Last summer, the National Institute of Military Justice testified about the Military Commissions Act of 2006 (MCA), then under consideration on Capitol Hill. Congress passed the MCA because the Supreme Court had ruled in the Hamdan case on June 29, 2006 that the Guantanamo military commissions, as originally created by the administration, were illegal. The bill, which is now law, authorized military commissions and gave President Bush wide latitude in fashioning rules to implement the statute.
Once the MCA was enacted, the administration began working on the new rules that would be presented to Congress in mid-January. Given the importance of those rules and the flaws in the earlier rules they will replace, a number of organizations asked that the new rules be made available in draft so that the public could submit comments before they were promulgated in final form. That is the process used for other federal rulemaking, although it is not required by statute for military commission rules. NIMJ submitted the first request for notice-and-comment rulemaking on Sept. 28, 2006, followed soon after by the New York City Bar Association and the American Bar Association. The Pentagon never responded to any of these letters. Other organizations submitted letters to Congress and the Department of Defense, and urged their members to do so as well. At a dinner meeting of the ABA’s Standing Committee on Law and National Security on Dec. 1, 2006, a Pentagon official revealed — in response to a question from the floor — that the Pentagon would not be providing an opportunity for public comment on the draft because the MCA set a deadline — which has arrived today — for submission of the final rules to Congress. The claim was there was no time to accommodate a public comment period.
Because these rules were not developed in the open, confidence that the trials will be conducted in a fair and just manner is necessarily compromised. The rules were drafted and reviewed in secret, and are due to be finalized today, without the slightest recognition that transparency and public confidence in the administration of justice are inextricably linked.
In a society that claims to be open, free, and fair, lawmakers should have demanded that every step in the creation of the new generation of military commissions was conducted in public. It is certainly peculiar, in a country that prides itself on the constitutional right to a public trial, that the rules that will govern these important trials, under new legislation, were framed in secret. Public comment would not only have fostered public confidence in the end product, but also may have led to improvements in the rules. Whether you like the idea of military commissions, or dislike it, there was no reason to cut the public and the bar out of this process, and certainly no basis for claiming that the administration had no alternative. Congress often places reporting and submission deadlines on government agencies, but it also regularly relaxes such requirements. In this instance the Pentagon plunged ahead, did not seek any extension, and used the deadline as a shield. Congress should have put a stop to this and instructed the Pentagon that it need not — and should not — file the rules until the public had been afforded at least 60 days to comment on the draft. Instead it allowed another step toward unchecked executive-branch power in the implementation of military commissions.
It’s bad enough that Congress engaged in midnight deal-making when it framed the MCA. It could have made amends, at least in part, by subjecting the implementing rules to the harsh disinfectant of sunlight before they took effect. Now that this opportunity is passing today, the 110th Congress must exercise its oversight power to review the new rules for consistency with American values of fairness and due process, or start over again and amend the MCA.
Eugene R. Fidell is president of the National Institute of Military Justice, and Kathleen A. Duignan is the group’s executive director. Its website is www.nimj.org