“The commissions are a discredit to American traditions of justice,” said Jamie Fellner, director of Human Rights Watch’s U.S. Program. “The Department of Defense should go back to the drawing board.”

The Department of Defense has incorporated certain due process safeguards to the proposed commission proceedings, including making the trials public, requiring proof beyond reasonable doubt for conviction, presentation of evidence and cross-examination of witnesses. But these provisions provide a patina of due process to proceedings that otherwise remain seriously flawed.

Among the problems with the current rules:

1) Lack of Independent Judicial Oversight. The rules limit appellate review of the commissions to a specially created military panel appointed by the Secretary of Defense. President Bush has final review of commission convictions and sentences. The executive branch is thus prosecutor, judge and jury, and, potentially, executioner. There is no independent judicial review of verdicts, no matter how erroneous, arbitrary, or legally unsound.

2) Violation of Rights of POWs. The lack of independent appeal is a particularly grave fault if the commissions are used for people who should have been considered prisoners of war, such as the Taliban detainees at Guantánamo. Prisoners of war (POWs) are entitled to at least the same procedures as the detaining power would give its own troops accused of comparable crimes. In the United States, that means a court-martial, with appeal to a civilian court. The failure to follow this procedure for people who should be POWs would be a war crime.

3) Restrictions on Right to Counsel. Commission rules require defendants to be represented by military defense counsel. Defendants may put civilian counsel on their defense team but a military lawyer must remain on the team as well.

4) Limitations on Effective Defense. The commission rules place severe limitations on the ability of defense lawyers to communicate confidentially with their clients, to travel and to conduct the investigations and research necessary for their case. For example, attorney-client conversations may be monitored by the government; attorneys may not talk about any aspect of the case with prospective witnesses; and all research must be done at the site of the commissions (presumably Guantánamo Bay). In addition, civilian counsel, even if they have the requisite security clearance, may not be given access to all the materials presented to the commissions.

5) Censorship of Defense Counsel. The rules impose a gag order on defense counsel, preventing them from speaking with the press or the public unless they receive prior approval from military officials. Some limitations on defense counsel’s ability to comment publicly continue even after the trials have ended.

6) Military Trial of Civilians. The military commissions will be permitted to try persons who were never combatants and whose connection to armed conflict may be tenuous at best. For example, a non-U.S. citizen living in the United States who has financially contributed to al-Qaeda could be prosecuted before the commission for “aiding and abetting” the enemy. With U.S. courts fully functioning, there is no justification for subjecting civilians to military trial and violating their right to a hearing by an independent and impartial tribunal.

7) Second-Class Justice for Non-Citizens. Under the President’s Military Order, U.S. citizens may not be tried before the commissions, regardless of whether they were enemy combatants who committed war crimes. This exclusion presumably reflects a political judgment that the U.S. public would not accept the truncated justice of military proceedings for U.S. citizens. International human rights law, as well as U.S. constitutional law, does not permit the United States to discriminate between citizens and non-citizens with regard to their fair trial rights.