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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.
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