Military Commission Regulations Available

The new regulations for the military commissions have just been posted on the military commission's website. This long (202 page) document is a comprehensive list of the military commissions' procedures, from the charging process to the rules governing appeals. Of particular interest to Lawfare readers are the following chapters:

• Chapters 8 and 9, regarding counsel for the prosecution and defense (both judge advocates, though defendants have the option of also retaining civilian counsel at their own expense)
• Chapter 12, regarding pretrial agreements (e.g., guilty pleas)
• Chapter 15, regarding grants of immunity
• Chapter 18, regarding classified information
• Chapter 19, regarding public access to commissions proceedings and documents (see below for more)
• Chapters 24–26, regarding appeals and rehearings (chapter 25 discusses the United States Court of Military Commission Review)

Chapter 19 is particularly interesting, as it is the administration's first detailed statement regarding the transparency of the commission proceedings. Below are relevant excerpts:

Section 1: General

Section 949d(c)(2) of the Military Commissions Act of 2009 provides that “[t]he military judge may close to the public all or a portion of the proceedings . . . only upon making a specific finding that such closure is necessary to -- (A) protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods or activities; or (B) ensure the physical safety of individuals.” Consistent with this statutory requirement, the goal of the DoD is to make military commissions accessible to the public to the maximum extent possible, consistent with the interests of national security, the rights of the accused, and other interests protected by law. Making military commissions accessible to the public includes providing access to military commission proceedings, transcripts, pleadings, filings, rulings, orders and other materials used at military commission proceedings, to the extent that these materials are not classified, covered by a protective order, or otherwise protected by law, including the rules and regulations governing military commissions.

Section 2: Applicability

. . . These provisions are applicable to all military commission cases from the swearing of charges until the completion of trial and appellate proceedings or any final disposition of the case. . . .

Section 3: Protected Information

. . . Pursuant to RMC 806, the military judge may issue protective orders limiting the public disclosure of “protected information.” . . . Protected information, for purposes of commission proceedings, is non-classified information subject to a properly issued protective order by an official authorized to issue such an order to prevent public dissemination of such information. . . . The military judge may resolve any dispute raised by the parties or by members of the public, including news media representatives (or their counsel), regarding whether material presented at trial, at a hearing or in a filing, ruling, order or transcript, may be released to the public or is not appropriately designated as “protected.” See Chapter 17-4. These disputes, once properly raised, shall be resolved promptly. Classification decisions by the DoD Security Classification/Declassification Review Team and the original classification authorities of other non-DoD federal departments and agencies are not subject to review by the military judge. . . .

Section 4: Public Release of Transcripts, Filings, Rulings, Orders and Other Materials

. . . Filings and orders that do not require classification security review under Chapter 17-1 shall be posted within one business day of filing with the military commission; . . . All other filings and orders shall be publicly released after the DoD Security Classification/Declassification Review Team and/or the appropriate non-DoD federal department and agency original classification authority confirms to the commission that such filings and orders are in publicly releasable form. The classification review by the DoD Security Classification/Declassification Review Team and/or the appropriate non-DoD federal department and agency original classification authority shall generally take no longer than 15 business days. See Chapter 17-1(b). . . .

Within one business day of a military judge’s decision on a motion not containing classified or protected information, the Chief Clerk shall coordinate with the custodian of the OMC website to ensure the filings inventory on the OMC website is updated by the custodian to reflect the disposition of the motion, and, if written, the Chief Clerk shall provide the unclassified opinion to the custodian for posting on the OMC website. Decisions on motions or filings containing classified or protected information must be reviewed and redacted by the DoD Security Classification/Declassification Review Team and any relevant non-DoD federal department and agency original classification authority as described in 19-4(c)(2) prior to public release.

. . . Except under exceptional circumstances, including equipment failure, the Convening Authority shall ensure the custodian of the OMC website posts a draft, unofficial, unauthenticated transcript of the public portions of the military commission proceedings to the OMC website as soon as practicable after the conclusion of a hearing each day the military commission is in session (whether the hearing is recessed, adjourned, or closed). This draft, unofficial, unauthenticated transcript shall be prepared by a court reporter seated in a room that receives an audio feed of the proceedings that is identical to the audio feed broadcast in the public gallery. This procedure will avoid inclusion in the draft, unofficial, unauthenticated transcript of any inadvertent utterances of classified or protected information inside the courtroom. Further, this draft, unofficial, unauthenticated transcript shall indicate that it is an unofficial, unauthenticated draft that may be further revised, and that it is being released to facilitate the public’s access to military commission proceedings.

Section 5: Exceptional Cases

. . . [T]here may be exceptional circumstances that warrant the release or non-release of unclassified or unprotected information. In these cases, the military judge shall be responsible for determining whether such material shall be released.

Section 6: Spectators at Military Commission Sessions

The proceedings of military commissions shall be public to the maximum extent practicable. In general, all persons granted permission to attend a session, except those who may be required to give evidence, shall be admitted as spectators. . . . The military judge may close proceedings of military commissions to the public only upon making the findings required by M.C.A. § 949d(c) and R.M.C. 806.