Among the many defects of President Bush’s order for military commissions to try suspected al-Qaeda members or supporters is that it lumps together at least four categories of persons who have distinct sets of rights under either domestic or international law. The four categories of persons subject to trial by military commissions under the President’s order are: (1) prisoners of war captured in Afghanistan; (2) unlawful combatants arrested in Afghanistan or elsewhere in the world outside the United States; (3) illegal aliens in the United States or aliens who came to the United States legally—as with student or visitor visas—but with the alleged purpose of engaging in terrorism; and (4) legal aliens with permanent resident status who are accused of engaging in terrorist acts.
As written, the order violates, in different ways, the rights of all four categories; it recalls Clemenceau’s famous comment about the Dreyfus case that “military justice is to justice as military music is to music.” Fortunately, public debate over the order has been far more extensive than it has been over the many other violations of rights by the Bush administration since September 11.1 In consequence, the President’s order is being modified by Defense Department regulations and Jus-tice Department practice. These developments demonstrate that even at a time when a commencement speaker at a university is booed off the stage for giving a talk about constitutional rights,2 and when only one member of the US Senate voted against sweeping federal legislation abridging civil liberties,3 it is possible for rights advocates—along with some of the officials within the federal bureaucracy itself—to take on an overwhelmingly popular president and force him and his administration to back away from draconian measures.
The first two categories of people subject to trial—prisoners of war and unlawful combatants arrested outside the United States—derive their rights from international law. The essential difference between the two is that prisoners of war engage in open, announced combat in accordance with the customs of war. Unlawful combatants, on the other hand, attempt to conceal their activities. They include those who disguise themselves as civilians as well as spies, saboteurs, and terrorists. Under international law, in particular the Geneva Conventions, both categories may be tried before military tribunals. It is true that there is no mechanism for international enforcement of the Geneva Conventions other than public pressure. But the conventions set forth clear legal standards that the US has agreed to observe, and failure to do so will be seen as a violation of fundamental international law.
The Third Geneva Convention of August 12, 1949, ratified by the United States Senate on July 6, 1955, defines prisoners of war as:
(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.
(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and…
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