Barry Bonds in Context

As he has done with countless pitchers over the last quarter-century, Barry Bonds made the Justice Department sweat, cower and blink. Faced with entering a court of law with a losing hand, the US Attorney's office in San Francisco has delayed the case of The US v. Barry Bonds indefinitely. Efforts to prove that the home-run king lied in grand jury testimony about his anabolic intake have for now been benched.

The prosecution will now start a lengthy appeal of Judge Susan Ilston's devastating pretrial dismissal of most of their case. It had wanted to submit reams of evidence seized from Bonds's trainer Greg Anderson, without having Anderson testify to its authenticity. Ilston refused to let them. This left the prosecution with nothing but scatological testimony from Bonds's ex-mistress that dwelled more on testicles than test results, so they chose to retreat and regroup.

The Justice Department wins 95 percent of the cases it brings to trial, and make no mistake: this case was about to become part of the other 5 percent. The only thing the Justice Department had in its favor is what it always has, unlimited time and funds, so it's rolling the dice in hopes that a three-judge panel rules against Ilston. It wants the wiretaps, the illegal search and seizures and the acts of intimidation against Anderson's family all to stand legally. This is frightening, but prosecutors will likely find themselves very disappointed. The page appears to be turning on the entire Bush era of outlaw justice, and Barry Bonds will likely benefit.

The case started when Attorney General John Ashcroft, the great champion of the Patriot Act, held a press conference in 2004 to announce that the investigation of the Bay Area Laboratory Co-operative was officially underway. Having the Attorney General convene a grand jury to look into steroid use was extreme overkill, but as commentators remarked at the time, it was a shot across the bow at Bonds. Most sports fans were very comfortable with seeing the despoiler of the national pastime get crushed. Bonds has had notoriously difficult relationships with the press, fans, teammates and management throughout his career. He is also black, which makes him an easier target. But the desire to see Bonds punished came at a terrible collective cost.

The Bonds case has always been about more than the sports media have chosen to dwell on. It's not about the scourge of anabolic steroids, or a surly, arrogant athlete getting his comeuppance. It isn't even about perjury. It's about how the Justice Department under Bush became untethered from the Bill of Rights.

This week, Obama Attorney General Eric Holder has released a series of post-9/11 memos that chill the spine. As the Washington Post reported:

Justice Department appointee John Yoo argued that constitutional provisions ensuring free speech and barring warrantless searches could be disregarded by the president in wartime, allowing troops to storm a building if they suspected terrorists might be inside. In another, the department asserted that detainees could be transferred to countries known to commit human rights abuses so long as US officials did not intentionally seek their torture.

And as Michael Isikoff wrote in Newsweek:

In the aftermath of the 9/11 attacks, the Justice Department secretly gave the green light for the US military to attack apartment buildings and office complexes inside the United States, deploy high-tech surveillance against US citizens and potentially suspend First Amendment freedom-of-the-press rights in order to combat the terror threat, according to a memo released Monday.

Bonds has been the most public victim of this frightening approach to law and justice. But while Americans followed the Bonds saga, and many cheered his professional demise, the real damage to civil liberties was being done. Shamefully underreported throughout the last decade were the stories of hundreds of Arabs and Muslims imprisoned and harassed through the Patriot Act, or the persecution of Sami Al Arian, or the hundreds of Maryland activists, who were spied upon for being environmentalists or anti-death penalty. They were all caught in the same net.

It is a very good thing that Holder is releasing these memos. But it's not enough. Repealing the Patriot Act is the best way to truly turn the page on a shameful era in the history of US law.

Still, the ruling of Judge Ilston and the backstepping of the San Francisco US Attorney's office is a good start. If they want to prove Bonds perjured himself, let's see if they can do it without torching the Bill of Rights in the process.

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