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DOD releases regulations for military commission procedures

The US Department of Defense [official website] on Monday released a guidebook [text, PDF] detailing the procedures to be followed in military commissions [JURIST news archive]. Changes to procedures introduced by the regulations include a provision that allows the judge in a military trial to approve the costs of a "learned counsel" in cases involving the possibility of capital punishment. Non-party observers, such as the media, will also be able to "challenge the applicability of a protective order to the military judge's designation of information as protected information [by] submitt[ing the challenge] in writing to the Chief Clerk with a copy to the attorneys of record." The new regulations were signed on Sunday by Deputy Secretary of Defense Ashton Carter [official profile]. In a forward to the regulations, Carter writes that the guidebook:

[P]rovides guidance for practitioners in military commissions and ... [t]o the extent that the guidance here differs from that which applies in courts-martial, that difference is necessitated by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need, consistent with Military Commissions Act of 2009.
The guidebook also include a sample prosecution in which a captive is charged with murder and pillage. The regulations replace the Regulation for Trial by Military Commissions [text, PDF] issued in April 2007.

The regulations were announced just days before the military commission at Guantanamo Bay [JURIST news archive] is set to arraign Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive]. Last week, US prosecutors argued [JURIST report] that even if suspected USS Cole [JURIST news archive] bomber Al-Nashiri is acquitted by a military tribunal, the US government has the authority to detain him in Guantanamo Bay until the end of the hostilities in the US war on terror [JURIST news archive]. Navy Lt. Cmdr. Stephen Reyes, Al-Nashiri's defense attorney, argued that Al-Nashiri's inevitable indefinite detention renders his trial merely a show that lacks meaningful reprieve, and that jurors have the right to be informed that they are simply playing a role in a pre-determined political decision. Last month, al-Nashiri filed a motion to challenge [JURIST reports] the method in which Guantanamo Bay military tribunals are conducted.

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