Preventing the defendant from challenging the legality of the order in another court is a violation of the writ of habeas corpus, experts say, and could eventually land the issue before the U.S. Supreme Court. Only the U.S. Congress has the constitutional power to suspend the writ of habeas corpus, scholars say, and only in rare cases when the public safety requires it due to "rebellion or invasion."
"Neither Congress nor the president can ever forbid a civilian from going into a federal court to challenge the legality of his detention by the military," said Christopher H. Pyle, a constitutional law professor at Mount Holyoke College.
Our Own Star Chamber?
In the weeks since the presidential order was announced, some White House spokespeople have taken pains to counter the claims of critics that the commissions will resemble "star chamber" tactics.
In an op-ed to The New York Times recently, White House Counsel Alberto Gonzales has said the proceedings would not be "secret," but would be designed to protect classified information. Anyone who appears before such a tribunal will receive a "full and fair" trial, he said.
At the same time, though, other Bush administration rhetoric is tough, and suggests terror suspects certainly won't have the benefit of drawn-out, highly publicized trials we've seen so often in the United States. In justifying the use of tribunals, Attorney General John Ashcroft told members of Congress last week that al Qaeda operatives already had been taught how to take advantage of the benefits of our free society.
"Al Qaeda terrorists are now told how to use America's freedom as a weapon against us. They are instructed to use the benefits of a free press, newspapers, magazines, broadcasts, to stalk and to kill victims. They are instructed to exploit our judicial process for the success of their operations," he said.
Indeed, says Kenneth Anderson, a law professor at American University, the president is tapping into his proper authority to bring justice to noncitizens abroad at wartime.
"The constitutional claim that we owe a U.S. district court trial to anyone we arrest anywhere in the world is not what the Supreme Court has ever said," Anderson said. "Our constitution is not a constitution for the world."
Tribunals Might See Limited Use
Despite the tough talk, some experts predict the Pentagon regulations governing military tribunals will not end up being the "kangaroo courts" some critics have alleged.
The tribunals may end up being used only in special circumstances, in the end, and perhaps won't apply to the hundreds of noncitizens arrested in the United States since the Sept. 11 terror attacks.
Experts say they're doubtful the president has the authority to try even illegal alien residents held in the United States under military commissions when the civilian courts are open and functioning. The U.S. Supreme Court has ruled that military powers should only trump civilian law in the rarest of circumstances, legal experts say.
After all, terror suspects involved in the 1993 World Trade Center bombing, a plot to blow up New York City landmarks and the 1998 bombings of U.S. embassies in Africa all were successfully brought to justice here in U.S. civilian courts.