"tend to be very aware of the crucial differences between the procedures established in UCMJ and those under MCA military commission"

The common person surely does not. Likewise, again, the procedures of the MC has changed ... down to new rules in the last month! Deborah Perlstein, e.g., discussed it over at Balkinization and Opinio Juris, noting some positive developments.

Given how the Supreme Court, lower court judges, and new legislation changed things, darn, isn't it useful to summarize what the state of the law is now?

As to legitimate military tribunals being non-applicable, that would be a somewhat different question.

The Congress just passed a defense bill that not only dealt with hate crimes and such, but changed the rules for military commissions. Court rulings have also changed the rules used before.

Hamdan et. al. did not target a title but the protections of the body in question. Hamdi said military commissions could be legitimate. As I said before, the same applies to some critics of the system, including certain "Democrats."

So, it would be helpful if we compare the current rules for commissions with the rules of military court martial. What rights are lacking? I'm sure there are some. What improvements were made? There clearly are some. Were they mere tokens?

Concrete details will help here.

"Next November Republicans can look forward to recapture of the House and a whittling down of Democrats in the Senate by five or six."

I don't quite understand this. Apparently, the Republicans -- who as Glenn notes don't look like a great alternative to the Dems these days -- will get something like +50 votes in the House, but only five senators.

Count me as a wild-eye optimist, but I really doubt this will happen. It won't be on Afghanistan -- the Rs want MORE troops. And, as to the horrible health care bill, why don't he list all the things in it that will help thousands of people who will think differently.

People who spit at the health care bill must be the same whose grandparents spit at social security reforms during FDR's time that didn't cover a lot of people, particularly before being amended in the 1960s.

Not sure how your previous discussion means "Democrats" opposed military commissions no matter what.

You cite Obama's former comments. I didn't say "Obama," I said "Democrats."

Use of the UCMJ underlines that civilian trials alone is not what Obama promoted. To the degree the latest version does not match the UCMJ rules (I'd be interested how), fine. It still wouldn't be a civilian trial.

The NYT spoke of "military justice." Not a civilian trial. It was concerned with "secrecy." Note how I spoke of "protections" which just like the UCMJ can also mean open military trials.

Katyal wanted "military courts-martial." So, you would be fine if Obama had a two-tier option, since this would still I assume allow that or civilian trials. One having less rights than the other.

The fact Leahy wants civilian courts again doesn't mean all "Democrats" do. For instance, did Sen. Webb not support military commissions in 2006? Your own discussion noted "some" Democrats supported it, but they were in the minority so had the excuse that they had little choice. You yourself made clear that is but a dodge: some Dems are conservative no matter what.

Safire spoke of "military kangaroo courts" ... again, the person I cited noted the new version is flawed but are not "kangaroo courts."

"Democrats" and other critics had a range of concerns. Some more than others. This doesn't make those who wanted less right. But, it also doesn't make it right that all "Democrats" who settled are hypocrites for doing so.

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As to prosecutorial discretion, yes. For instance, if the person is borderline, they can either put them on trial or hold them in civil detention on mental grounds. Sex offenders is one example of them doing this now. The SC in fact is now examining just how broadly they can do it. Civil and criminal have different levels of proof.

For noncitizens, they can use the immigration or criminal process in various cases, deportation a different level of proof. For members of the military, in various cases they can use the military or civilian systems, each having different levels of due process. Under WWII precedents, a citizen can be held as a POW or tried for treason. One has a lot more procedural hurdles.

And, under various of these options, the government has a means of deciding whether or not to leave the person what is in practice a limbo. For instance, trials can take over a year. They might plea or let them go, or leave them to rot in jail while this process goes on. Ditto immigration -- the length that process takes is shocking, but it gives the government a lot of discretion to hold people for a long time.

Again, this doesn't make these options correct. But, it's far from a novel thing for the government to have various options that have different levels of due process necessary.