The Guantanamo detainees and the Military Commissions Act.(Law)

IN "THE IMPLICATIONS of Hamdan's Case" (Quadrant, March) we considered the decision of the US Supreme Court in Hamdan's case, which struck down the military commissions set up to try Guantanamo detainees.

Following that decision, Congress had the opportunity to draft fresh legislation, based on the Supreme Court's opinion of the domestic and international law issues, but ultimately, it was not possible to reach bi-partisan agreement on the final text of the Military Commissions Act 2006 (MCA). At one stage, a mark-up had been given to a bill that enjoyed bi-partisan support, but this was later altered to meet the wishes of the Bush administration, and eventually passed with strong Democrat dissent.

There were no open committee hearings, with the whole thing crafted behind closed doors. This could have been deliberate, as the majority of the US Supreme Court in Hamdan had relied on floor statements in Congress and the drafting history of the Detainee Treatment Act, in reaching their judgment that the MCA did not intend to remove, from the Court's jurisdiction, cases then pending before it.

In the debates on the MCA, the Democrats were able to record their strong opposition in the Congressional Record, which will be available to the US Supreme Court if there are any appeals after trials before the military commissions.

The committees that considered the various bills received written submissions from eminent lawyers, including the Judge Advocates General for the Armed Services and a number of distinguished retired military lawyers, many of whom recommended that normal court-martial procedures be used. One assumes that they were questioned by the committees in closed session before that approach was rejected.

The first bill proposed, the so-called "Bush draft", displayed thinly veiled contempt for the Supreme Court and was full of tendentious assertions (some directly contradicting what a majority of the Court had decided in Hamdan). Apart from noting that the Court had stated that Congress could draft legislation to establish military commissions, this draft ignored or contradicted almost everything else the Supreme Court had said. Much of this was amended, or disappeared during the bill's progress through Congress.

THE MCA SET UP new military commissions, based on but not identical with the provisions for courts-martial under the Uniform Code of Military Justice (UCMJ). The practice and procedure of the commissions is governed by a Manual for Military Commissions that runs to 238 pages.