training be dictating the difference between acceptable medical treatment and the criminal prescribing of opioid pain medication?

You can probably guess how I’d answer those questions. Meanwhile, it becomes increasingly difficult for people in chronic pain to find doctors willing to treat them. Everybody is scared. And a promising new treatment–high-dose opioid therapy–is being held hostage by overly aggressive cops and prosecutors.

Looking back through old emails, I found one from Dr. Bernard Rottschaefer’s son, which outlined the problems with the government’s expert in the criminal trial. Those problems are numerous. Remember, this is the “expert” the government used to supplement the five patient witnesses, all of whom later admitted in civil suits that they gave false testimony.

The guy knew very little about pain management, particularly the management of chronic pain.

• Dr. Clough was unable to read electronic medical charts.• Dr. Clough admitted to not receiving all the medical records.• Dr. Clough admitted to only reviewing parts of the records he did receive.

• Dr. Clough admitted to post dating controlled substance prescriptions (which was illegal at the time of the trial for under both Pennsylvania and federal law).

• Dr. Clough admitted to having few patients on chronic pain medications (5 in total).

• Dr. Clough admitted to not knowing or having a working knowledge of the blackbox warning of Oxycontin within the Physician Desk Reference. This publication is the gold standard on the proper measures in prescribing a medication and the black box is the strongest warning offered.

• Dr. Clough admitted to having both limited education in pain management and having limited continuous education in pain management.

• Dr. Clough recommended Oxycontin on an as needed basis within his opinion (this is contrary to the FDA approval of the medication and the generally accepted standard). Basically, Dr. Clough recommended taking Oxycontin, a long-acting pain management medication, like a tylenol for a headache.

• Dr. Clough inferred that monthly follow up and monitoring of patients on chronic pain medication is not the medical community standard.

• Dr. Clough admitted that there is no requirement to run tests in order to prescribe Oxycontin to a patient.

• Dr. Clough never met or reviewed the patients in person. He merely reviewed the charts.

• Dr. Clough described and referred to Duragesic (Fentanyl) as “pharmaceutical heroin” before the jury. This is slanderous and wrong.

• Dr. Clough viewed 20 mg of Oxycontin as an excessively high dosage. This is the second lowest dosage for which the medication is available. Oxycontin comes in 10mg, 20mg, 80mg, and 160mg.

• Dr. Clough viewed .5mg of Xanax as an excessively high dose; however this is the second lowest dosage for which that medication is available.

• Dr. Clough admitted to not being familiar with the medical procedure know as air acupuncture.

The full patient records revealed that the women for which the government says Dr. Rottschaefer was wrongly prescribing these medications were getting similar or identical medications from other doctors, none of whom were prosecuted. For this “expertise,” the government paid Dr. Clough $11,000 of your tax dollars so they could put put Dr. Rottschaefer in prison.

The Third Circuit has denied Dr. Bernard Rottschaefer’s appeal.

For background, read my column on the initial prosecution of Rottschaefer here.

The justices declined to hear oral arguments in the case and, judging by the curt opinion, it looks as if they didn’t bother to read the briefs, either. Rottschaefer’s lawyers put together a compelling appeal with new evidence that every government witness against Rottschaefer gave false or misleading testimony. The Third Circuit dismissed those claims in all of two-and-a-half pages.

Incidentally, U.S. Attorney Mary Beth Buchanan’s star witness in the case against Rottschaefer, Jennifer Riggle, is currently a fugitive from justice for other crimes. The career criminal admitted in letters to her boyfriend that she lied on the stand during Rottschaefer’s trial as part of a plea for leniency on her own charges. To this day, Buchanan maintains that despite all of that, Riggle was telling the truth on the stand and Rottschaefer–a doctor with no prior record whatsoever–was lying.

Meanwhile, instead of prosecuting Riggle for her admitted perjury in Rottschaefer’s case, Buchanan has taken to more important matters, like prosecuting a woman for writing fictional (though admittedly depraved) stories on the Internet. Even a former Republican attorney general has called for her to resign, due to her baldly political prosecution in another case. Buchanan also brought the absurd bong case against Tommy Chong, and the first federal obscenity case in 20 years. She may not give a damn about justice, but she’s got a nose for the headlines.

She won’t resign, of course. It’s no secret in Pennsylvania that Buchanan’s angling for a career in politics. She certainly seems to have the moral compass for it.

Over at Reddit, someone reposted this old Stanton Peele piece on Cindy McCain. It’s worth revisiting:

McCain was investigated by the Drug Enforcement Administration after the agency was approached by a former staff member of her charity. The investigation resulted in no charges or prison time for her, and she entered a diversion program. While these records were not made public at the time, Mrs. McCain eventually confessed her drug use when she learned that a reporter was investigating the story.

Is Mrs. McCain to be judged as a pitiable victim or as a criminal felon? This debate is at the heart of the discussion of American drug policy. Should we deal with illicit drug users as victims or as criminals?

Let’s examine Mrs. McCain’s position in these terms. She was the privileged wife of a prominent family and spouse of an important politician, a person who had her own position of prestige and power. Should she not be held at least as accountable for her actions as an uneducated inner-city drug user? After all, she could enter drug treatment at any time she chose, unlike many drug users who find themselves in prison.

Moreover, Mrs. McCain was violating a position of trust by stealing from a charitable organization, using its money and medical expertise to fuel her drug use. Is this not morally more reprehensible than simply purchasing drugs illegally?

Finally, Mrs. McCain was the mother of four children at the time she admits to using drugs–between 1989 and 1992. Her children were born in 1984, 1986, 1988 and 1991. In other words, Cindy McCain was using drugs while raising small children, one of whom she adopted while she was an addict. In most states, family services will remove children from a woman who is known to be an active drug addict, and she would certainly not be allowed to adopt a child while addicted.

John McCain is a hawk in the drug war. He advocates stricter drug laws, penalties and enforcement against drug sellers. He has had nothing to say about redressing our punitive approach toward drug users. Of course, McCain also supports family values. Yet if John and Cindy McCain were not well-off and influential, they might not have a family at all. McCain’s lack of concern for street drug users contrasts sharply with the support and understanding his wife received.

McCain’s condescending, dismissive attitude toward medical marijuana patients only exacerbates the hypocrisy. Cindy McCain’s powerful husband and high profile probably had something to do with the fact that she didn’t get the Richard Paey treatment. But as with Rush Limbaugh, prosecutors likely laid off of her also because she played the drug war game—she admitted she was an “addict,” repented, and sought treatment. Paey had the audacity to insist that he oughtn’t go to jail for treating his own pain, and that he wasn’t an “addict,” but a chronic pain patient who was dependent on the medication in order to lead a normal life.

Contra my friend Jeremy Lott, the problem with the hypocritical practice of letting politicians’ family members get off for drug crimes that land normal people in prison is that it doesn’t seem to do much in the way of making them more sympathetic. It just hardens them into more militant drug warriors. We have to throw Richard Paey in prison so we don’t get any more Cindy McCains. See the logic?

Before you vote, be sure to read up on the candidates below. A couple of caveats: Since this is the first year of what I’m sure will (unfortunately) be an annual award with many deserving candidates, some of the transgressions committed by this year’snominees extend back to before 2007. I’m also taking two candidates out of consideration. The first is Alberto Gonzalez, mostly because he’d be the overwhelming winner if I included him. The other is Mike Nifong, who while certainly deserving, has at least been held accountable for his transgressions. The prosecutors below have not.

The nominees are…

Horan retired in September. Ebert won reelection this year.

DEA Administrator Karen Tandy is retiring. She’ll be taking an executive position with Motorola, also the chief corporate sponsor of the DEA’s traveling exhibit that attempts to link drug use to September 11 (also a company I won’t be patronizing anytime soon).

Tandy’s tenure got off to an awkward start when medical marijuana activist and post-polio patient Suzanne Pfeil attempted to give her a letter at her confirmation hearings in 2003. Pfeil became an activist after she was awoken in 2002 by DEA agents raiding the treatment facility where she was staying. She opened her eyes to see assault weapons pointed at her head. When the agents ordered her to stand, Pfeil, a paraplegic, replied that she couldn’t. So they cuffed her hands behind her back and left her on the bed for hours.

When Pfeil tried to give Tandy a letter detailing her ordeal, Tandy rather ungracefully ducked out a back door, then fled down a Capitol Hill hallway as Pfeil followed in her motorized wheelchair.

Tandy also presided over much of the DEA’s painkiller witch-hunt. Her tenure included the debacle where the DEA graciously agreed to post a set of guidelines doctors could follow when prescribing opiods to ensure they were complying with the law, but then pulled the guidelines down when lawyers for pain specialist Dr. William Hurwitz attempted to use them in his defense against drug trafficking charges. Under Tandy, pain patients and their doctors would get no quarter. The law would be whatever the DEA said it was, and the agency reserved the right to change what the law would be on a case-by-case basis.

Tandy once sent a letter to the editor in reply to an op-ed I wrote on the painkiller issue. I took apart her reply line-by-line here.

But if I had to name just one "highlight" of Tandy’s reign at the DEA, I’d have to go with her spirited defense of alcohol prohibition, which in itself says a lot about how she approached the drug war.

Given the nature of the job, I doubt the next DEA administrator will be any better than Tandy. But you really couldn’t do much worse.

One other notable item from the Washington Post article linked above—we now have DEA agents in 85 countries around the world.

His clemency hearing is tomorrow, and should things go well, he could be released.

Let’s hope it goes well. Then it’s time to get started on changing Florida’s odious painkiller statutes.

Last year, I linked to a local news report about Penny Spence. Hers is yet another case of painkiller hysteria from the same state that brought you Richard Paey’s 25-year prison sentence, and Mark O’Hara’s felony conviction for possession of Vicodin tablets for which he had prescription.

Spence was arrested when, after a 2005 car accident, a police officer reached into her purse and found 48 Percocet pills for which Spence did not have a prescription (Spence was not driving under the influence of the medication at the time). The total weight of controlled narcotic in the pills amounted to less than half a gram. But as was the case in the state’s pursuit of Richard Paey, for purposes of charging and sentencing, Florida law counts the total weight of all the medication in which the controlled substance is contained. In this case, prosecutors threatened to charge Spence for the full 49 grams of pills in the bottle, even though they were 99 percent Tylenol.

Spence admitted at the scene she was self-medicating with the Percocet. She’d begun to suffer severe back pain after serving as the primary caretaker for her mother, who had recently died of Lou Gherig’s Disease. The Percocet had originally been prescribed for her mother. Spence had no prior criminal record, and there was no evidence she has distributed the medication to anyone else.

Nevertheless, prosecutors threatened her with a 25-year sentence unless she plead to a felony. Spence didn’t want to plea, because she had hopes of becoming a nurse, which she wouldn’t have been able to do with a felony on her record. Prosecutors showed no mercy:

…prosecutor Daus expressed amazement that anyone would criticize the house arrest deal he offered Spence—something not all narcotics defendants receive.

"If I had said, ‘She’s getting 25 years in prison, there’s no deal,’ you’d have a good story,’ " Daus said. "But I think I made her a fair deal. She would have no prison time. It shows the system does work. I think [FAMM] should be giving me an award."

Spence, he said, "just wants to have her cake and eat it too."

I first wrote about this case on my personal blog last year. Last week, I found Spence’s sister on an email forum about the painkiller issue. Spence’s sister says that because Spence feared she’d get the same 25-year, maximum-security-prison sentence given to Richard Paey, Spence agreed to plea no contest to drug trafficking. For possessing less than half a gram of Percocet without a prescription, she was sentenced to a year of house arrest and three years of probation. She’s also now a convicted felon.

If you’ve ever taken a friend or family member’s prescription pain medication to self-medicate, take note.

In an otherwise decent article about how the federal government is using terrorism lingo and crime-fighting tools to go after pot-growers, Scott Thill throws in this line:

Unable or unwilling to solve the nation’s crippling meth addiction or its hypocritical dependency on prescribed narcotics like oxycontin, the Office of National Drug Control Policy (ONDCP) recently rang the terrorism alarm to nail pot growers in Redding’s Shasta-Trinity National Forest in California.

I appreciate Thill’s broader point, but this line is completely unnecessary. It’s also ignorant. The federal government is, frankly, going way too far in it’s efforts to fight meth and prescription painkillers. To call characterize the DEA’s railroading of doctors, it’s contempt for people suffering from chronic pain, and the stupid cold medicine registration laws as “unwilling” is really an ill-informed characterization of what the government’s been up to.

And I know it’s fun to demonize the pharmaceutical industry and all, but the phrase “hypocritical dependency,” and it’s placement next to a line about meth implies that the government is looking the other way while people get hopelessly addicted to prescription painkillers. That’s just not the case. First, as noted, the government’s going way too far in its regulation of Oxycontin, to the point of storming doctors’ offices with SWAT teams. Second, “dependence” isn’t the same as “addiction,” and to imply as much is to adopt the inaccurate and misleading rhetoric used by the DEA and ONDCP. Millions of people are “dependent” on prescription painkillers in the same way that diabetics are “dependent” on insulin–it enables them to live a normal life. There’s not a damn thing wrong with that.

Given that there are some 30 million Americans with untreated chronic pain, we need more doctors prescribing opiates, not fewer.

…this week is an overview of and updating on the ongoing, completely outrageous federal prosecution of Dr. Bernard Rottschaefer.

If you’ve been following this case over the last couple of years on this site, have a look. Believe it or not, it’s gotten even worse.

Great appearance on Fox News by Siobhan Reynolds and Barry Cole on the topic of opiod painkillers.

I think they won rather handily.

Rep. Bobby Scott’s Subcommittee on Crime held a hearing today on the DEA, painkillers, and pain treatment. It’s been a long time coming.

I regret that I couldn’t make it, nor did I remember to watch the live stream. I hope there will be an archive soon.

One of those testifying was Siobhan Reynolds of the Pain Relief Network. Siobhan’s ex-husband was a longtime chronic pain sufferer and, sadly, passed away a short time ago. She’s quite a compelling speaker. When I saw her speak on the Hill a few years ago, she had half the room in tears. That forum was my first in-depth exposure to this issue, and it motivated me to want to continue to work on it.

Here is Siobhan’s written testimony. Here’s a Cato event I hosted, featuring Siobhan and Linda Paey, wife of imprisoned pain patient Richard Paey.

Let’s hope this hearing results in some long overdue changes in policy. Frankly, anything short of delegating the regulation of pain treatment to medical boards and professional organizations would be a disappointment. Drug cops have no business telling doctors how to practice medicine.

Of all the problems doctors face today–onerous HIPAA regs, the painkiller prosecutions, battling with HMOs–you’d think the AMA would have more important things to spend its time on than putting out bogus polls about college kids on spring break and–the latest nonsense–voting on whether people can get “addicted” to video games.

Curiously, the AMA no longer makes its membership statistics public. I’d guess that’s because they aren’t doing so well. Most doctors I’ve talked to say the organization is a joke. One thing’s clear: It’s no longer an advocate for doctors. Or patients. It’s an advocate for the more militant wing of the public health industry.

Dr. William Hurwitz was convicted over the weekend for a second time on drug trafficking charges. John Tierney has been doing some tremendous reporting from the trial. After the verdict, he has interviewed three of the jurors, and writes this report :

They said that the jury considered Dr. William Hurwitz to be a doctor dedicated to treating pain who didn’t intentionally prescribe drugs to be resold or abused. They said he didn’t appear to benefit financially from his patients’ drug dealing and that he wasn’t what they considered a conventional drug trafficker.

So why did find him guilty of “knowingly and intentionally” distributing drugs “outside the bounds of medical practice” and engaging in drug trafficking “as conventionally understood”? After attending the trial and talking to the jurors, I can suggest two possible answers:

1. The jurors were confused by the law.
2. The law is a ass (to quote Mr. Bumble from “Oliver Twist”).

I can’t blame the jurors for being confused, because that’s the norm in trials of pain-management doctors. The standard prosecution strategy is to charge the doctor on so many counts and introduce so much evidence that the jurors assume something criminal must have happened. Their natural impulse, after listening to weeks of arguments, is to look for a compromise by digging into the mountain of medical minutiae – and getting in so deep that they lose sight of the big picture.

Tierney finds that the jurors essentially convicted Hurwitz of not scrutinizing his patients enough. None of the jurors he talked to claim to know what the legal standard "outside the bounds of medical practice" actually means. Instead, they told him, "we just had to go with our gut."

The ramifications of Hurwitz's conviction on the continuing treatment of pain are ominous. If Hurwitz can go to prison for not being suspicious enough of his patients, the message to pain specialists is clear: Err on the side of mistrust, suspicion, and undetreatment, or risk going to prison.

This comment from a doctor to Tierney’s post captures the dilemmas this dumb campaign imposes on pain specialists:

The Hurwitz persecution scares the bejabbers out of me. If I refuse to treat pain adequately that is a criminal offense. If I over treat pain that is a criminal offense. If I cannot tell a smooth, practiced, professional liar from real pain that is a criminal offense. I am expected to be all things to all people, omnipotent and infallible - and if I fail I will be stripped of my license or sent to prison.

Just recently I received a phone call that one of my patients was selling my narcotic prescription on the street. Was this real, a crank call, or a sting operation by the prosecutor? My only avenue of survival was to immediately file a complaint against the patient with BAYONET (a narcotics strike force). Welcome to 1984, Hurwitz jurors. So now that you have forced me to survive by turning people in to the secret police, how do you feel about coming to me and discussing your personal issues?

Turning the doctor-patient relationship into an adversarial relationship is yet another often-overlooked by-product of the painkiller hysteria.

By the way, where is the American Medical Association on all of this? Aren’t they supposed to be advocates for doctors? These prosecutions are an assault on some of the most sacred tenants of the medical profession. Where’s the outrage.

Oh yes. The AMA is too busy putting out bogus “studies” about how college students like to party and drink on spring break. The press release for that fraudulent exercise in neoprohibition still sits on the AMA website, by the way. Without a correction.

John Tierney reports:

His retrial in federal court here isn’t over yet, but Dr. William E. Hurwitz is already doing much better than he did the first time. Judge Leonie M. Brinkema has dismissed the most serious charges against him.

[...]

In dismissing the charges, the judge cited two arguments made by the defense. One was that the prosecution had not proved that the painkillers prescribed by Dr. Hurwitz caused injury and death. The other argument relied on a Supreme Court decision last year that federal narcotics laws did not give the Justice Department the power “to define general standards of medical practice” — which is what federal prosecutors had effectively been trying to do in the cases of Dr. Hurwitz and other doctors.

The prosecutors had argued that a doctor could be a drug trafficker even if he didn’t know the drugs he prescribed were being resold, and even if the drugs weren’t actually being resold. A doctor was supposedly violating federal law simply by issuing a prescription that was outside the bounds of “medical practice.” Because of this interpretation, trials of Dr. Hurwitz and other doctors turned into debates over whether their prescribed doses of Oxycontin and other opioids were medically appropriate for the patients.

But the Supreme Court, in its Gonzales v. Oregon decision last year, reaffirmed the states’ responsibility to set medical standards and ruled that federal law merely ‘’bars doctors from using their prescription-writing powers as a means to engage in illicit drug dealing and trafficking as conventionally understood.’’

This is very good news, particularly if bleeds into other courts. The federal government’s standard on what was a prosecutable offense with respect to opiods was basically “whatever we say it is.” The standard was not only too vague for jurors to render a just conviction, it was too vague for well-intentioned pain doctors to know if they were abiding by the law. Hurwitz could still be convicted, but the jury would now have to find that he knowingly and intentionally prescribed drugs to be resold on the street.

I’d still rather these matter be determined by peers who sit on medical boards, not narcotics cops. But if these cases are going to be brought in criminal court, this is a more appropriate standard. Some of these doctors are getting hard time for sole offense of getting duped by their patients.

Pete Guither notes that a man the U.S. government has called “one of the world’s worst terrorists” was released from Guantanamo last week, and will be free from an Australian prison by New Year’s. Make of that what you will.

Meanwhile, Pete contrasts Mr. Hicks plight to that of Richard Paey, who continues to serve his 25-year sentence in a maximum-security prison in Florida. His crime of course was procuring painkillers to relieve the pain from his Multiple Sclerosis and the botched back surgery that left him a paraplegic.

Mitt Romney recently responded to a heckler who attacked his Mormon faith by stating, "We need a person of faith to run this country."

In a just world, this would be a scandal far above and beyond Obama's "wasted" comment.  Romney and his supporters have already deflected as religious bigotry (correctly, in my view) the idea (supported by polls) that America isn't ready for a Mormon in the White House.  But Romney has no problem declaring that America isn't ready for an atheist or agnostic in the White House.  Frankly, that's offensive.

Of course, Romney's comment hasn't created much of a stir, likely because most of America agrees with him—86 percent, according to one recent poll.

As is often the case when religion is in the news, the dumbest take on all of this comes from the insufferable Michael Medved.  He writes:

The Romney campaign will no doubt correct many myths about Mormonism, but the public’s reluctance to support an atheist actually makes sense. The Declaration of Independence makes clear that our inalienable rights come from God – we are “endowed by our Creator” – so that anyone who openly denies God’s existence is likely to take the more conventional (and dangerous) view that rights are a gift from government, not the Deity. "The government giveth, the government taketh away…"– the peril in this approach is too obvious to require explanation. 

Similarly, any atheist would be far less willing to affirm absolutes, and far more likely to embrace moral relativism – a real problem in leading a country that’s currently threatened by absolute evil, and requires clear distinctions between timeless right and wrong. Without God, morality becomes negotiable and malleable, and defending God-given rights (for instance) becomes much less imperative.

Where to begin?  How about the fact that Thomas Jefferson, the author of the very Declaration of Independence Medved cites, was at most a deist, and likely an agnostic?  Jefferson — who even Medved euphemistically acknowledges in the same post was a “religious non-conformist” — had doubts about Christian faith in the supernatural that would probably make him damn-near unelectable today, certainly in Medved's view.

Many of the American founders were, of course, also deists, a philosophy that's hostile to religion, and in that its ultimate appeal is always to reason is the very antithesis of Romney and Medved's requirement that our political leaders be "men of faith."

Yes, Washington, Jefferson, Madison and others publicly made references and invocations to God.  I'd guess that's because they understood that the best way to get a nation of Calivinists to take up arms against the King was to convince them that God was on their side.  Every decent leader before and since has understood as much, from Ceasar to the Crusades to Tony Dungy.

Medved is also misguided in stating that for one to subscribe to natural rights theory, one must believe those rights are conferred by a deity.  Kant most famously arrived at natural rights theory without acknowledging a creator.  But even Locke, while not a deist, showed that one could arrive at natural rights through reason, not religious faith in the idea that innate rights have to come from a divinity.

Of course, a little common sense also reveals the silliness in Medved's post.  The idea that only a president who believes in God can respect our natural rights flies in the face of the countless example in human history of leaders who trampled all over the rights of their citizens precisely because they believed themselves to be acting on the authority of God.  Ask yourself, who's more likely to become a tyrant:  An atheist who believes he serves no power higher than his fellow man, or a man of faith who believes he's acting on the authority of God?

Which brings me to the most obvious refutation of Medved's offensive post—President Bush.  The same man who famously named Jesus Christ as the philosopher who most affected his thinking in the 2000 primaries has claimed the power to spy on U.S. citizens without a warrant, arrest them without a charge, detain them without a lawyer, hold them indefinitely without an indictment, torture them, try them in secret without giving them access to the evidence against them, and convict them without a jury.  Some in his administration even believe the government should be able to arrest journalists who dare expose these abuses, and charge them with treason. 

If you believe what some in the Bush administration have told reporters, President Bush has asserted these powers precisely because he believes he's acting with the guidance and blessing of God.  Medved in fact goes on to implicitly endorse these trespasses on natural rights later in the same post when he says that only a religious man can apprecicate the "good vs. evil" at stake in the war on terror.

Of course, that's just the beginning.  Bush's Justice Department, under the leadership of men-of-faith John Ashcroft and Alberto Gonzalez has been incredibly hostile to the Fourth Amendment.  Bush's secret service doesn't seem to have much respect for the First Amendment, either.

And these are only the rights actually enumerated in the Constitution.  As Medved correctly explains, the Constitution only grants limited powers to the government.  We retain all rights not in direct conflict with those limited powers  The Bill of Rights, therefore, exists only to explicitly grant the rights the founders deemed most inviolable—basically, the rights necessary to preserve all of our other rights.  It was never meant to be exhaustive.  James Madison in fact opposed the Bill of Rights because he feared future generations would begin to see it as government granting only the enumerated rights to the people, and not merely a recitation of rights we already have.  That's why the framers included the Ninth Amendment, which I'm sure Medved would agree is under a proper interpretation of the Constitution redundant.

So how has man-of-faith Bush and his men-of-faith in the Justice Department Ashcroft and Gonzalez respected the Ninth Amendment and the unenumerated rights in the Constitution?

Please.  Given their contempt for the expressed rights in the Constitution, it shouldn't be surprising that Bush & co. have no concept of or respect for unenumerated rights.  If the Ninth Amendment means anything, one would think it would grant a sick person the right, within the privacy of his own home, to take a drug that alleviates his suffering.  But guided by their faith, a faith that says marijuana is immoral, Bush, Ashcroft and Gonzalez not only don't consider the medical marijuana an unenumerated right, they're willing to use federal coercion to override states that have determined such a right exists.  Gambling.  Pornography.  Access to prescription painkillers.  All are bald refutations of Medved.  Not only are they examples of the men-of-faith who run this country not respecting natural rights theory, they're examples where these men's faith itself is the reason they're using government to subvert our rights.

I'd also note that many (though certainly not all) of the people who have eloquently argued against these trespasses on our freedom are atheist or agnostic liberals and libertarians.

I'm not arguing that religiosity is incompatible with good government.  I'm arguing that it's offensive and contrary to all available evidence to suggest that only religious people are capable of respecting our rights.