By the way, since a debate on military commissions broke out, here are some other things about them that I learned recently.

The military regards the people at Guantanamo, and elsewhere under military confinement, as enemy combatants. Enemy combatants (lawful or unlawful) do not need to be charged with crimes, they may be held for the duration of the conflict. The contention is that a decision, rightly or wrongly, was made by the U.S. government that the response to terrorists was a military response, and that therefore this is an armed conflict. The alternative, a criminal justice response, would have required charging people with crimes, but that option was not taken. The military is probably right that if this is an armed conflict, and the prisoners are being held as enemy combatants, that they do not need to be charged unless they have committed war crimes.

IHL requires that the prisoners be able to come before a judiciary proceeding to challenge their combatant status. The military implements this with the Combatant Status Review Tribunals, not the Military Commissions. The Military Commissions Act of 2006 doesn't say anything about this process, it only says that it applies to non-citizens who have been reviewed. The process was set up by the Bush Defense department before the Military Commissions Act.

The Military Commissions are for people who have been charged with war crimes, and amount to a court to try those crimes. So the evidence being admitted, and the procedures and everything else we've heard about the MCA applies to people that the government has decided to charge with war crimes, as listed in the MCA, not to all detainees. The majority of detainees don't get their day in Military Comission anymore than they get their day in court.

So according to the military and DoD, it is not an accident that few of the Guantanamo detainees have been charged with anything. Its the way armed parties are treated during a war. They aren't responsible for the decision to treat this as a war, regardless of whether they agree with it or not.

None of this has anything to do with Padilla anymore, since he isn't an enemy combatant detainee anymore, but since I just recently heard a member of the military involved in all this explain it this way, I thought I'd pass it on.

This is a grey area in the law; the denial of habeas may be found to have such an impact on the outcomes (for example, by preventing a trial at jury with the normal criminal rules of evidence) so that the ex post facto ban may pertain.

If I read you right, you are saying that the "Effective Date" provision of the MCA is possibly a violation of the ex post facto ban. What about the habeas part (part 7a)? Like I said, I'm not a lawyer, but I read through ex parte Milligan and it seemed to me they were saying that unless the country is in such an uproar that the court can't open, you can't touch habeas corpus, and even when you can, you can only suspend someone's rights, not cancel them. So how can they do it here?