The Bush administration is ignoring, if not defying outright, the U.S. Supreme Court’s ruling that all terror suspects must be able to challenge their imprisonment. The opening round of detainee military tribunals at Guantanamo Bay last week resembled something between a Mel Brooks farce and the kangaroo courts of former Ugandan dictator Idi Amin. Maybe Captain Kangaroo courts. The proceedings didn’t look anything like justice, military or otherwise. Meanwhile, two U.S. citizens still sit in military brigs, isolated from their lawyers and months if not years away from the hearings the high court says they deserve.
The U.S. criminal justice system, including its military stepchild, is supposed to stand for due process, impartiality and openness. These are the same principles, after all, that U.S. troops are fighting -- and dying -- to seed in Iraq and Afghanistan. But the slapdash preliminary hearings for the first four of some 600 Guantanamo detainees violated basic tenets of fairness.
The tribunals are an ad hoc invention, authorized by President Bush three years ago when he rejected the established military court-martial system and the federal criminal courts, either of which would have worked more smoothly. As a result, military officials have few precedents to follow and last week seemed confused about which rules or legal procedures applied.
Members of these tribunals -- the jury, in effect -- are military professionals appointed by the Pentagon. The tribunal’s chief officer is a retired Army judge, the only member of the panel with legal training. He is both the judge and a jury member, ruling on motions and voting with the five other commissioners.
In a criminal court, the lay jury decides the facts and the judge rules on questions of law. Here, however, tribunal members decide on both. Yet the five nonlawyers were clearly befuddled last week when asked to define concepts such as due process and reasonable doubt.
The cards are stacked against detainees in other ways too. Government prosecutors got spacious quarters and their own staff to prepare for the hearings. Military defense lawyers were crowded into one room. Midway through the week, the conference table they all shared was removed. The Arab interpreters were so incompetent that the proceedings resembled a game of “telephone,” in which the message veered closer to gibberish with each repetition. Yet this game is about men’s futures.
Given the confusion, officials must feel justified in limiting reporters to pen and paper, which might as well be quill and parchment. No photographic, video or audio recordings of the hearings will ever be released. From the government’s perspective, perhaps the less that Americans know of these bumbling proceedings, the less they’ll care.
The two U.S. citizens that Bush has labeled as enemy combatants, Yaser Hamdi and Jose Padilla, haven’t gotten even this much. Years after their arrests, each remains in a military brig, often in solitary confinement. Even after the Supreme Court’s declaration that they have a right to a hearing, government lawyers outrageously are fighting every lower court petition filed by lawyers retained by the men’s families. And still the government has filed no charges against Hamdi or Padilla.
The Supreme Court made itself clear in its June rulings: Terror suspects are entitled to at least bare-bones due process. For government lawyers to insist otherwise is unprecedented. Their assertion probably doesn’t scare terrorists, but it throws a pall on the lush praise for U.S. freedoms that decorate the Republican National Convention.