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.
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.
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.