Even as American forces scour the rocky outposts of war-torn Afghanistan for Osama bin Laden, Pentagon lawyers are crafting guidelines for military commissions that could eventually mete out justice to the alleged mastermind of the Sept. 11 attacks and his helpers.
The Pentagon is using a Nov. 13 presidential order as a guide, and looking to historic precedents in crafting new terror commissions. But the presidential order has come under intense criticism from civil libertarians and legal experts who say its guidelines suggest an unconstitutional abuse of power.
Exactly how far the Bush administration will push the boundaries of this power remains in doubt. In the coming weeks, the Pentagon will release regulations lawyers have painstakingly drafted to organize the historic terrorist tribunals. What the Bush administration unveils could launch the most serious debate over the balance of power, many legal scholars are saying, since the 1803 case Marbury vs. Madison , which established the doctrine of judicial review.
As we await the rules, some experts are debating whether the president even has the power to create such tribunals on his own without the permission of Congress. Some also question whether we are actually at war since Congress did not formally declare it on the Taliban or the al Qaeda terror network.
"We don't know when the war began, we don't know when the war will end — how long will the order remain in effect?" asks Ved Nanda, director of the International Legal Studies Program at the University of Denver College of Law.
Most experts say the president could easily maneuver these hurdles. Congress did pass a use of force resolution before our armed forces landed in or near Afghanistan, similar to the resolution that authorized the Persian Gulf War. And, if last week's rhetoric on Capitol Hill was any indication, Congress seems amenable to authorizing the creation of military tribunals to try terrorists, too.
In the end, it appears, President Bush has wide-ranging latitude in creating rules for military tribunals designed to try war criminals. The requirements for such tribunals are sparsely described in U.S. law: The president, in his role as commander-in-chief, may prescribe rules for military tribunals and commissions "so far as he considers practicable," the U.S. Code reads.
Habeas Corpus Hot Issue
Although the great majority of Americans support the concept of military tribunals for terrorists, the presidential order last month outlining the basis for such commissions set off a firestorm among civil libertarians and some members of Congress who questioned whether the White House was on a path to breaking the law.
Indeed, if the order is any guide, noncitizen, suspected terrorists tried before military tribunals will enjoy barely a whiff of the liberties defendants take for granted in the United States, whether in civilian or military courts.
Terror defendants might not be able to choose their own counsel. The normal rules of evidence may not apply, and the burden of proof may not reach the level of reasonable doubt. Conviction and sentencing would require only a two-thirds vote of the judges, not a unanimous vote.
Perhaps most menacing for civil libertarians: Terror defendants might not be able to seek legal remedy in any other court or challenge in court whether the tribunal even has the jurisdiction to try the defendants.