Congress is very close to passing a bill on military commissions to try terrorist suspects, which amounts to Congress's response to Hamdan v. Rumfeld. The bill text is here.

  In the comment thread in a recent post, a number of commenters took the VC's blogggers to task for not blogging about the bill and its predecessors. Here's a taste:

(1) Scrolling down through the Volokh Conspiracy over the past few days, I'm wondering if you guys have ANYTHING TO SAY ABOUT THE ABOLITION OF HABEAS CORPUS for anyone (foreign or US) whom the executive branch believes has "supported hositilities against the United States." . . . . Don't you lawyers have anything at all to say about this? Any opinions at all?

(2) Yeah. EV can post all he wants about "just because we ignore the subject doesn't mean we don't care," but it wears a little thin sometimes.

(3) I agree with Frances, Anderson, and Commenterlein. The lack of comment is amazing. Yes, bloggers can post on whatever they like, but for a blog concerned with constitutional issues and individual liberties to remain essentially silent on these topics is quite remarkable.

(4) I have to say that I was somewhat surprised, too, that there haven't been more blogging at VC about the "detainee" issues.

(5) Thank you to Frances for making explicit what has bugged me a lot. One view is that VC contributors are faced with an unpleasant bit of cognitive dissonance: how to react when self-styled conservatives fall over themselves to pass a statute authorizing torture, indefinite detention and the aggrandizement of the executive. . . . . But I think that if conservative intellectuals are to have credibility, indeed if conservative ideas are to have any credibility outside of true believers, intellectuals like VC needs to address these bills.

(6) Bizarrely, those who see Kelo as an outrage, who consider any environmental rule an unwarranted intrusion on liberty, any hint of gun regulation as a grave threat to freedom, cannot be bothered to worry about the consequences of this bill.

  I can't speak for anyone else, but here are a few thoughts of my own in response.

  First, I would really like to blog some expert commentary about these bills. But there's a problem: I don't know much about them. I have read what others have said about them, and occasionally link to commentary that seems particularly good (to the extent I can tell). I recently looked over the latest text to get a feel for what the bill is trying to do. But I haven't followed this area closely enough, as I've been busy with other stuff like my book that's about to come out, a few articles I'm writing, some pro bono cases, teaching classes, advising students, moving to Chicago for the semester, blogging about other things, and, well, life. I don't feel comfortable pretending that I know more than I do about the detainee legislation, so I haven't blogged much about it.

  Plus, from a normative perspective, I always get hung up in this area on deciding what baseline to use. Opponents of the bill tend to measure the rights afforded under it in comparison to the rights of U.S. citizens facing criminal charges, but it's not clear to me that's right — and not clear to me how to choose between that baseline and others. Then there are all the empirical questions about what techniques actually work, predictive questions like how the trials will work in practice, what the effect to different language in the bill might actually be, what the Supremes might do, what the alternatives are, etc. Some people know the answers to all of these questions, or at least think they do, but I feel a lot less confident. Of course, whether my uncertainty reflects an appropriate awareness of my limitations, excessive caution, or moral depravity is a judgment left to the reader.