A draft response to Hamdan

UPDATE Thursday p.m., July 6:The National Institute of Military Justice has produced a revised version of the draft legislation discussed in this post. The new draft, adapted to respond to some comments, can be found here. The text of Sen. Specter’s bill (S. 3614), also discussed below, is now available. It can be found here. It is a 19-page document..

This is another report in continuing coverage of the aftermath of the Supreme Court’s ruling in Hamdan v. Rumsfeld on issues surrounding the war crimes “military commissions.”

The National Institute of Military Justice, a research and advocacy group on military law, is circulating a draft legislative proposal in response to the Supreme Court’s July 29 decision striking down the tribunals set up by President Bush to operate at Guantanamo Bay, Cuba. Other drafts are circulating in Congress, and both houses are expected to debate the issue in coming weeks. The NIMJ proposal emerges from an independent group, with expertise in the field; it took part in the Hamdan case as an amicus.

Under the Institute’s draft, the President’s power to set up military commissions would be specifically authorized, the bill would tailor the processses of the commissions closely to existing courts-martial procedures, and it would set up an appeals process from commission decisions — including Supreme Court review. The text of the draft, together with commentary on its provisions, can be found here. In the draft bill, new matter has double-underscoring, old matter being deleted is struck through, and the language with neither is existing law.

A background essay on the procedural characteristics and problems of the military commissions, prior to the Hamdan ruling, can be found here. It appeared in The Army Lawyer in December last year.

The chairman of the Senate Judiciary Committee, Republican Arlen Specter of Pennsylvania, has introduced a bill to deal with Hamdan. It is S. 3614, but its text is not yet available, according to Congress’ legislative search service, Thomas. Senate Majority Leader Bill Frist, Tennessee Republican, has said he will introduced legislation after the current holiday recess.

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