A big question — and at least 4, maybe even 5 Supreme Court Justices get it after their Hamdan decision– is whether, regardless of the 2006 MCA Congressional rubber stamp, “military commissions” even can try persons for matters such as “conspiracy” or “providing material support to terrorists” which are not, and have never been recognized as, violations of the laws of war. Military judges seem to wonder about that too (recall last year’s flap finding no such thing as “enemy combatants” and no determination of “unlawful enemy combatants”, only to be overruled by an improvised appeals panel.)

And of course, the new premise still seems to be that in conflicts against the United States, even after the USA attacks and invades another country, it cannot merely hold combatants against it as combatants, but insists that traditional resistance and combat tactics (throwing grenades at uniformed troops, for example) are now “war crimes”.

We won’t even talk about the child soldier issue, or the question of why trying someone as allegedly important as KSM must be done in the jury-rigged (as it were!) military commissions, rather than in the transparent federal courts of the United States, which have certainly had no problem convicting terrorism suspects in the past, and even occasionally imposing death sentences.

But somebody is going to talk about this; quite probably the Supreme Court in Boumediene, to hazard one guess…