The Pentagon delivered an embarrassing public blow Friday to the chief prosecutor for the military commissions at Guantanamo Bay, Brig. Gen Mark Martins, rejecting his request that certain charges against the alleged September 11 plotters there be dismissed in order to reduce legal uncertainty about the cases.

Martins announced last week that he was seeking to drop the conspiracy charge in the military commission case against Khalid Sheikh Mohammed and four of his alleged cohorts. The prosecutor said a federal appeals court ruling in October throwing out a material support of terrorism charge in a case against an alleged driver for Osama bin Laden raised questions about the viability of conspiracy charges in other pending cases.

The appeals court's decision set off a debate within the administration about how to proceed, according to reports in the New York Times. Martins reportedly wanted to drop the issue and the pending conspiracy charges, while some at the Justice Department wanted to pursue a pending appeal in another military commission case and leave the conspiracy charge as is. The Times also reported a split at the Justice Department, with Attorney General Eric Holder overruling Solicitor General Donald Verrilli to persist in the appeal.

On Friday, the Pentagon issued a press release saying that the convening authority for the military commissions, retired Vice Admiral Bruce MacDonald, had rejected Martins's request to drop the conspiracy charges.

"The convening authority noted that dismissal at this time would be premature, as the viability of conspiracy as a chargeable offense in trials by military commission is still pending appellate review," said the Pentagon release, which did not identify MacDonald by name. The release said he noted that "Congress included conspiracy as a chargeable offense in the Military Commissions Acts of 2006 and 2009, and that two Presidents had signed those Acts into law," that the Justice Department maintains the charges are still viable and the issue has not been definitively decided by the courts.

The situation is awkward for Martins not just because of the disagreement, but because he'd been quite public about his view of the issue: issuing a press statement and granting a lengthy interview to the blog Lawfare to discuss the matter. Martins is also regarded extremely favorably, perhaps even reverentially, in the national security law community.

"I don’t think this contributes to public confidence in the administration of justice before the military commissions," said Eugene Fidell, who teaches military law at Yale Law School. "What you see here is a very rickety structure driving the train....It shows how strange this system is that it is unwilling to allow a chief prosecutor to proceed as he sees fit in a matter of legal strategy and legal judgment."

Fidell said the reversal of Martins's position may have been intended to bolster the Justice Department's position in the conspiracy case pending in the D.C. Circuit.

One Guantanamo defense lawyer said Friday that the action underscores defense complaints about the structure of the system.

"The Convening Authority's decision to require a charge to go forward when the Chief Prosecutor says that it is not legally viable demonstrates that the Convening Authority is in no way a neutral body," said James Connell, an attorney for one of the 9/11 defendants. "The Convening Authority's attempt to drive the prosecution forward shows that the military commission structure is fundamentally unfair.”

Connell's statement also said that Martins filed a motion with the military commission judge on Wednesday acquiescing with "certain conditions" in a defense motion to dismiss the conspiracy charge. There is no sign on the public docket at this point that Martins has withdrawn or modified his filing on that point.

Former Guantanamo prosecutor Morris Davis said the disagreement undermines the notion that it was well-established that conspiracy was a law-of-war crime back in 2011.

"We can't agree within our own government yet we're charging people with it, saying ten years ago they should have known it was criminal conduct," Davis said. "It's a bit of an odd argument."

Davis also said he agrees with Martins that keeping the charge in the 9/11 case is unwise. "The KSM trial doesn’t rise or fall on conspiracy and it seems rather foolish to add in an offense that’s dubious or wait months and months on an answer when it's really not necessary," the former prosecutor said.

UPDATE (Friday, 4:51 P.M.): This post has been updated to correct a typographical error.

President Barack Obama's Jobs Council hit a notable milestone on Thursday: one year without an official meeting. The 26-member panel is also set to expire at the end of the month, unless Obama extends its tenure.

The group, formally known as the President's Council on Jobs and Competitiveness, last convened on Jan. 17, 2012 for a White House session where it presented formal recommendations to Obama. It was the panel's fourth official meeting since it was created in early 2011.

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A spokesman for Jobs Council chairman Jeffrey Immelt, who's the CEO of General Electric, referred questions about the panel's future to the White House.

A White House spokeswoman had no comment Thursday.

POLITICO caused a stir last July by reporting that the panel had not convened officially for six months. The story noted some simmering tension between the slew of business executives on the board and a pair of labor leaders who are also members of the group. The report also said that some CEOs were reluctant to appear with Obama at the height of the presidential campaign and that Obama's public attacks on GOP presidential nominee Mitt Romney for outsourcing complicated the idea of an election-season sit-down between the president and the business leaders.

Romney leapt on the story by accusing Obama of neglecting the panel and the broader issue of job creation. The White House's initial response to the report also fanned the flames when Press Secretary Jay Carney said Obama was too busy to meet the panel, a remark the Obama aide later clarified by saying the president was "extremely appreciative" of the group's work.

Immelt's spokesman, Gary Sheffer, said Thursday that the council has not been idle in the past year—despite the lack of a public meeting or a full group meeting with Obama. The GE spokesman pointed to a series of "listening and action" events across the country where members of the council—usually one or two of them—talked about the panel's work and solicited ideas from the public.

"The Council was focused in 2012 on implementing the recommendations made in its three reports. Of the 60 recommendations for executive action, significant progress has been made on 54. Also Congress passed legislation on six recommendations made by the Council," Sheffer said in an email. Council recommendations led to administration initiatives to fast-track infrastructure projects, accelerate the processing of business and tourist visas, and a program to "look back" through existing regulations for those that are outdated and burdensome, Sheffer added. He also pointed to a series of public-private initiatives council members launched to jump start job creation.

It seems unlikely the panel will meet before Jan. 31. Its meetings are required to be announced in the Federal Register at least 15 days in advance and no future meeting has been noticed, though the notices for none of the four official sessions actually made it into the official docket 15 days ahead of time.

Despite the lack of public council meetings in the past year, council members have convened a series of private conference calls where they heard reports from and interacted with senior Obama Administration officials like National Economic Council chair Gene Sperling and Education Secretary Arne Duncan.

Though those calls were not open to the public, the public recently got some insight into what those discussions may have been like when Jobs Council member Robert Wolf scored a half-hour-long interview with Sperling earlier this month for Wolf's Reuters TV show, "Impact Players."

Wolf, former chairman of the  American divison of Swiss bank UBS, launched the show in September. The Reuters website describes Wolf as "one of President Obama’s major fundraisers and outside advisers on economic issues."

The Jobs Council is the successor to another outside panel Obama used during his first two years in office, the President's Economic Recovery Advisory Board, headed by former Federal Reserve chief Paul Volcker.

The American Civil Liberties Union of Pennsylvania filed a lawsuit Wednesday challenging the arrest of a man who was recording police activity on his cellphone.

According to the complaint in Christopher Montgomery v. City of Philadelphia, in January 2011, Montgomery observed police making arrests after a disturbance and recorded the incident on his iPhone. He was arrested, held for 45 minutes and his video was deleted from his phone. He was charged with and found guilty of disorderly conduct.

The lawsuit claims recording police officers is protected by the First Amendment.

"As the role of the citizen journalist increases in these tense situations, it's crucial that everyone holds up their recording devices and holds the powerful accountable," Montgomery said in a release from the ACLU.

The ACLU calls the lawsuit the first in a series challenging “routine” action by the Philadelphia police.

This blog has written before about police recording issues. Most recently, the Supreme Court declined to hear a case from Illinois challenging a law against recording police officers, leading a lower court judge to finalize a decree allowing the Illinois ACLU to record officers publicly engaging in official duties and barring the state from enforcing eavesdropping laws against them.

Additionally, the Washington, D.C., police department has issued an order instructing its officers to not interfere with citizens recording their actions, which stemmed from a settlement in an ACLU case in D.C. on the subject.

A spokeswoman for the Philadelphia Police Department said the department was unable to comment on open litigation.

A federal appeals court ruled Wednesday that preventing reporters and photographers from entering active polling places is constitutional, saying that a Pennsylvania law to that effect does not violate the First Amendment rights of the press.

The case, PG Publishing Co. v. Aichele, brought by the parent company of the Pittsburgh Post-Gazette, challenged a state law that said all persons aside from select officials, voters and those giving assistance to voters must remain 10 feet away from a polling place during voting. The Post-Gazette sued after it said its reporters were barred from observing voting sign-in in Allegheny and Beaver Counties, an issue they said was especially important in light of new voter ID laws taking effect that election cycle.

The Post-Gazette argued the media’s right to enter a polling place is protected by the First Amendment and sought a consent decree giving them polling place access. The district court refused, and the circuit court held, 3-0, that the First Amendment does not grant the press access to voting venues – which it ruled are a “nonpublic forum.”

In the court's opinion (posted here), Judge Joseph Greenaway Jr. wrote, citing Branzburg v. Hayes, “The Supreme Court’s pronouncement on this issue is unequivocal: ‘[T]he First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally.’”

The court held that because voting is traditionally considered a secret activity, and because the likely harm of letting the press into a polling place in terms of disruption of voting outweighs the potential public good, under the “experience and logic” test voting places are not considered public forums.

PG Publishing also argued its 14th Amendment Equal Protection rights were violated because, while it was barred from entering polling places in the two counties, other reporters in other counties were not prevented from entering, and the Post-Gazette had been able to report inside voting places in Allegheny County in prior instances.

The court held selective enforcement of a law does not always constitute a violation of Equal Protection, and the Post-Gazette had no evidence it was intentionally singled out for different treatment, thus throwing out the 14th Amendment argument.

One interesting footnote in the decision: The court mused on whether there was any distinction anymore between members of the press and the general public with the growth of technology.

“This brings us to the next concern, raised at oral argument: Who is a member of the press? Even if we were inclined to find a special First Amendment right for the press in this case (which we explicitly refuse to do), the class of persons to whom such a right is applicable is almost boundless,” Greenaway wrote in a footnote.

“More recently, membership in the Fourth Estate has been democratized. Access to blogs, smartphones, and an extensive network of social media sites (not the least of which are Twitter and Facebook) have transformed all of us into potential members of the media. While in almost any other situation this would be a boon to a free and democratic society, in the context of the voting process, the confusion and chaos that would result from a potentially limitless number of reporters in a polling place would work the opposite effect, potentially creating confusion, frustration, and delay. This is to say nothing of our earlier holding that the rights of access for the press and public are co-extensive. In this situation, anyone could record in the polling place if the First Amendment protected the right of access thereto," the judge added.

The implications of that statement are not explored further in the opinion.

The Pennsylvania’s Attorney General’s Office declined to comment on the decision.

PG Publishing did not immediately responded to a request for comment. The lawyer for PG Publishing told a Pittsburgh Post-Gazette reporter that the paper planned to appeal to the Supreme Court.

UPDATED: (Thursday, 3:59 p.m.) Updated with the Pennsylvania attorney general's response.

In what's believed to be the only remaining adult obscenity case pending in the federal court system, a California man was sentenced Wednesday to four years in prison for producing fetish pornography videos that he claimed were "shock" art.

Ira Isaacs, 61, was convicted of five felony obscenity charges at a jury trial in federal court in Los Angeles in April. Two earlier trials resulted in mistrial: one due to publicity about the judge and another due to a hung jury.

The Justice Department announced Isaacs's sentence in a press release Wednesday, but the release did not include the customary quotes about the importance of the case or the deterrent the government hoped it would provide.

Anti-pornography groups and some lawmakers have criticized the Obama Administration and Attorney General Eric Holder for failing to pursue adult obscenity cases and for disbanding a small task force the Bush Administration set up to focus on such cases. Holder has acknowledged his priority is on child pornography cases, but he has not ruled out pursuing adult obscenity.

While the Obama Administration does not appear to have filed new cases about adult pornography, it did allow several cases initiated prior to 2009 to continue. Isaacs's case, filed in 2007, is the last of those still working its way through the system.

With pornography ubiquitous on the internet, the Bush Administration focused its efforts on material it deemed aberrant. According to the Justice Department, Isaacs's films involved "human bodily waste [and] sex acts with animals." There were also allegations that the women who acted on the films were high on drugs Isaacs provided, though he was not charged with any drug offenses.

In imposing the 48-month sentence, U.S. District Court Judge George King rejected Isaacs's claims of being an artist protected by the First Amendment. However, he did not sentence Isaacs to the term of as much as seven years that prosecutors recommended.

"I have totally rejected during the course of the trial that he's a shock artist," King said according to the adult industry news website xbiz.com. "He has cloaked himself as a First Amendment defendant. But the fact is that he did it for money. He's not a defender of the First Amendment. He cheapens the First Amendment."

Isaacs, who has pledged an appeal, disagreed.

"Bottom line is the artist determines their art," the defendant told XBIZ. "There is no freedom of speech if you have limitations."

Obama administration officials claim that they've pursued adult obscenity charges in a variety of cases since the president took office. However, experts on both sides of the debate say those cases generally involve a plea bargain to resolve child pornography charges or other offenses.

The only other adult obscenity case known to have gone to trial during the Obama Administration, against video director and performer John Stagliano, ended with a judge-ordered acquittal in 2010.

A conservative gadfly filed a lawsuit Tuesday charging that the task force President Barack Obama set up last month to provide recommendations on policies to rein in gun violence broke the law by meeting privately and without proper public notice.

Attorney Larry Klayman, who runs an organization named Freedom Watch, filed the suit in federal court in the Middle District of Florida.

"The American people, whose rights to gun ownership stem from colonial times and are enshrined in the U.S. Constitution, are being illegally shut out of the process," Klayman said in a statement. "Open government is more honest government.”

Under a 1972 law, the Federal Advisory Committee Act, groups with an official role advising the federal government generally have to meet in public and publish notices of their meetings 15 days in advance. However, the requirement only applies to groups including people who are not federal employees and does not apply to groups consisting solely of federal officials.

Klayman's lawsuit (posted here) asserts that outsiders have been part of the Obama administration's gun policy development panel, which was set up after the shooting spree in Newtown, Conn. and has been headed by Vice President Joe Biden. The suit cites "national media" reports that "lobbyist from the video game industry, Walmart and other private lobbyists...fully participated in non-public meetings of the [task force] as if they were members of the [task force], and, in fact, were members of the [task force]."

The White House had no immediate comment on the lawsuit, but previously told POLITICO that there are "no non-government participants" in the group developing the gun policy proposals. Some press reports have described outsiders as being part of the task force, but the White House says it has simply been consulting outsiders in developing the policy—not giving outsiders a direct role in making the recommendations.

Obama aides—perhaps trying to head off lawsuits like the one filed Tuesday—insisted at the outset that there was no formal task force. However, in a TV interview aired Dec. 30, the president used just those words. "I will put forward a very specific proposal based on the recommendations that Joe Biden's task force is putting together as we speak," Obama told NBC's "Meet The Press."

The working sessions of all of the Biden group's meetings have been closed to the press and public, though a press pool has sometimes been allowed to take pictures and briefly hear from Biden at the beginning of the sessions. He suggested at one of the first meetings that excluding the press from the talks would encourage "a frank discussion."

The lawsuit asks a judge to prohibit the task force from further meetings and that the "issuance and implementation" of the task force's recommendations also be blocked. Obama is scheduled to announce his gun policy recommendations, based on the task force's work, Wednesday morning. It does not appear Klayman has filed any emergency motion that could win an order blocking the recommendations, even if a judge were willing to issue one. The case was assigned to Chief Judge Anne Conway, who was appointed by President George H.W. Bush.

While there's little evidence that outsiders have had a formal, ongoing role in the gun-policy process, the allegation they have may be enough for the suit to proceed and perhaps get to the discovery stage.

A similar suit Klayman filed in Washington in 2009 over Obama's health care policy process remains pending. Thus far, the judge assigned to that case has refused to dismiss it based solely on the White House's assertions that outsiders consulted in the process of drafting health care reform legislation played no continuing, ongoing role in the process.

Justice Clarence Thomas, famous for sitting all-but-silent during the Supreme Court's oral arguments, briefly broke that tradition Monday with a joke about the Ivy League. Precisely what he said, however, remains a subject of dispute.

Thomas's rare interjection came during a case brought by an indigent Louisiana inmate who challenged his conviction on murder, armed robbery and other charges after his case was delayed for years due to the local government's failure to fund defense counsel qualified to handle a death-penalty charge.

(PHOTOS: Supreme Court highlights 2012)

After Justice Scalia observed that one of the inmate's lawyers graduated from Yale and another from Harvard, suggesting that they were talented attorneys, Thomas chimed in. The official transcript (posted here, see page 40) has Thomas saying simply, "Well, he did not--" The transcript says his remark was followed by laughter.

Subsequent remarks in the transcript, including the arguing attorney's shout-out for Louisiana State University, suggest that Thomas's joke involved a Yale degree being no guarantee of competence. Or perhaps he was talking about a Harvard degree. Or both.

Thomas is a Yale Law graduate whose long-strained relationship with the school has defrosted a bit recently. So it could have been a dig at his alma mater or a dig at its principal rival.

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It's been nearly seven years since Thomas asked a question or made a public comment at the court's oral arguments. Yet, despite his reputation, Thomas doesn't remain completely silent on the bench. On opinion days, he reads summaries of court opinions he has authored. And he often chit-chats with justices on either side of him during oral arguments, while almost always refraining from any comments audible to counsel, onlookers or the court's recording system.

The mystery of what Thomas said Monday could be resolved on Friday when the court is expected to release audio of the week's arguments.

The Supreme Court on Monday declined the Republican National Committee's request to lift a three-decade-old court order that limits the national GOP's ability to challenge voters' eligibility at the polls.

The case, Republican National Committee vs. Democratic National Committee, dealt with a consent decree issued in 1982 that prevents the RNC from engaging in some voter fraud prevention efforts without prior court consent. It specifically said the RNC could not engage in ballot security efforts (later defined in 1987 as “ballot integrity, ballot security or other efforts to prevent or remedy vote fraud,” according to the U.S. Court of Appeals for the Third Circuit opinion), especially in areas where racial or ethnic makeup could be considered a reason for the activities.

A response to claims of voter intimidation in minority areas in the 1970s and early 1980s, the decree allowed the RNC to continue “normal poll watching” operations while barring activities that could be aimed at voter suppression, though the RNC complained to the courts that the distinction was unclear and difficult to follow. The decree effectively put the national party on the sidelines as concern about voter fraud became more and more pronounced in GOP ranks in recent years and as states passed a series of voter-identification measures.

In deciding the case, which stems from a 2008 lawsuit brought by the DNC, the district court clarified ballot security efforts as “any program aimed at combating voter fraud by preventing potential voters from registering to vote or casting a ballot,” and upheld the consent decree while adding a Dec. 1, 2017, expiration date.

The RNC appealed, saying that its decades-long compliance and good faith should justify ending the consent decree.

The Third Circuit upheld the district court’s decision and modification, saying that just because the RNC had largely complied with the order, the “mere passage of time” does not count as a change of facts that would warrant lifting the order.

The Supreme Court, as is customary, did not offer an explanation for declining to hear the RNC's petition.

An official at the RNC, which is seeking to improve its outreach to minority groups in the wake of a grim showing in November, downplayed the case and the court's action.

"It was a standard legal proceeding where we had been seeking to lift the injunction that’s been in place for decades," said the GOP official, who asked not to be named. "We brought some technical legal issues to the Supreme Court after finding flaws in the lower court’s reasoning but the Court didn’t think they were substantive enough to review."

The lawyer who handled the case for the DNC, Angelo Genova, welcomed the high court's action.

"The Supreme Court, in denying a writ of certiorari in this case, reaffirms the vital necessity of the original consent decree," Genova said in a statement. "The order remains integral to enforcing critical protections  against minority voter suppression throughout our nation, protections that as are important today as they were thirty years ago."

UPDATE (Monday 5:12 P.M.): This post has been updated with comment from Genova.

The president of the Massachusetts Institute of Technology announced Sunday that he has ordered a top-to-bottom review of the university's actions in a computer hacking case that led to the federal prosecution of renowned programmer and web activist Aaron Swartz, who killed himself last week as he awaited a federal trial on 13 felony counts.

"Now is a time for everyone involved to reflect on their actions, and that includes all of us at MIT," MIT President L. Rafael Reif said in an email sent to the university community Sunday afternoon and relayed to POLITICO by an MIT spokesperson.

Reif said he had asked a computer science and electrical engineering professor at the Cambridge, Mass. school, Hal Abelson, "to lead a thorough analysis of MIT's involvement from the time that we first perceived unusual activity on our network in fall 2010 up to the present."

"I have asked that this analysis describe the options MIT had and the decisions MIT made, in order to understand and to learn from the actions MIT took. I will share the report with the MIT community when I receive it," Reif added.

The federal case stemmed from an alleged attempt by Swartz to download much or all of the JSTOR database, a massive collection of academic papers that is available to students and researchers at many academic institutions but is not freely available on the internet. Swartz allegedly made the effort by placing a laptop in a wiring closet of an MIT building.

Swartz's suicide at the age of 26 has led to an outpouring of sadness as well as anger directed at the Obama Administration, federal prosecutors, and MIT over a prosecution that critics regard as either unjustified or heavy-handed.

In a statement Saturday, Swartz's family and partner asserted that "decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death." A spokeswoman for the U.S. Attorney's Office declined to comment Saturday, citing a desire to respect Swartz's family.

In July 2011, when POLITICO first reported that MIT Police had arrested Swartz on state charges stemming from the alleged database-copying episode, MIT police and academic officials declined to comment about the case.

However, Reif said Sunday that he was distressed by the university's role in the saga. But he stopped short of acknowledging any particular mistake.

"It pains me to think that MIT played any role in a series of events that have ended in tragedy," the university president said.

Swartz was not a student at the time of his arrest. He was a fellow at an ethics center at nearby Harvard University. The state case against him was eventually dropped.

The full MIT statement appears after the jump.

Aaron Swartz, a well-known computer programmer and political activist facing a federal criminal prosecution for attempting to download the entirety of a massive academic database, killed himself in his Brooklyn apartment earlier this week, the medical examiner's office told the Associated Press Saturday.

He was 26.

Swartz was due to go on trial April 1 on a federal indictment filed in 2011 charging him with attempting to download the JSTOR database of academic articles by placing a computer in a closet in a building at the Masschusetts Institute of Technology. Several years ago, he attempted a similar caper by making an effort to download a vast number of federal court filings and rulings using a free-access computer set up by court officials.

In a statement Saturday, Swartz's family and partner mourned his loss. They also said the federal prosecution and MIT "contributed" to his death.

"Aaron’s death is not simply a personal tragedy. It is the product of a criminal justice system rife with intimidation and prosecutorial overreach," the statement said. "Decisions made by officials in the Massachusetts U.S. Attorney’s office and at MIT contributed to his death. The US Attorney’s office pursued an exceptionally harsh array of charges, carrying potentially over 30 years in prison, to punish an alleged crime that had no victims. Meanwhile, unlike JSTOR, MIT refused to stand up for Aaron and its own community’s most cherished principles."

A spokeswoman for the U.S. Attorney's Office in Boston, Christina Dilorio-Sterling, said Saturday night that officials there won't comment on the case at this time. "We want to respect the privacy of the family," she said.

MIT did not immediately respond to a message Saturday night seeking its response.

Swartz, who was involved early in the development of the social news website Reddit and in the creation of the web feed service known as RSS, was also active in liberal Democratic politics and internet freedom efforts. He was a founder of the Progressive Change Campaign Committee and of Demand Progress, a group which successfully fought proposed federal legislation affecting the internet.

Swartz appeared to have a tumultuous relationship with his attorneys handling the JSTOR case. He was defended at the outset by a Boston attorney, Andrew Good. After about a year, another Boston attorney Martin Weinberg stepped in. Last fall, with trial approaching, the San Francisco-based boutique law firm Keker & Van Nest took over the case.

UPDATE (Saturday, 9:19 P.M.): This post has been updated with the response from the U.S. Attorney's Office in Boston.

In a high-tech dispute over snail mail, GameFly scored a victory Friday in its complaint over the U.S. Postal Service’s handling of Netflix mailings, when a federal appeals court ruled that the post office discriminated against the popular Internet-based video game-rental service.

GameFly had filed a complaint with the commission regarding the Postal Service’s treatment of Netflix. Both companies specialize in mailing disks, which are the right size and weight to qualify for one ounce mail. However, that type of mail is sorted by automatic machines that put the disks at risk of damage.

The Postal Service spares Netflix this risk by sorting its mailings by hand in specialized containers, at no extra cost to the company, but rejected GameFly’s request for the same treatment. The decision costs GameFly millions, the court says, because the company is forced to mail its disks in flat mailers at a higher weight, upping the cost per mailing.

The Postal Regulatory Commission agreed with GameFly that the Postal Service’s actions were discriminatory. However, Friday's unanimous decision from a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit said that the commission’s solution (to lower the cost of the flat mailings for GameFly) “left discrimination in place without reasonable explanation,” as it did not address why Netflix is sorted in a different manner.

The ruling, written by Chief Judge David Sentelle and posted here, ordered the commission to reconsider the case and “either remedy all discrimination or explain why any residual discrimination is due or reasonable under” postal law. While GameFly asked the court to order that the game firm's suggested remedies be put in place, the judges left it up to the commission, saying there may be alternatives that survive appellate review.

The Postal Regulatory Commission declined to comment on the ruling.

GameFly’s CEO, Dave Hodess, praised the ruling.

“We are very pleased by the decision. GameFly has been trying for more than five years to get the Postal Service to take seriously its obligation not to discriminate unlawfully among its customers. We trust that the Commission will take the court’s decision to heart and require the Postal Service to be compliant with the law by offering the same price and quality of service to all DVD rental companies,” Hodess said in a statement.

UPDATED: (Saturday, 12:29 a.m.) This post has been updated to add comment from GameFly.

Almost two years ago, State Department spokesman P.J. Crowley branded as "ridiculous, counterproductive and stupid" the military's treatment of accused WikiLeaks source Army Pfc. Bradley Manning at a Marine Corps brig in Virginia.

At a press conference on March 11, 2011, Crowley's ultimate boss—President Barack Obama—said he'd been assured that Manning's jail conditions were "appropriate and are meeting our basic standards."

Within hours, Crowley was out of a job.

On Tuesday, a military judge effectively resolved that longstanding public disagreement in Crowley's favor. Army Col. Denise Lind found the conditions placed on Manning at the brig—near-constant monitoring, restrictions on his clothing, limits on items in his cell and his recreation—violated the Uniform Code of Military Justice by going beyond what was needed to ensure the Army intelligence analyst's safety. Lind, called the conditions "excessive" and found they were "more rigorous than necessary" to be confident Manning would make it to his court martial.

During an appearance Wednesday on the Huffington Post's web TV channel, Crowley said Lind's ruling essentially proved him right. However, the former State Department official, Clinton National Security Council spokesman and retired Air Force colonel refrained from criticizing Obama or his staff.

"My point when I was at the State Department was [Manning's] treatment, I thought, was excessive. And it was creating understandable concern both within our country and overseas," said Crowley, who's now a professor at George Washington University. "The last thing that we as the United States needed at the time were more questions about our detention policies, even if it involved one of our own soldiers. Obviously, the court has kind of affirmed my instincts and judged that the treatment was excessive, as well."

While Crowley's resignation under pressure made him a hero at the time to many Manning supporters, he made clear Wednesday he's still no fan of Manning and believes what he allegedly did was damaging and dangerous.

"I at the same time, and thought at the time at the State Department, that Bradley Manning stands accused of very serious charges under U.S. law: the passing of 250,000 government documents, many of them secret, to WikiLeaks. The accusation that he’s being judged on has done damage to the United States’ national interest…It also put real lives in jeopardy," Crowley told HuffPo. "So, I think the case is meritorious in my judgment, but, obviously, as an American citizen he’s innocent until proven otherwise and I thought that his treatment in the brig at Quantico was inconsistent with pretrial confinement that we generally use throughout our judicial system."

The military insisted at the time that the treatment of Manning was justified because of well-founded concerns he might commit suicide. But Lind found that the limits persisted long after military psychiatrists cleared the Army intelligence officer to be placed in the general population with other detained servicemembers.

Because of the harsh conditions, the judge agreed to credit Manning 112 days off any prison sentence he receives if convicted on the various charges he faces relating to the alleged leaks. That sentence could be as long as life in prison.

Manning's court martial is now expected to get underway in June.