On March 21, 2002, the U.S. Department of Defense issued Procedures for Trials by Military Commissions of Certain Non-United States Citizens in the War Against Terrorism. Those procedures implement the Military Order issued by President George W. Bush on November 13, 2001, providing for, among other things, the first military commissions since the World War II era.

The Procedures (like the President's Military Order) were issued without the prior notice and opportunity for comment that the United States has followed for 20 years in connection with changes to the Manual for Courts-Martial. Further implementing regulations are being prepared, and a request for notice-and-comment rulemaking in that connection is still pending. Detailed information on the offenses to be tried by commission, and the elements of such offenses, has not been made public.

At year's end, no military commissions have been appointed and--so far as is known--no one has been designated for trial by or service on a military commission, although steps have reportedly been taken to identify military attorneys who might serve as counsel if and when a military commission is appointed. In the mean time, a considerable body of professional literature has been generated, assessing the legality and wisdom of resort to military commissions for the first time since the aftermath of World War II.

Eugene R. Fidell is president of the National Institute of Military Justice.