A Thought On Law of War Charges

I was reading the Charge Sheet in the case against the alleged Sep. 11th plotters. Two things made an impression from a Mil Jus perspective, first, the charge sheet will re-ignite the debate between Justice Stevens and Justice Thomas in Hamdan over when a war can begin for law of war violations. Of the 169 acts alleged, only a dozen or less happened in a "theater of war" . . . but I digress, because this site is not devoted to military commissions, it is devoted to military justice.

What I am really wondering about, and was prompted to think about by the law of war charges in the September 11th cases, how can the military charge a law of war offense these days without violating basic considerations of notice and due process? Three factors seem to make that impossible, (a) everyone accepts the law of war is not concrete (see Army Operational Law Handbook 2007 [6MB file] at p. 44 re: which human rights are part of the law of war), (b) lawyers within the U.S. government can't even agree on what the law of war is (see conflict between DoD, DoJ, and DoS over the Yoo torture memo here), and (c) lawyers within DoD can't even agree on the application of certain portions of the law of war (for example the dispute over application of the UCMJ and Geneva Conventions in the GWOT, see e.g. here). How can a uniformed (or uninformed) defendant in a court-martial be expected to know what "commit an offense under the law of war" means in an Art. 81 charge? Should Congress excise these charges from the UCMJ?

I take dibs on any copyright for an article on this topic, though it is not a great one.