Senate Affirms Path of Antiterror Tribunals ; Tribunals Are 'A Dilution of the Standards Developed during the Last 50 Years.'- Law Prof. Elizabeth Hillman
Mark Sappenfield writer of The Christian Science Monitor, The Christian Science Monitor
In its efforts this week to bring clarity to the confusion surrounding the Bush administration's military tribunals, the US Senate might also have helped to make the controversial process a fixture of American law.
Since 9/11, President Bush has insisted that neither the country's civilian nor its military court systems are suitable to handle cases involving suspected terrorists held at Guantanamo Bay. As a result, he has used military commissions that have essentially created a third court system run by the executive branch - angering international allies and civil libertarians who worry that the trials lack the checks and balances of America's traditional courts.
In repeated decisions, the US Supreme Court has insisted that civilian courts have a role in the process. The Senate amendment passed this week, however, appears to try to split the difference - offering the federal courts limited oversight, yet confirming tribunals as a distinct legal entity in the war on terror.
It is Congress's first attempt to play its own role in shaping a legal system to the needs of prosecuting those who are defined by their disdain for the rule of law. And with no obvious end in sight to the war on terror, the decision could have long-term consequences, as a new legal process for America's new class of detainees is constructed in bits and pieces.
"You have created something that is the new normal," says William Banks, director of the Institute for National Security and Counterterrorism at Syracuse University in New York.
As of yet, the actual workings of the tribunals are an unknown: They continue to be delayed by legal wranglings. But it is already clear that these tribunals differ from those that came before in both character and content.
A century ago, or even earlier, commissions were convened to try soldiers for basic crimes not covered under military law, such as public drunkenness or brawling. In World War II, they were used to charge, try, and execute Nazi collaborators - all within the space of a few weeks.
Even before this week's action by the Senate, which would under certain conditions allow detainees to appeal commission rulings to a federal court, the commissions had taken on aspects of greater permanence. They have been a primary means for holding and charging terrorists captured in the war on terror.
Now, if the House and the president agree to the Senate's amendment, the tribunals will have the added weight of codified congressional law.
In some respects, the rules governing tribunals will be of most concern to the military community, since uniformed lawyers will run the commissions. Yet military legal experts are quick to point out that these tribunals are not part of the established military legal system: They are a separate process whose rules are shaped by the administration. …