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Constitution Project Joins Statement Calling for Transparency in Creation of Military Commissions Manual

Public review and comment period are necessary to avoid mistakes of past versions of military commissions

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
Rights Watch
Peter Raven-Hansen, Glen Earl Weston Research Professor
of Law, George Washington University Law School
The Constitution
National Association of Criminal Defense Lawyers
Right First
Steven I. Vladeck, Professor of Law, American University
Washington College of Law
Open Society Institute


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The Constitution Project is a politically independent think tank established in 1997 to promote and defend constitutional safeguards. More information about the Constitution Project is available at

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