Is my reporting vague? That was my understanding of ex post facto as
well. In one of my other posts on GTMO et al, I go on about ex post facto.
Yes, it has been customary to not recognize the validity of ex post facto law, but that's what's on the books now so…

I was wondering along a tangent how strong the UCMJ allegations of conspiracy being a war crime would hold up. I think in Hamdan and then again in Rasul, the court did not take too warmly to the allegation that conspiracy was in itself a violation of the laws of war. It must have been in Hamdan that the court, maybe it was Ginsberg who made the analogy, that if conspiracy and material support were a violation of the laws of war, you could haul in some little old lady who donated money to an NGO that was a front organization for Hezb’Allah or something.

In any event, the moral of the story is it seems that if the fed decides something is a law, it stands untill it is challenged. The Court said the pre-Hamdan system was illegal and Congress must enact a military commission, so that's what they did. The Court has not yet been asked if the new commission is valid. The military commisions feels comfortable with ex post facto law and labelling conspiracy and material support as war crimes, so it must be the law. Will it be challenged? It appears so. Natinoal Security Advisors blog is writing on this very issue here

http://natseclaw.typepad.com/natseclaw/2007/05/bismullah_v_gat.html