Public review and comment period are necessary to avoid mistakes of past versions of military commissions
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WASHINGTON – Yesterday, the Constitution Project joined with eight other organizations and prominent scholars in releasing a statement calling for transparency and a public comment period as the Department of Defense develops its Manual for Military Commissions. The Manual, once approved by Congress, will spell out the rules governing the proceedings of the most recent version of military commissions, which were revised under the Military Commissions Act of 2009.
The military commissions created by Executive Order by President George W. Bush in 2001 were hastily adopted in secrecy, and then struck down by the Supreme Court as unauthorized by law. The replacement commissions authorized by Congress under the Military Commissions Act of 2006 were similarly criticized for the lack of opportunity for public participation as well as for the lack of due process protections in their procedures. 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. Without such transparency, the new commissions will remain under a cloud of secrecy that will generate public skepticism and fail to provide any legitimacy.
The statement asserts, in part:
“As a new round of military commission trials takes shape at Guantanamo Bay, an important piece of unfinished business is revision of the Manual for Military Commissions….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. 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.
“There is no reason to conduct this critical process in secret, especially given the Administration’s stated commitment to transparency. Failing to involve the public in the ways suggested here will only fuel existing concerns about the commissions.”
The signatories to the statement are:
National Institute of Military Justice
Anthony D. Romero, Executive Director, American Civil Liberties Union
Human Rights Watch
Peter Raven-Hansen, Glen Earl Weston Research Professor of Law, George Washington University Law School
The Constitution Project
National Association of Criminal Defense Lawyers
Human Right First
Steven I. Vladeck, Professor of Law, American University Washington College of Law
Open Society Institute
Click here to view the coalition statement.