A group of military justice, human rights, civil liberties and criminal defense advocates is pressing the Department of Defense to go public with its proposed revisions of the rules and procedures that will govern military commissions.
The 2010 Manual on Military Commissions, which the group believes is now in the final stages of approval within the department, will spell out how military trials will unfold under the Military Commission Act of 2009. Once approved by the secretary of Defense, the manual will go to Congress for that body's review and it will be too late for the usual notice and public comment procedures followed by agencies engaged in rulemaking, according to the group.
"The Department of Defense has been working on this revision for some time but has not made a draft available for public comment, even though doing so is the norm for both federal court and court-martial rule making," said the group in a statement. "An opportunity for public comment may produce improvements in the final text. But even if it generates no changes, it will foster improved public confidence in the rules ultimately issued and in the administration of justice by military commissions."
The group includes the National Institute of Military Justice; Anthony Romero, executive director of the American Civil Liberties Union; Human Rights Watch; Peter Raven-Hansen of George Washington University Law School; The Constitution Project; the National Association of Criminal Defense Lawyers; Human Rights First; Stephen Vladeck of American University Washington College of Law, and the Open Society Institute.
The Defense Department did not return a request for comment on the group's statement but a spokesman said he believed the manual revisions were now awaiting approval by the secretary of Defense.
"There are obviously a lot of controversial issues and potential for legal snags that will be litigated for years," said Jonathan Tracy, assistant director of the National Institute of Military Justice. "If they allow public comment, the department would get the input of experts in military law, international humanitarian law and others areas and it would be a sounding board for what the Department of Defense is suggesting."
Tracy said a secret process for revising the manual is contrary to the Obama Administration's call for a more open and transparent government.
"We've been having this debate about military commissions since the Sept. 11 attacks," he added. "One of the problems they have is a lack of credibility. By doing this in the dark, it furthers that lack of credibility. There is really no reason not to open the process to the public. These are court rules -- rules of procedure and evidence."
Tracy noted that the manual for courts-martial undergoes the usual notice and public comment procedures, and very limited public input was allowed after President George W. Bush established the first military commissions in 2001.
The Constitution Project, in a separate statement urging public input into the process, recalled that the commissions created by Bush's executive order were struck down by the Supreme Court in 2006, and the justices in 2008 also found the replacement commissions constitutionally flawed.
"In order to avoid the mistakes of the past commissions and the resulting excessive delays due to challenges to the earlier system, the Obama administration should now provide an opportunity for public review and comment," said the project.
This article first appeared on The BLT: The Blog of Legal Times.