The Question

Ask your Members of Congress: If the Republicans really believed the Military Commission Bill was appropriate, why did they include a provision for war crimes defenses in Section 8?

The simple answer is the Republicans don't believe the bill, when signed into law, will amount to a real legal defense. They're not enforcing the law or protecting the Constitution. They're putting themselves first.

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When the Supreme Court ruled on Hamdan, it wasn't any federal court, but the highest court. The District Court of Appeals, the first court after the military commissions, will have Hamdan and Geneva when they conduct their review.

How the Supreme Court is or is not made up is meaningless. Hamdan is the law: The Geneva conventions apply.

Unlike the first round where Hamdan required a fresh look, now each federal district court will have Hamdan as precedent to strike down the Military Commissions Bill.

Hamdan isn't a simple opinion with one court. Contrary to the popular mythology, the legal battle will not be something that requires another five years of litigation. Indeed, it may because of delays require five years, but that is another matter.

As Rasul affirmed the right of the detainees to challenge their detention, Hamdan is precedent for the court to review the legal issues, but at the earliest stages. Congress has no power to deny the courts of judicial review.

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The courts can't roll over and defer to the President as the DC Court of Appeals did. Rather, Hamdan is the language and precedent to remind the court of what is required: Enforcement of Geneva.

Hamdan when it was initially argued did not have the benefit of hindsight, which we now have.

The District Courts can strike down the Military Commissions procedures. Failure to do so in light of Hamdan would be clearly erroneous. It is a separate matter how the Judicial Officers are or are not reviewed with respect to their judicial cannons, or whether they are subsequently impeached for failing to affirm Hamdan.

Yes, America's Congress has passed an illegal bill. No, the Constitution has not gone away. Yes, the litigation will be costly. No, it is not a waste of money; it is a waste of credibility.