Introduction

M

ore than a year ago, a major American newspaper detailed how a series of policy directives by the Bush administration had effectively created a “parallel" system of justice in America, in which terrorist suspects could "be investigated, ailed, interrogated, tried and punished without legal protections guaranteed by the ordinary system.” The ACLU believes that this "paralel" system of justice fails to provide the safeguards necessary to ensure due process.

These White House initiatives include the "enemy combatant" designation for American citizens, the holding of suspected terrorists without charge as material witnesses, the mass detentions at Guantánamo Bay and a system of military tribunals authorized unilaterally by the president.

All of these initiatives share one discouraging trait: an unwillingness by the Bush administration to trust basic checks and balances on government power, like those that the American legal system demands to protect the innocent from false arrest, prosecution, conviction or execution.

Now, with an announcement by the Defense Department that it will begin trying detainees in these newly created military commissions, this inferior legal system seems set to start operating in earnest.

Pursuant to a Military Order signed by the president shortly after the tragic attacks of Sept. 11, 2001, the Department of Defense has formalized the White House plan to try certain non-citizens alleged to be eremy combatants in military commissions, where they will not enjoy the basic due process protections accorded under the Uniform Code of Military Justice or required by internat.ona. law.

The military, with the president as its commander in chief, will have sole authority to appoint the judges, prosecutors and deferse counsels for these commissions Indeed, the

Department of Defense appears to be the only government body that can hear any appeal civilian courts wouldn't even enter the equation. Attorney-client privilege is weakened, evidence - even evidence of innocence could be withheld from the proceedings under the vaguely defined guise of “national security" and the courts are so unusual that the basic rules of procedure could be changed midstream during the tribunal.

These military commissions have not been congressionally reviewed or authorized. Thus, the rules governing their use could be changed at the whim of the president. President Bush, with a stroke of his pen, could begin to use the commissions to try non-citizens on American soil for crimes unrelated to 9/11. The president could even decide -- as did President Roosevelt in World War II to subject American citizens to