Experts say noncitizens arrested in the United States, especially those who entered the country legally, should most likely have more constitutional guarantees than those caught in Afghanistan. "There's no doubt that noncitizens abroad are not entitled to the same rights as in this country," says Prof. Ed Sherman of Tulane University.
After all the hype about military tribunals, it is still unclear how many terror suspects captured abroad may ever find their way to one of these commissions. Many captured Taliban fighters may satisfy international definitions of prisoners of war, who can be tried for war crimes, but not for actions during regular combat. Many al Qaeda and Taliban fighters may not make it out of Afghanistan alive. And terror suspects captured in some European countries may not be extradited to the United States because of Europe's opposition to the death penalty.
"What very well may turn out to be the case is a more nuanced analysis is required in which military tribunals may be useful as a last resort for certain cases," said Madeline Morris, a Duke University law professor. "Maybe we won't use them at all, or for certain cases where the suspect is found overseas, remains overseas, and was apprehended in a military operation in Afghanistan," she said.
Mindful of the Public Diplomacy War
In crafting tribunal rules, the Bush administration should be mindful of insulating the White House from harsh international criticism, some experts say
After all, some critics say, if the United States defies international standards, Bush may face challenges gaining political support for any further battle in his war on terrorism. In the past, the United States has challenged the use of a military commissions to try one of its citizens, Lori Berenson, who was accused of treason in Peru.
"To the extent the Bush administration proceeds with military tribunals and to the extent they are perceived as unfair, it will undercut our attempt to persuade especially Muslim countries that we are acting justly and have the evidence to support a case against al Qaeda," said Cornell University law professor David Wippman. "There's a danger of winning the military battle but losing the public diplomacy war."
But even if President Bush's tribunals are challenged all the way to the Supreme Court, at least one justice may find the administration's logic agreeable. Chief Justice William Rehnquist has written and spoken publicly about the topic of civil liberties in wartime — at a time, of course, when he had no idea the issue could appear before him in court.
At a speech last year in Norfolk, Va., Rehnquist told a gathering of lawyers that courts have largely reserved decisions favoring civil liberties in wartime to be handed down after the war was over, not while it was ongoing. In the greater scheme of things, he said, such an approach may be best.
"While we would not want to subscribe to the full sweep of the Latin maxim — Inter Arma Silent Leges — in time of war the laws are silent," Rehnquist told his audience, "perhaps we can accept the proposition that though the laws are not silent in wartime, they speak with a muted voice."
It is unclear, of course, to what extent Rehnquist and the eight other justices would be willing to mute the laws during this current war against terrorism.