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When the Supreme Court repudiated the legality of the Bush administration’s military commissions, it made clear that Congress could fix the problem. But the legislative solution the Senate Armed Services Committee is widely expected to produce next month may not please the administration any more than the Court’s dramatic 5-3 decision in Hamdan v. Rumsfeld, announced June 29. That decision excoriated the administration for creating a parallel judicial system � a military commission for detainees at Guant�namo Bay, Cuba � that expressly lacked many of the standard safeguards defendants have in both civilian and military courts. “Exigency lent the commission its legitimacy,” Justice John Paul Stevens wrote for the majority, “but did not further justify the wholesale jettisoning of procedural protections.” Indeed, among the commissions’ biggest critics were military lawyers themselves, who argued that if the United States relaxed its standards for its military commissions, other countries where U.S. soldiers could be captured and tried might be inclined to do the same. The members of the Judge Advocate General’s Corps, including the senior JAGs in each service branch, were explicitly excluded from the original commission planning. But now their views are being taken seriously, especially on Capitol Hill. And they are intent on reintroducing many of these “procedural protections” the original commission lacked, mostly by adopting almost verbatim the military’s own 55-year-old judicial system, the Uniform Code of Military Justice. They have at least one crucial ally: Sen. Lindsey Graham (R-S.C.), a member of the Armed Services Committee who spent six years as an active-duty Air Force lawyer and is now a military judge in the Air Force reserves. Despite the committee’s size � there are 24 members � there are really only four key players on Armed Services, at least as far as the drafting of the Hamdan legislation goes. Graham, Chairman John Warner (R-Va.), former prisoner of war Sen. John McCain (R-Ariz.), and its ranking member, Sen. Carl Levin (D-Mich.). “If they lose Graham and they lose McCain, they can’t get anything through,” says Duke University School of Law professor Scott Silliman, a former high-ranking Air Force JAG. Warner, Graham, McCain, and Levin have all shown a strong inclination to listen to the JAGs. In addition, the courtly Warner, who turns 80 next year, rarely likes to produce any legislation without the support of Levin, with whom he has served in the Senate since both were elected in 1978. “Warner won’t want to steamroll over Levin. They pride themselves on working on things in a bipartisan, old-school manner,” notes one Democratic Senate staffer who is closely following the issue. “Warner’s a pretty independent-minded guy, and he takes his job seriously, and he takes the military lawyers seriously.” Besides, rarely does the Court make it more clear that Congress has the last word on a subject. “. . . [A]s presently structured, Hamdan’s military commission exceeds the bounds Congress has placed on the president’s authority,” Justice Anthony Kennedy wrote in his concurring opinion. “Because Congress has prescribed these limits, Congress can change them.” ‘A bill’ floats on the hill Given the White House’s aggressive approach to public relations, it’s rarely clear whether a proposal is a substantive effort or merely an attempt to test the political winds. The administration’s “deliberative draft” that has been floating about town this month is clearly a long way from the measure that Congress will end up passing. (The draft is obliquely titled “A Bill” and, ironically, given its wide circulation, is stamped “Close Hold.” It was first published on the Web site balkin.blogspot.com in late July.) Already the White House has distanced itself from some of the deliberative draft’s most controversial points, including an effort to include U.S. citizens as potential “enemy combatants,” the category of person the military commissions are designed to try. “The �deliberative draft’ departs very widely from the UCMJ. It repeats many of the mistakes of the first commission and, in some instances, is worse than the old military commission,” notes Dwight Sullivan, the Marine Corps colonel who last summer was named the military commissions’ chief defense counsel. In one sense, argues the Senate staffer, it’s a moot point whether a Hamdan bill uses the UCMJ or the original military commission order as its base, as the same half-dozen sticking points will remain. These include the procedures for using classified information and coerced testimony and hearsay evidence and the type of appellate court that will review the commissions’ adjudications. Will it be a commission-led appeals body, or will commission appeals be heard by the military’s U.S. Court of Appeals for the Armed Forces? And then there were two Sullivan, who believes the UCMJ already has every procedural safeguard needed for a commission trial, thinks the starting point does matter. “If you use the old commission and build up, or the UCMJ and work down, you’re probably not going to meet in the middle; you’re probably going to end up closer to where you start.” It’s not clear how far along the administration � where the lead is being taken by the Justice Department’s Office of Legal Counsel � has moved since the deliberative draft. But the White House and Senate Republicans don’t appear to be working in tandem, which means it is very likely that when the Senate reconvenes on Sept. 5 there will be two versions of a Hamdan bill ready to go. Of course, there always remains the remote possibility that Senate Majority Leader Bill Frist (R-Tenn.) could take the White House bill and send it directly to the floor, a so-called Senate Rule 14 maneuver that would effectively shut out Warner’s committee version. Asked whether that was a possibility, a Frist leadership aide, in an e-mail message, would only say that Frist “looked forward” to passing Hamdan legislation this fall and would “discuss how best to proceed with the White House and his Republican and Democratic colleagues.” Warner’s proposed legislation is expected to be largely UCMJ-based; the White House may use its original military commission orders as its starting point, although it concedes that may change. “What’s important is where we end up at the end,” says presidential spokeswoman Dana Perino. “It could end up being something of a hybrid, but that’s still under discussion. It’s not something we want to negotiate in the press.” T.R. Goldman can be contacted at [email protected]

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