The Department of Defense (DoD) released the long-awaited revised Manual for Military Commissions Wednesday. This is important because the Manual provides the rules of procedure and evidence the commission attorneys must understand and follow when trying the cases. The National Institute of Military Justice (NIMJ), along with several other nongovernmental organizations and academic experts, called on DoD to allow for public notice and comment on the proposed Manual before it was approved. This is the process followed when the government issues new rules for the federal courts and courts-martial. The government did not live up to President Obama's call for transparency, choosing to enact these rules without public input. Even more troubling, however, is that, by shrouding this process in secrecy, the government only increased the level of public distrust in the flawed military commission system on display in Guantanamo Bay.
The announcement about the new Manual came mere hours before a hearing was slated to begin in the military commission against Omar Khadr, the Canadian accused of war crimes committed while a juvenile. In fact, if the Manual had not been released, it is unclear whether a hearing could have taken place at all. As it was, the hearing had to be delayed by several hours. Not surprisingly, the personnel currently in Guantanamo Bay were scrambling for copies of the Manual. Jon Kotilnek, the NIMJ observer there this week, reported that, "No one in Guantanamo, including the prosecutors or defense attorneys, had seen the Manual."
All of this means that the military commissions, which have been marred by their slow and haphazard development, continue in their same ad-hoc manner. Ever since President Bush first announced the use of military commissions to try Taliban and al-Qaeda operatives, justice has suffered. I am not only referring to the years during which hundreds of alleged terrorists (many of whom have been cleared of wrongdoing by the government) have been held in indefinite detention without charge or trial. The victims of the alleged crimes have also endured years of legal limbo. This country, a nation where the rule of law stands as a beacon to other nations, can and must do better.
The 2010 Manual updates the 2007 Manual to take into account changes made to the system in the Military Commissions Act of 2009. It is clear that certain issues remain unresolved in the new Manual. These defects in the Manual, some of which could have been avoided by allowing public comment by leading experts in the field, will ensure many more years of litigation. One of the saddest facts about military commissions is that, had these cases been handled in civilian court, in a tribunal with long-established and well-respected rules, justice would have been served years ago. Instead, we will not witness final determinations in these cases for years or decades. The Bush administration only attained verdicts in three cases and two of those are currently on appeal. It is possible the courts will throw those verdicts out and invalidate parts of the system or the whole system as the Supreme Court did with the prior military commissions in 2006.
Meanwhile, Khadr's hearing started Wednesday with an issue concerning detainee abuse. One of the main areas of concern frequently highlighted by NIMJ and other groups involves the use of evidence obtained through coercive means. While the Military Commissions Act of 2009 and the new Manual fix some defects found in the previous law in terms of forbidding evidence obtained by torture and cruel, inhuman, and degrading treatment, it is still possible for evidence obtained by other coercive means to be used at trial. The use of "enhanced interrogation" methods on detainees has been, and continues to be, a black-eye on the United States. More troubling for the prosecutors in Guantanamo is that the facts surrounding the interrogations of detainees will continue to plague this process. In the case against Omar Khadr, the military judge must determine if Mr. Khadr's statements should be suppressed. Mr. Khadr's attorneys claim the statements their client made were made under duress after he suffered abuse at the hands of his U.S. captors.
After sixteen months of the Obama administration, it is a sad fact that we have not made appreciable shifts away from Bush's military commission polices. The same failed approach that does not secure justice and only impairs public confidence marches tragically onward.