A remarkable ceremony took place at the Pentagon last week. Defense Secretary Donald Rumsfeld swore in the civilians who will be reviewing the judgments reached by military commissions at Guantanamo Bay, Cuba. Here is their oath of office: “Does each one of you swear that you will faithfully and impartially perform according to your conscience and the rules applicable to the review filed by a military commission all the duties incumbent upon you as a member of the review panel, so help you God?”
Not a mention of the Constitution. The Rumsfeld Oath is in stark contrast to the one taken by ordinary federal judges, who solemnly swear to “perform all the duties incumbent upon me under the Constitution and laws of the United States.” In contrast, the defense secretary's appointments swear to recognize no higher authority, under God, than the secretary himself.
The Rumsfeld Oath serves as the capstone of a ramshackle edifice that the defense secretary is constructing at Guantanamo Bay. The administration has refused to follow the Geneva Conventions, nor has it prosecuted alleged terrorists for war crimes under the well-established procedures of the Uniform Code of Military Justice. Instead, it has insisted on creating special rules for trial by “military commission,” an institution that lapsed into disuse more than a half-century ago.
The Pentagon's initial efforts to resurrect these commissions don't inspire confidence. Five officers have been appointed to serve on the military commission at Guantanamo Bay, and three have obvious conflicts of interest: One served as an intelligence officer in Afghanistan and Iraq, another helped transfer prisoners to Guantanamo Bay, and the wife of a third was an employee of John Altenburg, the senior Pentagon official who is supposed to oversee the trials. During preliminary proceedings, the only legally trained officer on the panel has misrepresented his past pronouncements on a key legal issue and was reduced to embarrassed silence upon learning that his prior comments had been taped. The problems have been so blatant that the senior military prosecutor has agreed that some members of the tribunal should consider disqualifying themselves.
Within this context, even an aggressive civilian review panel wouldn't suffice to reassure the world that the United States its living up to its constitutional commitments to fundamental fairness. But Rumsfeld's appointments to his four-man panel hardly suggest energetic vigilance. Griffin Bell and William Coleman were distinguished members of Jimmy Carter's cabinet, but they are now 85 and 84, respectively. The youngest member is 64-year-old Frank Williams, chief justice of Rhode Island's Supreme Court, and only he has a deep knowledge of military law.
The first trials by commission are scheduled for December. If the Democrats win in November, they should immediately act to avoid a looming jurisprudential catastrophe and return to the path marked out by the Geneva Conventions. These treaties require us to try prisoners of war using the very same procedures we use to try members of our own armed forces.
There is no reason to evade this command. The U.S. military has an excellent track record in administering the Uniform Code of Military Justice. And in contrast to Rumsfeld's civilian panel, the code creates a special supreme court composed of civilian judges with long experience in balancing the needs of national security against constitutional commitments to due process.
But whatever happens at Guantanamo Bay, the Rumsfeld Oath is a special disgrace. Every precedent that goes unchallenged today will gain new vitality after the next terrorist strike. Rumsfeld should immediately make it clear that his omission of our supreme law was unintentional, and that his civilian review board is charged with upholding the Constitution, and not his own fiat. If he remains silent, the next Congress should pass a statute requiring all responsible government officials to swear explicit fealty to the Constitution. Nothing less than the rule of law is at stake.
Bruce Ackerman, a professor of law and political science at Yale University, is the author of The Emergency Constitution.