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When the Pentagon issues rules for operating military tribunals, will the rules be a “done deal” or will concerned outside groups and individuals get the chance to offer input on a final version? At least one group hopes it is the latter. The National Institute for Military Justice (NIMJ), a private organization based in Alexandria, Va., and dedicated to improving military justice and public understanding of that system, has asked the general counsel of the Department of Defense to provide public notice and an opportunity for comment on the rules that will implement the president’s order. On Nov. 13, President Bush ordered the use of special military tribunals to try accused terrorists. The president will decide who goes before the tribunals, but defense lawyers are drafting the rules of procedure. In a recent letter to DOD General Counsel William J. Haynes II, NIMJ’s president, Eugene Fidell of Washington, D.C.’s Feldesman, Tucker, Leifer, Fidell & Bank, said a public comment period would be “consonant” with the procedures used by the department on proposed changes in the Manual for Courts-Martial. DOD has used notice and comment rule-making in that context for 20 years, he said. DOD spokeswoman Susan Hansen noted that a public comment period is not required by law for these rules. “The Administrative Procedures Act, which requires a period of public comment in many instances, expressly excepts military commissions,” she said. “However, although it is not required, Secretary of Defense Rumsfeld has not made a final determination as to whether he will make it available all the same.” Fidell said NIMJ is “very pleased” that DOD has the matter under advisement. “Considering the fact that the level of public and bar interest in the military commissions is far higher than the level of public and bar interest in the regular court-martial process, this should be an easy decision,” he said. “Having an opportunity for comment on a set of proposed regulations would engender public confidence in the final product, might lead to some useful suggestions, and … would seem not to be precluded by a practical need for emergency action.” NIMJ, in its letter, suggested a two-week comment period for the rules. The American Bar Association, the Association of the Bar of the City of New York and a few other groups already have made public some recommendations on how the tribunals should operate. And, U.S. Sens. Patrick Leahy, D-Vt., and Arlen Specter, R-Pa., have introduced tribunal bills which are pending in the Senate Armed Services Committee. MORE TERROR RULES The Treasury Department has issued new regulations to implement provisions in the anti-terrorism USA Patriot Act designed to ease barriers to the sharing of financial information between the government and financial institutions. Treasury has proposed using its Financial Crimes Enforcement Network (FinCEN), a bureau that maintains a governmentwide data access service, as a link between law enforcement and financial institutions. Federal law enforcement officers would be able to submit the names of suspected terrorists and money launderers to FinCEN, which would then “blast” that information — electronically or by fax — to financial institutions for their check of accounts and transactions. If matches are found, law enforcement would follow up directly with the financial institution, according to the proposed rule. That proposed rule won’t become final until after a public comment period. The second rule, however, is an interim final rule — effective as soon as it is published in the Federal Register — and it concerns information sharing among financial institutions. After notice has been given to Treasury, financial institutions are permitted by the Patriot Act to share information about suspected money laundering and terrorist activities solely for the purpose of identifying and reporting those activities to the federal government. The interim final regulation creates a notice provision requiring financial institutions to file an annual certification if they wish to share information under this provision. The certification, which can be completed online at www.treas.gov/fincen, requires financial institutions to ensure the confidentiality of the information and to use the information only for the purposes specified by the rule.

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