In the last few weeks the military commissions created by President Bush to try suspected al-Qaida members have gone from a procedure to adjudicate war criminals to a geopolitical bargaining chip.
It appears that the kind of tribunal you will have to face depends on the country you're from.
On July 3, the White House announced that six "enemy combatants" would be subject to hearings before a military commission. Though names were not released, it soon became apparent that the six included two British citizens, Feroz Abbasi and MoAzzam Begg, and one Australian, David Hicks, all prisoners at Guantanamo Bay, Cuba. The news sparked loud dissent in Britain, where 260 members of the nation's Parliament signed a petition condemning the process.
To relieve the pressure and to aid his pal Tony Blair, Bush agreed last month to suspend the military commission proceedings against the prisoners from Britain and Australia while terms were discussed. Negotiations continue, but the Defense Department has already announced that the Britons and the Australian will not face the death penalty and will not have their attorney-client conversations monitored - conditions other commission defendants face.
Maj. John Smith, a Defense Department attorney with the military commissions, insists that these accommodations are warranted based on the facts of each man's case, not political considerations. But other administration insiders have acknowledged the truth - that this easing is all about international relationships.
So this is what we are saying to the world: For those nations seen as with us, detained nationals can expect more due process and no possibility of execution. For detainees whose governments did not volunteer for the "coalition of the willing," well, hey, rules are rules.
We have already tarnished any veneer of fairness for these commissions by precluding Americans from being brought before them. In accordance with Bush's November 2001 military order, the commissions have jurisdiction only over non-Americans. The limit was a political move designed to make the military proceedings more palatable to the public - Americans seem to feel that stripped-down due process is okay as long as it only applies to foreigners. That means the two Americans designated as enemy combatants, Jose Padilla and Yaser Hamdi, will not have to face this form of quasijustice.
Other nations are right to decry this as a double standard.
"Unjust, unwise, unAmerican" declared Britain's Economist magazine in describing the commissions. It noted how the American Taliban, John Walker Lindh, was allowed to be tried in a civilian court; and it compared the due process rights afforded under Bush's military commissions with that given prisoners under South African apartheid. Bush's system came up short.
"The planned commissions lack the one element indispensable to any genuinely fair proceeding - an independent judiciary," wrote the Economist. "The military officers sitting as judges belong to a single chain of command reporting to the secretary of defense and the president."
Even American soldiers facing a court-martial have recourse to civilian courts on appeal.
But keeping the American legal system out of the picture has been the Bush administration's M.O. from the start. It doesn't want objectivity leeching in. The detainees are purposely held in Cuba to keep them out of reach of our federal courts. And the rules on civilian lawyers who might represent a Guantanamo detainee are so onerous as to be absurd.
Civilian attorneys are required to pay for and obtain a security clearance; they must allow all conversations with their client to be monitored for "intelligence purpose;" and they must not leave the site of the commission trial without express permission of the Defense Department. They also may be denied evidence that could assist in their client's defense if the prosecution believes it would hurt American interests. The conditions are so restrictive that Lawrence Goldman, president of the National Association of Criminal Defense Lawyers, has advised his 11,000 members not to participate.
Bush administration officials may be hoping the military commissions will demonstrate their commitment to the rule of law, but outside our borders they are viewed as a stacked deck. Bush has set up a legal process where all authority flows from him - no checks, no balances. He is only adding to this "thumb on the scale" appearance by granting some of our allies a pass. No one is likely to mistake this for a fair process.
