Letter to the Editor

To the Editor:

This letter is in response to two articles [September 29, & October 6, 2004] that Bruce Ackerman published on The American Prospect Online. He argued that the oath given to the judges who will handle the appeals, if any, from the war-crimes tribunals [the military calls them "military commissions"] is illegal because it does not mention the Constitution. One of the articles was subtitled "Forget the Constitution," and Professor Ackerman wrote that the oath that was administered is "the capstone of a ramshackle edifice."

I am afraid that it is the professor's research that is ramshackle. The oath that all military judges (including the review-panel judges) take as commissioned officers provides the "support and defend the Constitution" language that Professor Ackerman wants. He is confusing the commissioning oath with the review-panel oath. There is no need for the judges to take the commissioning oath over and over again. They only need to take it once. There is no need to be redundant.

That review-panel oath, by the way, mirrors exactly the oath taken by all military judges, and that oath also does not mention the Constitution because they took that oath earlier, when they were commissioned. This issue is not complex. One can look at the 5 U.S.C.A. section 3331 and R.C.M 807(b)(2)(A). Both are publicly available. "R.C.M." stands for Rules of Court Martial.

Professor Ackerman wrote two articles, both making the same mistake and making astounding accusations. He wrote in one article that "these four experts" who took the oath "should know better." Actually, someone else should know better, and Professor Ackerman sees that person every morning when he looks in the mirror and shaves.

Ronald D. Rotunda

George Mason University Foundation Professor of Law

George Mason University School of Law

Arlington, VA

Bruce Ackerman responds:

At the Pentagon ceremony, the four members of the Rumsfeld review panel were not sworn in as military officers. They simply took an oath to serve on the panel, and no mention was made of anything else.

The Pentagon Web site reports that they will be awarded temporary commissions as major generals "while serving intermittently in this role." But under the applicable statute, these temporary commissions only “become effective when that person begins active duty,” and the panel has yet to do any business, as the military commissions sitting at Guantanamo Bay, Cuba, have not reached a final decision in any of the cases before them. At present, the members of the review panel have sworn only one oath, and that one is illegal.

When called into active service, the panel members will swear the standard military oath, but they should also explicitly swear to "faithfully perform all the duties incumbent upon me as an appellate military judge, in accordance with the Constitution of the United States and the Uniform Code of Military Justice." This is the oath sworn by officers sitting on military courts of criminal appeal. Like these military officers, the Rumsfeld panel serves to hear appeals, and they serve as a much better reference point than the officers hearing court-martial trials discussed by Professor Rotunda. Under established military practice, appellate judging is a distinct office requiring a distinctive oath of fidelity to the Constitution.

Bruce Ackerman

Sterling Professor of Law and Political Science

Yale University

New Haven, CT