Too Little, Too Late

In a tacit admission that its planned military commissions were a stacked deck, the Bush administration has approved expanding the legal rights of Guantanamo Bay detainees who face trials before the commissions.

For example, there will be curbs on the power of the commissions to exclude defendants from their own trials and to conceal prosecution evidence from the defense.

The commission proceedings have been on hold since last November when a district court ruled that they violated U.S. treaty obligations, but an appeals court reversed that ruling in July and the commissions are tentatively set to resume in October. So far, only four of the 500 some detainees have been formally charged.

A Bush administration official told The Wall Street Journal, “It’s important that when the commissions get started, it’s the terrorists on trial and not the United States government.”

It may be too late for that. The Bush administration backed itself into a corner when it decided that neither U.S. nor international law applied to the detainees. Early on, the administration planned to use military tribunals modeled, it said, on a World War II panel that quickly tried and executed German saboteurs. But that only called attention to how flawed and rigged that process was.

Since then, with some of the detainees approaching four years in legal limbo, the administration has hemmed and hawed on how to try them. In the meantime, the detainees have won the right of access to the U.S. court system, further complicating the process.

It is almost as if the White House and the Defense secretary Donald Rumsfeld want to maintain a fagade of due process while reserving the ability to insure guilty verdicts. As it is, the only course of appeal from the commission findings is to Rumsfeld.

The treatment of the Guantanamo Bay detainees and the secrecy surrounding that facility have greatly tarnished the United States’ reputation as a champion of human rights and respect for law.

These half-measures to make the commissions seem fair fall short. Despite the administration’s efforts to shush them, the civilian and military defense lawyers will still say that the commissions are basically kangaroo courts loaded in favor of guilty verdicts — and they will be right.

(Contact Dale McFeatters at McFeattersD(at)