President George W. Bush’s authorization of the United States government to use “military commissions,” rather than the civilian federal courts, to legally process captured members of the suspected terrorist group, Al-Qaeda, for acts of terrorism committed against Americans has come under sharp attack from members of the opposition political party.

The most serious challenge to Bush’s proposal comes from the chairman of the Senate Judiciary Committee, who says the trials could give the world the impression that the United States is looking for “victor’s justice.”

“We need to understand the international implications of the President’s order, which sends a message to the world that it is acceptable to hold secret trials and summary executions, without the possibility of judicial review,” says Senator Patrick J. Leahy (D-Vermont), in what many consider the opening volley of a bitter fight by Democrats to oppose the trials.

“Could this put US citizens abroad, including military personnel and peacekeepers, at grave risk? We also must take care not to give the court of world opinion the impression that what we have in mind is victor’s justice,” says Leahy.

The President’s military order gives Secretary of Defense Donald H. Rumsfeld the authority to establish the courts, similar to those established by President Franklin D. Roosevelt after World War II.

Bush says he had determined that “an extraordinary emergency exists for national defense purposes, that this emergency constitutes an urgent and compelling government interest, and that issuance of this order was necessary to meet the emergency.”

White House Counsel Al Gonzales says the order gives Bush an option and an additional tool other than civilian courts for bringing to justice those directly responsible for attacks like the Sept. 11 assaults.

“The President would make a separate independent finding that someone was a member of a terrorist organization like Al Qaeda and that it was in the interests of the United States that the person be prosecuted,” says Gonzales. “That person would then be delivered to the secretary of defense who would take control of the individual.”

The order specifically names the Al Qaeda terrorist group, led by Osama Bin Laden, the suspected mastermind of the Sept. 11 terrorist attacks. Afghanistan’s Taleban has been harboring key members of Al-Qaeda for several years.

Leahy also questions whether Bush’s Executive Order creating the military commissions “fits under our Constitution and legal system,” adding that Congress had passed new anti-terrorism legislation “anticipating that they will be charged and prosecuted as regular criminals, not war criminals.”

“There has been no formal declaration of war, and in the meantime, our civilian courts remain open and available to try suspected terrorists,” Leahy says. “All this raises questions about whether the President can lawfully authorize the use of military commissions to try persons arrested here.” Leahy says there is “rising concern” in Congress about the Bush administration’s “preference for unilateralism as it promotes policy changes ranging from restructuring the INS to eavesdropping on detainees’ conversations with their attorneys to this order on military tribunals.”

“This approach needlessly threatens the unity that Congress and the administration have forged since Sept. 11,” says Leahy. “We are all in this together, and the spirit of bipartisanship that has largely prevailed in Congress since Sept. 11 must be reciprocated by the administration if it is to endure.”

Military commissions have a long history in American legal practice, dating to America’s Revolutionary War with Great Britain in the 1770s, when George Washington convened several to try British spies, most notably John Andre, the British Army major who correspondent with Benedict Arnold, a famous American traitor.

The commissions have been employed on a number of occasions since the US Constitution was adopted, and the Supreme Court has upheld their use in the very narrow circumstances — during time of war, for example — where those bodies have traditionally operated.

Under the Supreme Court’s precedents, such commissions may be used during wartime to try and punish individuals who qualify as “unlawful combatants.” The concept of an unlawful combatant is one of the most basic tenets of the laws of war.

Individuals, like Al-Qaeda, who do not wear uniforms, do not carry arms openly and who belong to an organization that itself does not recognize the laws of war, are considered unlawful combatants. Like spies and saboteurs they have traditionally been dealt with summarily, often with little or no legal process at all.

“Proceeding against unlawful combatants in special tribunals is justified because such individuals have chosen to put themselves beyond the law’s protections or, more correctly, they have willfully subjected themselves to a different system of law because of their status as unlawful combatants,” says David Rivkin, Jr, a partner at Baker and Hostetler, a Washington law firm.

Rivkin says it is the unique status of military commissions, and not the nature of the crimes involved that permits their trial before military commissions. “Ordinary civilians and lawful combatants — in other words, members of military organizations that do have a recognized chain of command, wear uniforms, carry arms openly and acknowledge the laws of war — cannot be subjected to trial by military commission, even if they are accused of criminal acts such as war crimes or crimes against humanity.”

According to Rivkin, civilians accused of such crimes must be tried in the normal civilian courts, with the fullest protections of the American Bill of Rights, and service members accused of such crimes are entitled to regular courts- martial, with all of the very elaborate procedural protections accorded by those bodies.

“That said, it is also the case that the use of military commissions is a highly unusual and extraordinary action,” Rivkin adds.

“The last time such commissions were employed was during World War II, when Congress invoked the full war powers of the United States by formally declaring war on Germany and Japan, and when the United States faced an enemy far more powerful and dangerous than Al-Qaeda or the Taleban.”

Rivkin says critics of Bush’s legal action have no sound basis for their argument that the due process provided in military commissions is equivalent, if different from that, provided by the Bill of Rights in civilian courts.

“Military commissions operate in secret. There are no juries, and the tribunal’s impartiality depends entirely upon the good will and behavior of the commissioners,” says Rivkin.

“The right to confront and cross-examine witnesses, as well as other procedural protections, can be severely circumscribed. These are not the new civil liberties — such as the Miranda warning — manufactured by the Supreme Court under Chief Justice Earl Warren in the 1960s.

“The rights at issue here are the bedrock of our system of ‘ordered liberty,’ and were developed over centuries,” says Rivkin.

“The founders of our republic held them as dear as life itself and incorporated them into the Constitution because they meant them to be respected. Such clear and dramatic departures from our most fundamental legal traditions can be justified only in the most extreme circumstances...The President has concluded that such circumstances exist.”

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