It's been a very busy week for war crimes and war criminals.  In some good news for the cause of justice and the upholding of international law, Bosnian Serb mass murder Radavan Karadzic was finally captured in Belgrade, just days after the International Criminal Court charged Sudanese President Omar al-Bashir with crimes against humanity in Darfur.  But for Americans, those positive developments were offset by news that the Bush administration's own war crimes trials - and potential pre-emptive pardons - put the United States in the same discussion with Sudan and the Republica Serbska.

By Ben Wizner, staff attorney with the ACLU National Security Project. Ben arrived in Guantánamo Bay Sunday evening to attend this week's military commission hearings involving Salim Ahmed Hamdan.

Tuesday's military commission hearing began with additional testimony and evidence regarding the defense's contention that the commission system is marred by improper political influence. The defense, citing former chief prosecutor Morris Davis's testimony, maintained that Salim Ahmed Hamdan could "not be prosecuted in a system where politicians hold the final say on who will be charged and what the outcome will be." The prosecution — while insisting that it was "not the government's position that Colonel Davis is an untruthful person" (call that the watch-your-back double negative) — suggested that Davis was pursuing a personal agenda and that the commission system was fair and independent.

By Ben Wizner, staff attorney with the ACLU National Security Project. Ben arrived in Guantánamo Bay Sunday evening to attend this week's military commission hearings involving Salim Ahmed Hamdan, which are slated to conclude today.

It’s become almost cliché to observe that each time a detainee is brought before a military commission at Guantánamo, it’s the commission system itself that is truly on trial. On Monday, however, that talking point achieved a more concrete reality with the extraordinary spectacle of the commissions’ former chief prosecutor appearing as star witness — for the defense.

In another case ruled on later today, a different judge dismissed the case against Hamdan, accused of being Osama bin Laden's driver, for the same reason as Khadr's case was dismissed.  NPR is dicussing both cases right now.

UPDATE 1:  This comprehensive Hamdan site hasn't posted the lastest news yet, but there is a ton of information on Hamdan first legal victory last year.  Hamdan's two victories and Khadr's victory today have not resulted in their release from prison.

UPDATE 2: Whadayaknow---MSNBC has just posted the story.

One of the key issues that triggered my current focus on political activism, my creating of this blog and my previous post "The Real Tragedy of 21st Century America", is that of habeas corpus, and the Military Commissions Act.

Given the introduction of S.B.576, the "Restoring the Constitution Act of 2007", it seems like this might be a good time for a posting that will try to explain what this is all about and why it troubles me. This diary borrows from two of my Vox Libertas blogs on the topic.

But, don't take my word for it. One of the themes of Vox Libertas is the importance of individual involvement. Read what I think, but make sure to get involved, formulate your own views and then work to insure that they get acted upon.

Several DKos readers have posted diaries about AG Gonzales' comment that the Constitution does not give federal courts the right to hear habeas corpus petitions.  While Gonzales' assertion astounded many of us, others cited authority to support Gonzales' position.  I found those authorities unconvincing, but realized it would take more than a few lines to explain them away.  The comments of many readers also revealed that a summary of the status on habeas, both before and after the passage of the Military Commissions Act of 2006 (the MCA), might be helpful.

This diary shows where the Supreme Court ruled that the Constitution guarantees the right to file a habeas corpus petition, but has not yet defined the full scope of this right.  Absent invasion or rebellion,  then, Congress cannot deny US citizens and resident aliens the right to file a habeas petition in federal court if the federal government has wrongfully detained them.  

The diary next explains how one District Court interpreted the section of the MCA that tries to eliminate the habeas rights of alien "enemy combatants," and ultimately decided it had no jurisidction to hear the combatant's habeas petition.  Last, it summarizes why I think the District Court erred in this regard.

An editorial in today's Washington Post calls for the restoration of habeas corpus for Guantanamo Bay detainees, as well as any other detainee. I really hope Congress takes the step when they take over in January to restore this right.

LAST WEEK a federal court in Washington threw out the lawsuit of Salim Ahmed Hamdan, the detainee at Guantanamo Bay, Cuba, whose successful challenge to the Bush administration's proposed military trials for accused terrorists led to a landmark Supreme Court decision earlier this year. The dismissal of the case is an ironic consequence of Mr. Hamdan's victory before the high court. The justices' decision forced Congress finally to take action to create a legal structure for the war on terrorism.

Unfortunately, it looks like he was right.

Guantánamo defense lawyer forced out of Navy

more:

I said it would happen. I said the "administration" would deny that Hamdan prohibited the NSA spying program. I said the "administration" would deny even that Hamdan prohibited torture. I even said that they would eventually deny that Hamdan, by itself, means anything more than that they were missing some necessary paperwork -- a missing permission slip, perhaps.

And surely, some of the bloggers we all know and love will point out that that "paperwork" is, in fact, explicit Congressional authorization. And that that's no mere trifle.

No, it's not. And here it comes.

In What the AUMF Doesn't Authorize I point out that the Authorization for Use of Military Force (AUMF) does not authorize the President to break any laws or violate the Constitution.  The article highlights 3 court cases decided by federal judges (2 Supreme Court) all of which clearly restrict Bush's "wartime" powers.  3 major violations of our Constitution have been halted by court action.  Today Bush announced that the CIA's program of rendering detainees to secret prisons to be tortured for information will end and all suspects will be transferred to Guatanamo Bay.

[BBC News]  Mr Bush said he was making a limited disclosure of the CIA programme because interrogation of the men it held was now complete and because a US Supreme Court decision had stopped the use of military commissions for trials.

I'd appreciate feedback and thoughts from Kossacks. UPDATE: Just searched using different terms and [http://www.dailykos.com/story/2006/9/6/155654/0042 Red Wind] has diaried on this as well - please go read.

George W. Bush may not be especially good at governance but he knows how to stagecraft a propaganda commercial disguised as a policy speech, and cable TV, desperate for filler, is only too happy to oblige. The elements are generally the same: repeat what you've just said yesterday but in a crafted setting with an invited and screened audience to make it look like you're popular and they're adoring and attentive. News reporters have just about given up talking about "the bubble" because it's old news, but it's integral to the propaganda to have Bush greeting by a warm and receptive audience.

Yesterday's speech, however, was unusual in this it actually presented news. Bush has admitted in public that the US has engaged in extraordinary rendition of Al Queda suspects and has since moved them to Gitmo. He has now shifted the argument to a confrontation with key Republicans in Congress (John McCain and Lindsay Graham) about what to do about them:

   With a series of forceful speeches on terrorism and a dramatic announcement that he has sent top-tier terrorism suspects to the Guantanamo Bay prison, President Bush this week has demonstrated anew the power of even a weakened commander in chief to set the terms of national debate...

    By challenging Congress to immediately give the administration authority to try notorious al-Qaeda figures such as Khalid Sheik Mohammed by military commissions, he shifted the argument with Democratic critics of national security policies and competence. As Bush framed the choice, anyone against his proposal would be denying him necessary tools to protect American security.

His success in catching much of Washington by surprise showed that a president who polls show has his political back to the wall still has formidable tools: the ability to make well-timed course corrections on policy, dominate the news and shape the capital's agenda in the weeks before Election Day.

Since the Supreme Court said the Administration wrongfully denied these Geneva Conventions protections to those detained in Guantanamo Bay and similar detention facilities, Administration officials could face prosecution under the War Crimes Act.

In a previous diary, The United States is NOT at War!, I tried to point out the constitutional problems with an AUMF - Authorization for Use of Military Force.  I would like to go into further detail here in light of recent Supreme Court cases (and today's District Court decision) that directly impact the legal arguments that the administration continues to put forth regarding the President's inherent "war powers" as Commander in Chief.

I will focus here on instances of "specific statutory authorization".  We have two such instances to look at.  The first followed the tragedy of September 11th, 2001, which authorized the President to deal with those that initiated the attacks.  The second is the invasion and subsequent occupation of Iraq, which was also a statutory authorization by the Congress under the War Powers Act.  Three court cases are now available as precedent for what an AUMF does and does not authorize.

This is more in Bush and Rove's playbook to step around the ruling of Hamdan, rendering the Supreme Court irrelevant (when Scalia's opinion isn't in the majority).

WASHINGTON - U.S. citizens suspected of terror ties might be detained indefinitely and barred from access to civilian courts under legislation proposed by the Bush administration, say legal experts reviewing an early version of the bill.

A 32-page draft measure is intended to authorize the Pentagon's tribunal system, established shortly after the 2001 terrorist attacks to detain and prosecute detainees captured in the war on terror. The tribunal system was thrown out last month by the Supreme Court.

Welcome to your new police state.

Good afternoon, mushy-headed defeatists!

(Don't mind the good-natured jab! That's just what Glenn Greenwald thinks you are if you think the good folks in the Bush "administration" aren't quaking in their boots in the wake of the Hamdan decision.)

Just thought I'd bring you up-to-date on the short life of the Hamdan decision. You'll recall that two weeks ago we learned that the "administration" denied that Hamdan appliedto the NSA's spying programs, and a bit later, that they denied that Hamdan applied to torture, too.

Today, we learn that Hamdan doesn't apply even to the central holding of Hamdan.

[hat tip to Lambert of CorrenteWire--Crossposted from MyLeftWing]

So, this is it.  We've come down to it at last.  The end of democracy in America.

It started with the Legislative Branch, of course.  The branch that, according to that formerly revered document, the United States Constitution, has:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Congress' abdication of its responsibility for oversight--in matters of war and peace, primarily, but in other matters as well--is well-documented.

But now, the judicial branch has caved as well: FOR THE FIRST TIME EVER, A SUPREME COURT OPINION HAS RECOGNIZED THE JUDICIAL VALIDITY OF A PRESIDENTIAL SIGNING STATEMENT.

It's time to pull out the Pocket Constitution again--and you know what that means.  Fun times below.