Senate affirms path of antiterror tribunals

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 Guantánamo 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. And many are frustrated by that fact.

"It's a big black eye for American justice," says Elizabeth Hillman, an Air Force veteran and a law professor at Rutgers University in Camden, N.J. "It's a dilution of the standards developed during the last 50 years."

Modern military law was reborn 50 years ago with the adoption of the Uniform Code of Military Justice, and America's system of civil law dates back much further. As an amendment, this new measure was born of a week's discussion and involved no hearings to vet ideas in an open forum.

"We never had that kind of evaluation of competing proposals," says Eugene Fidell, president of the National Institute of Military Justice in Washington. "It was as a result of backroom discussions."

Given the history and experience that the civil and military justice systems have accumulated, critics such as Mr. Fidell question the need for tribunals. While trials connected to the war on terror might have specific needs, such as the protection of classified material, traditional courts can adapt, he says.

"Common law contemplates change as societal needs evolve," says Fidell. "The essential outlines of our legal system are the very wise product of centuries of legal thought, and I'm not willing to just throw that overboard casually."

The administration's allies argue that this is not some flippant whim, but a reaction to a challenge unlike any faced by the nation.

"No one's really contemplated this kind of war before.... We're in it, and we're learning, and we're adjusting," said Sen. Lindsey Graham (R) of South Carolina, who introduced this week's amendment, in a hearing this summer. "Military tribunals are the way to go."

The tribunals are an acknowledgment of the fact that suspected terrorists are fighting a war with no endpoint: They are not likely to return home peacefully, unlike prisoners of traditional wars against other nations.

Codifying the rules for tribunals, then, is an attempt to lend legitimacy and direction to an infant process, says Professor Banks. "It is a reaction to bring justice in wartime back to its traditions."

But some say that in the process of finding their way, the tribunals have caused more problems than they have solved, partly by holding detainees indefinitely without charge - to the anger of the Muslim world.

Says Professor Hillman: "The whole process is at least as apt to create problems for the US as the detainees in Guantánamo are."