Shouts from the desert

Given the continual claims by our own Government that the Guantanamo commissions represent a reasonable standard of justice, you could be excused for believing they were courts. In fact, they are not courts at all. The commissions were established under the US President's Military Order of November 13, 2001 - Detention, Treatment and Trial of Certain Non-Citizens in the War Against Terrorism. Thus they were created as an executive act, without the support of an Act of Congress. Under the Constitution of the United States of America, courts are a separate branch of Government, and cannot be created by an executive act.

The creation of the tribunals as an executive act means they are subject to direction by the executive - that is, the President could give the tribunal an order to find a particular defendant guilty. There appears to be no reason why such an order could not be given in secret. That alone creates significant grounds for concern - separation of judicial acts from the executive is a key tenet of both the Constitution of the United States of America, and our own Constitution.

But reading the order reveals something even more concerning. It seems the President would not have to make this order, because there is a failsafe. Under section 4(c)(8) of the order, the tribunal procedures are required to include:

submission of the record of the trial, including any conviction or sentence, for review and final decision by me or by the Secretary of Defense if so designated by me for that purpose.

In other words, the military commission does not make the decision - they make a recommendation to the President, who gets to make his own decision. Even if the commission says "not guilty", the President can say "guilty". The penalties that can be imposed under this order include "life imprisonment or death" (section 4(a)). So there we have it, the President of the United States claims the power to order a person imprisoned for life, or even put to death, without having appeared before a court, and even if the kangaroo-court tribunal he established finds the person not guilty.

For good measure, under section 7(b) of the order:

With respect to any individual subject to this order--
(1) military tribunals shall have exclusive jurisdiction with respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy or maintain any proceeding, directly or indirectly, or to have any such remedy or proceeding sought on the individual's behalf, in (i) any court of the United States, or any State thereof, (ii) any court of any foreign nation, or (iii) any international tribunal.

In other words, no appeal, no access to a real court anywhere in the world - just put up with the whim of the President.

And who is subject to the order? "any individual who is not a United States citizen [who] I determine from time to time in writing...[was a member of al Quaeda, a terrorist, or harboured such a person, and should be subject to the order]" (Section 2(a)).

It has been some time since a British King claimed the right to put a person to death without trial, but that is what the President of the United States is claiming now.

Land of the free indeed.