Hamdan not applicable to torture, spying, or... Hamdan.

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.

Legislation drafted by the Bush administration setting out new rules on bringing terror detainees to trial would allow hearsay evidence to be introduced unless it was deemed "unreliable" and would permit defendants to be excluded from their own trials if necessary to protect national security, according to a copy of the proposal.

[...]

The 32-page bill preserves the idea of using military commissions to prosecute terror suspects and makes modest changes in their procedural rules, including several expanded protections for defendants, many of them drawn from the military's legal code. But the proposal also sets up a possible confrontation with lawmakers who have called for modeling the trials on the military's rules for courts-martial, which would allow defendants more rights.

Thanks to the good folks at the Times for the framing, by the way. Now we can look forward to a "debate" in Congress about whether or not "terrorists" deserve "more rights," rather than whether or not the "administration" is "bound by law."

Will it matter that...

A senior Congressional aide said Senator John McCain,

Republican of Arizona, by contrast, is believed to be more adamant that using the existing commissions with modest changes will not suffice, largely because of the danger that American troops could face similar treatment if captured abroad.

...when it comes time for Republicans to pretend that only Democrats insist on "more rights?"

Of course not.

Look, here's the crux of it. Jack Balkin correctly warned two weeks ago that:

What the press and the public must understand is that this Administration does not play by the rules. It does not take a hint. Instead it will continue to obfuscate and prevaricate, as it has so often in the past on issues ranging from detention to prisoner mistreatment. This Administration will not conform its actions to the Rule of Law unless it finds doing so politically infeasible. As a result, the Congress, the courts, the press and the public will have to

object-- repeatedly and strenuously-- if they want the Executive to abide by its constitutional obligation to take care that the laws be faithfully executed.

Today, you see how true that really is:

One of the most difficult issues the administration faces is whether a provision of the Geneva Conventions, known as Common Article Three, applies to detainees; the Supreme Court ruled that it did. [The administration's bill] says explicitly that the Geneva Conventions "are not a source of judicially enforceable individual rights," meaning that in the future,

terror suspects like Salim Ahmed Hamdan, a Yemeni held at Guantánamo whose case resulted in the Supreme Court ruling, cannot file lawsuits saying their Geneva Convention rights were violated.

Questions? Is that clear enough for you?

This "administration" has no intention whatsoever of obeying the law. Why not? I told you back in February, in On the Necessity of Impeachment -- Part II:

[T]he reality of hardball in the judicial system is that rights are all theoretical. You don't really have them until you can prove it in court. And by the same token, neither are there any prohibitions you have to obey, until the prosecution can prove you have to. And as an added bonus, if you never get caught, you never have to worry about either one.

That reality is absolutely critical to understanding what's going on here.

"But wait," you may be saying to yourself. "That's not really true. I mean, murder is murder, and if you're caught and they can prove you did it, you're cooked, right?" Well, maybe. For just a simple illustration, what if they can prove you did it, but you can prove self-defense?

"Well, then, it's not murder," you say.

Precisely so. But we decide whether or not it was a murder based on what? Your story about why you did what you did, and nothing more.

So, is warrantless surveillance illegal or not? Well, not if you believe that the president has "inherent powers as commander-in-chief." That would answer the entire question.

"But there are no unwritten 'inherent powers,' or at least none that would simply justify warrantless surveillance on the president's say-so," you may object.

"Says you," answers Alberto Gonzales.

And you think he's nuts for saying so. But the problem is that you're still working under the old (albeit commonly understood) constitutional order, whereas Gonzales is proposing a new one. One under which there are such "inherent powers."

And that's when it hits you: If five Supreme Court Justices side with Gonzales, everything you knew (or thought you knew) about the Constitution is wrong. By which I mean, it now is wrong. It wasn't wrong yesterday, but now it is.

The "administration" has no intention of obeying the law because nobody has proven to them that they can make them do it. And until that's proven, they'll just say we're all just pre-wrong:

"This draft shows that the executive branch doesn't think the Supreme Court got the questions on the Geneva Conventions right in Hamdan," said John C. Yoo, a law professor at the University of California, Berkley, who as a Justice Department lawyer helped draft the president's original order establishing the military commissions.

They are not kidding. Nor do you have to have "embraced a cartoon super-villain version of the administration which is just not real" to see it.