Last week, I remarked on the special oath sworn by the civilians selected by Defense Secretary Donald Rumsfeld to review the extraordinary military tribunals he has convened at Guantanamo Bay. The remarkable thing about it was that members of this board failed to swear fealty to the Constitution.
I urged the secretary to correct this mistake, and urged Congress to pass a statute to correct the secretary should he decline. But after more research, I discovered that Congress has already done its part of the job. Indeed, the first statute ever passed by the first Congress -- on June 1, 1789 -- required such an oath, and current law expressly requires all persons appointed "to an office of honor or profit in the civil service or uniformed services" to swear that they "will support and defend the Constitution."
So the Rumsfeld Oath is flatly illegal, and serves as a further indication of the administration's casual approach to legality in connection with Guantanamo. All four members of the Rumsfeld review panel are leading jurists: former attorney general and federal judge Griffin Bell, former congressman and current Pennsylvania judge Edward Biester, former Secretary of Transportation William Coleman, and Chief Justice Frank Williams of the Rhode Island Supreme Court. Once the illegality of their oath is brought to their attention, they should act decisively to rectify the situation.
Their decision to take a second public oath emphasizing constitutional fidelity will have another salutary function. It will dramatize the dangers involved in displacing our tried and true system of military justice with the secretary's jerry-built alternative. A constitutionally appropriate oath is already administered to the civilians who serve on the regular court of military appeals, without the need for a second ceremony. They 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."
Hopefully, the Secretary's review panel will never have an opportunity to exercise its powers. His entire scheme is now under constitutional challenge, which will ultimately be decided by the federal courts. But the members of the review panel should not wait for the outcome of this lawsuit to get themselves on the right side of the law, and expressly swear fealty to the Constitution of the United States. They should act immediately to rectify the legally unacceptable situation in which they find themselves.
Bruce Ackerman, professor of law and political science at Yale, is author of "The Emergency Constitution."
