[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]               
[Page 39373-39379]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-20]                         


[[Page 39373]]

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Part III





Department of Defense





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Office of the Secretary



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32 CFR Parts 9, 10, 11, et al.



Procedures for Trials by Military Commissions of Certain Non-United 
States Citizens in the War Against Terrorism; Military Commision 
Instructions, et al.; Final Rules


[[Page 39374]]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 9

 
Procedures for Trials by Military Commissions of Certain Non-
United States Citizens in the War Against Terrorism

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule implements policy, assigns responsibilities, and 
prescribes procedures under the United States Constitution, Article II, 
section 2 and Military Order of November 13, 2001, ``Detention, 
Treatment, and Trial of Certain Non-Citizens in the War Against 
Terrorism,'' for trials before military commissions of individuals 
subject to the President's Military Order. These procedures shall be 
implemented and construed so as to ensure that any such individual 
receives a full and fair trial before a military commission, as 
required by the President's Military Order. Unless otherwise directed 
by the Secretary of Defense, and except for supplemental procedures 
established pursuant to the President's Military Order or this part, 
the procedures prescribed herein and no others shall govern such 
trials.

EFFECTIVE DATE: March 21, 2002.

FOR FURTHER INFORMATION CONTACT: Office of Military Commission 
Spokesperson, 703-693-1115.

SUPPLEMENTARY INFORMATION: Although exempt from administrative 
procedures for rulemaking, publication of the final rule in the Federal 
Register is deemed appropriate under 5 U.S.C. 552(a)(1)(C). 
Certifications follow:

Administrative Procedures Act (Sec. 1, Pub. L. 89-544)

    It has been certified that 32 CFR part 9 is as a military function 
of the United States and exempt from administrative procedures for 
rulemaking.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that 32 CFR part 9 pertains to military 
functions other than procurement and import-export licenses and is 
exempt from Office of Management and Budget review under section 3, 
para (d)(2).

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that 32 CFR part 9 does not contain a Federal 
mandate that may result in the expenditure by State, local and tribal 
governments, in aggregate, or by the private sector, of $100 million or 
more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been determined that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 9 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. chapter 44).

Federalism (Executive Order 13132)

    It has been certified that 32 CFR part 9 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the national government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 9

    Military law.

0
Accordingly, 32 CFR part 9 is added to subtitle A, chapter I, 
subchapter B to read as follows:

PART 9--PROCEDURES FOR TRIALS BY MILITARY COMMISSIONS OF CERTAIN 
NON-UNITED STATES CITIZENS IN THE WAR AGAINST TERROISM

Sec.
9.1 Purpose.
9.2 Establishment of Military Commissions.
9.3 Jurisdiction.
9.4 Commission personnel.
9.5 Procedures accorded the accused.
9.6 Conduct of the trial.
9.7 Regulations.
9.8 Authority.
9.9 Protection of State secrets.
9.10 Other.
9.11 Amendment.
9.12 Delegation.

    Authority: 5 U.S.C. 552(1)(a)(1)(C) and (D).


Sec.  9.1  Purpose.

    This part implements policy, assigns responsibilities, and 
prescribes procedures under the United States Constitution, Article II, 
section 2 and Military Order of November 13, 2001, ``Detention, 
Treatment, and Trial of Certain Non-Citizens in the War Against 
Terrorism'' (3 CFR, 2001 comp., p. 918, 66 FR 57833), for trials before 
military commissions of individuals subject to the President's Military 
Order. These procedures shall be implemented and construed so as to 
ensure that any such individual receives a full and fair trial before a 
military commission, as required by the President's Military Order. 
Unless otherwise directed by the Secretary of Defense, and except for 
supplemental procedures established pursuant to the President's 
Military Order or this part, the procedures prescribed herein and no 
others shall govern such trials.


Sec.  9.2  Establishment of Military Commissions.

    In accordance with the President's Military Order, the Secretary of 
Defense or a designee (``Appointing Authority'') may issue orders from 
time to time appointing one or more military commissions to try 
individuals subject to the President's Military Order and appointing 
any other personnel necessary to facilitate such trials.


Sec.  9.3  Jurisdiction.

    (a) Over persons. A military commission appointed under this part 
(``Commission'') shall have jurisdiction over only an individual or 
individuals (``the Accused''):
    (1) Subject to the President's Military Order; and
    (2) Alleged to have committed an offense in a charge that has been 
referred to the Commission by the Appointing Authority.
    (b) Over offenses. Commissions established hereunder shall have 
jurisdiction over violations of the laws of war and all other offenses 
triable by military commission.
    (c) Maintaining integrity of commission proceedings. The Commission 
may exercise jurisdiction over participants in its proceedings as 
necessary to preserve the integrity and order of the proceedings.


Sec.  9.4  Commission personnel.

    (a) Members--(1) Appointment. The Appointing Authority shall 
appoint the members and the alternate member or members of each 
Commission. The alternate member or members shall attend all sessions 
of the Commission, but the absence of an alternate member shall not 
preclude the Commission from conducting proceedings. In case of 
incapacity, resignation, or removal of any member, an alternate member 
shall take the place of that member. Any vacancy among the members or 
alternate members occurring after a trial has begun may be filled by 
the Appointing Authority, but the substance of all prior proceedings 
and evidence taken in that case shall be made known

[[Page 39375]]

to that new member or alternate member before the trial proceeds.
    (2) Number of members. Each Commission shall consist of at least 
three but no more than seven members, the number being determined by 
the Appointing Authority. For each such Commission, there shall also be 
one or two alternate members, the number being determined by the 
Appointing Authority.
    (3) Qualifications. Each member and alternate member shall be a 
commissioned officer of the United States armed forces (``Military 
Officer''), including without limitation reserve personnel on active 
duty, National Guard personnel on active duty in Federal service, and 
retired personnel recalled to active duty. The Appointing Authority 
shall appoint members and alternate members determined to be competent 
to perform the duties involved. The Appointing Authority may remove 
members and alternate members for good cause.
    (4) Presiding Officer. From among the members of each Commission, 
the Appointing Authority shall designate a Presiding Officer to preside 
over the proceedings of that Commission. The Presiding Officer shall be 
a Military Officer who is a judge advocate of any United States armed 
force.
    (5) Duties of the Presiding Officer. (i) The Presiding Officer 
shall admit or exclude evidence at trial in accordance with section 
6(d) of this part. The Presiding Officer shall have authority to close 
proceedings or portions of proceedings in accordance with 
Sec. 9.6(b)(3) of this part and for any other reason necessary for the 
conduct of a full and fair trial.
    (ii) The Presiding Officer shall ensure that the discipline, 
dignity, and decorum of the proceedings are maintained, shall exercise 
control over the proceedings to ensure proper implementation of the 
President's Military Order and this part, and shall have authority to 
act upon any contempt or breach of Commission rules and procedures. Any 
attorney authorized to appear before a Commission who is thereafter 
found not to satisfy the requirements for eligibility or who fails to 
comply with laws, rules, regulations, or other orders applicable to the 
Commission proceedings or any other individual who violates such laws, 
rules, regulations, or orders may be disciplined as the Presiding 
Officer deems appropriate, including but not limited to revocation of 
eligibility to appear before that Commission. The Appointing Authority 
may further revoke that attorney's or any other person's eligibility to 
appear before any other Commission convened under this part.
    (iii) The Presiding Officer shall ensure the expeditious conduct of 
the trial. In no circumstance shall accommodation of counsel be allowed 
to delay proceedings unreasonably.
    (iv) The Presiding Officer shall certify all interlocutory 
questions, the disposition of which would effect a termination of 
proceedings with respect to a charge, for decision by the Appointing 
Authority. The Presiding Officer may certify other interlocutory 
questions to the Appointing Authority as the Presiding Officer deems 
appropriate.
    (b) Prosecution--(1) Office of the Chief Prosecutor. The Chief 
Prosecutor shall be a judge advocate of any United States armed force, 
shall supervise the overall prosecution efforts under the President's 
Military Order, and shall ensure proper management of personnel and 
resources.
    (2) Prosecutors and Assistant Prosecutors. (i) Consistent with any 
supplementary regulations or instructions issued under Sec.  9.7(a), 
the Chief Prosecutor shall detail a Prosecutor and, as appropriate, one 
or more Assistant Prosecutors to prepare charges and conduct the 
prosecution for each case before a Commission (``Prosecution''). 
Prosecutors and Assistant Prosecutors shall be:
    (A) Military Officers who are judge advocates of any United States 
armed force, or
    (B) Special trial counsel of the Department of Justice who may be 
made available by the Attorney General of the United States.
    (ii) The duties of the Prosecution are:
    (A) To prepare charges for approval and referral by the Appointing 
Authority;
    (B) To conduct the prosecution before the Commission of all cases 
referred for trial; and
    (C) To represent the interests of the Prosecution in any review 
process.
    (c) Defense--(1) Office of the Chief Defense Counsel. The Chief 
Defense Counsel shall be a judge advocate of any United States armed 
force, shall supervise the overall defense efforts under the 
President's Military Order, shall ensure proper management of personnel 
and resources, shall preclude conflicts of interest, and shall 
facilitate proper representation of all Accused.
    (2) Detailed Defense Counsel. Consistent with any supplementary 
regulations or instructions issued under Sec.  9.7(a), the Chief 
Defense Counsel shall detail one or more Military Officers who are 
judge advocates of any United States armed force to conduct the defense 
for each case before a Commission (``Detailed Defense Counsel''). The 
duties of the Detailed Defense Counsel are:
    (i) To defend the Accused zealously within the bounds of the law 
without regard to personal opinion as to the guilt of the Accused; and
    (ii) To represent the interests of the Accused in any review 
process as provided by this part.
    (iii) Choice of Counsel. (A) The Accused may select a Military 
Officer who is a judge advocate of any United States armed force to 
replace the Accused's Detailed Defense Counsel, provided that Military 
Officer has been determined to be available in accordance with any 
applicable supplementary regulations or instructions issued under Sec.  
9.7(a). After such selection of a new Detailed Defense Counsel, the 
original Detailed Defense Counsel will be relieved of all duties with 
respect to that case. If requested by the Accused, however, the 
Appointing Authority may allow the original Detailed Defense Counsel to 
continue to assist in representation of the Accused as another Detailed 
Defense Counsel.
    (B) The Accused may also retain the services of a civilian attorney 
of the Accused's own choosing and at no expense to the United States 
Government (``Civilian Defense Counsel''), provided that attorney:
    (1) Is a United States citizen;
    (2) Is admitted to the practice of law in a State, district, 
territory, or possession of the United States, or before a Federal 
court;
    (3) Has not been the subject of any sanction or disciplinary action 
by any court, bar, or other competent governmental authority for 
relevant misconduct;
    (4) Has been determined to be eligible for access to information 
classified at the level SECRET or higher under the authority of and in 
accordance with the procedures prescribed in DoD 5200.2-R \1\; and
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    \1\ Available from www.ditc.mil/whs/directives.
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    (5) Has signed a written agreement to comply with all applicable 
regulations or instructions for counsel, including any rules of court 
for conduct during the course of proceedings. Civilian attorneys may be 
pre-qualified as members of the pool of available attorneys if, at the 
time of application, they meet the relevant criteria, or they may be 
qualified on an ad hoc basis after being requested by an Accused. 
Representation by Civilian Defense Counsel will not relieve Detailed 
Defense Counsel of the duties specified

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in paragraph (c)(2) of this section. The qualification of a Civilian 
Defense Counsel does not guarantee that person's presence at closed 
Commission proceedings or that person's access to any information 
protected under Sec.  9.6(d)(5).
    (4) Continuity of representation. The Accused must be represented 
at all relevant times by Detailed Defense Counsel. Detailed Defense 
Counsel and Civilian Defense Counsel shall be herein referred to 
collectively as ``Defense Counsel.'' The Accused and Defense Counsel 
shall be herein referred to collectively as ``the Defense.''
    (d) Other Personnel. Other personnel, such as court reporters, 
interpreters, security personnel, bailiffs, and clerks may be detailed 
or employed by the Appointing Authority, as necessary.


Sec.  9.5  Procedures accorded the accused.

    The following procedures shall apply with respect to the Accused:
    (a) The Prosecution shall furnish to the Accused, sufficiently in 
advance of trial to prepare a defense, a copy of the charges in English 
and, if appropriate, in another language that the Accused understands.
    (b) The Accused shall be presumed innocent until proven guilty.
    (c) A Commission member shall vote for a finding of Guilty as to an 
offense if and only if that member is convinced beyond a reasonable 
doubt, based on the evidence admitted at trial, that the Accused is 
guilty of the offense.
    (d) At least one Detailed Defense Counsel shall be made available 
to the Accused sufficiently in advance of trial to prepare a defense 
and until any findings and sentence become final in accordance with 
Sec.  9.6(h)(2).
    (e) The Prosecution shall provide the Defense with access to 
evidence the Prosecution intends to introduce at trial and with access 
to evidence known to the Prosecution that tends to exculpate the 
Accused. Such access shall be consistent with Sec.  9.6(d)(5) and 
subject to Sec.  9.9.
    (f) The Accused shall not be required to testify during trial. A 
Commission shall draw no adverse inference from an Accused's decision 
not to testify. This subsection shall not preclude admission of 
evidence of prior statements or conduct of the Accused.
    (g) If the Accused so elects, the Accused may testify at trial on 
the Accused's own behalf and shall then be subject to cross-
examination.
    (h) The Accused may obtain witnesses and documents for the 
Accused's defense, to the extent necessary and reasonably available as 
determined by the Presiding Officer. Such access shall be consistent 
with the requirements of Sec.  9.6(d)(5) and subject to Sec.  9.9. The 
Appointing Authority shall order that such investigative or other 
resources be made available to the Defense as the Appointing Authority 
deems necessary for a full and fair trial.
    (i) The Accused may have Defense Counsel present evidence at trial 
in the Accused's defense and cross-examine each witness presented by 
the Prosecution who appears before the Commission.
    (j) The Prosecution shall ensure that the substance of the charges, 
the proceedings, and any documentary evidence are provided in English 
and, if appropriate, in another language that the Accused understands. 
The Appointing Authority may appoint one or more interpreters to assist 
the Defense, as necessary.
    (k) The Accused may be present at every stage of the trial before 
the Commission, consistent with Sec.  9.6(b)(3), unless the Accused 
engages in disruptive conduct that justifies exclusion by the Presiding 
Officer. Detailed Defense Counsel may not be excluded from any trial 
proceeding or portion thereof.
    (l) Except by order of the Commission for good cause shown, the 
Prosecution shall provide the Defense with access before sentencing 
proceedings to evidence the Prosecution intends to present in such 
proceedings. Such access shall be consistent with Sec.  9.6(d)(5) of 
this part and subject to Sec.  9.9.
    (m) The Accused may make a statement during sentencing proceedings.
    (n) The Accused may have Defense Counsel submit evidence to the 
Commission during sentencing proceedings.
    (o) The Accused shall be afforded a trial open to the public 
(except proceedings closed by the Presiding Officer), consistent with 
Sec.  9.6(b).
    (p) The Accused shall not again be tried by any Commission for a 
charge once a Commission's finding on that charge becomes final in 
accordance with Sec.  9.6(h)(2).


Sec.  9.6  Conduct of the trial.

    (a) Pretrial procedures--(1) Preparation of the Charges. The 
Prosecution shall prepare charges for approval by the Appointing 
Authority, as provided in Sec.  9.4(b)(2)(i).
    (2) Referral to the Commission. The Appointing Authority may 
approve and refer for trial any charge against an individual or 
individuals within the jurisdiction of a Commission in accordance with 
Sec.  9.3(a) and alleging an offense within the jurisdiction of a 
Commission in accordance with Sec.  9.3(b).
    (3) Notification of the accused. The Prosecution shall provide 
copies of the charges approved by the Appointing Authority to the 
Accused and Defense Counsel. The Prosecution also shall submit the 
charges approved by the Appointing Authority to the Presiding Officer 
of the Commission to which they were referred.
    (4) Plea Agreements. The Accused, through Defense Counsel, and the 
Prosecution may submit for approval to the Appointing Authority a plea 
agreement mandating a sentence limitation or any other provision in 
exchange for an agreement to plead guilty, or any other consideration. 
Any agreement to plead guilty must include a written stipulation of 
fact, signed by the Accused, that confirms the guilt of the Accused and 
the voluntary and informed nature of the plea of guilty. If the 
Appointing Authority approves the plea agreement, the Commission will, 
after determining the voluntary and informed nature of the plea 
agreement, admit the plea agreement and stipulation into evidence and 
be bound to adjudge findings and a sentence pursuant to that plea 
agreement.
    (5) Issuance and service of process; obtaining evidence. (i) The 
Commission shall have power to:
    (A) Summon witnesses to attend trial and testify;
    (B) Administer oaths or affirmations to witnesses and other persons 
and to question witnesses;
    (C) Require the production of documents and other evidentiary 
material; and
    (D) Designate special commissioners to take evidence.
    (ii) The Presiding Officer shall exercise these powers on behalf of 
the Commission at the Presiding Officer's own initiative, or at the 
request of the Prosecution or the Defense, as necessary to ensure a 
full and fair trial in accordance with the President's Military Order 
and this part. The Commission shall issue its process in the name of 
the Department of Defense over the signature of the Presiding Officer. 
Such process shall be served as directed by the Presiding Officer in a 
manner calculated to give reasonable notice to persons required to take 
action in accordance with that process.
    (b) Duties of the Commission during trial. The Commission shall:
    (1) Provide a full and fair trial.
    (2) Proceed impartially and expeditiously, strictly confining the 
proceedings to a full and fair trial of the charges, excluding 
irrelevant evidence,

[[Page 39377]]

and preventing any unnecessary interference or delay.
    (3) Hold open proceedings except where otherwise decided by the 
Appointing Authority or the Presiding Officer in accordance with the 
President's Military Order and this part. Grounds for closure include 
the protection of information classified or classifiable under 
Executive Order 12958; information protected by law or rule from 
unauthorized disclosure; the physical safety of participants in 
Commission proceedings, including prospective witnesses; intelligence 
and law enforcement sources, methods, or activities; and other national 
security interests. The Presiding Officer may decide to close all or 
part of a proceeding on the Presiding Officer's own initiative or based 
upon a presentation, including an ex parte, in camera presentation by 
either the Prosecution or the Defense. A decision to close a proceeding 
or portion thereof may include a decision to exclude the Accused, 
Civilian Defense Counsel, or any other person, but Detailed Defense 
Counsel may not be excluded from any trial proceeding or portion 
thereof. Except with the prior authorization of the Presiding Officer 
and subject to section 9 of this part, Defense Counsel may not disclose 
any information presented during a closed session to individuals 
excluded from such proceeding or part thereof. Open proceedings may 
include, at the discretion of the Appointing Authority, attendance by 
the public and accredited press, and public release of transcripts at 
the appropriate time. Proceedings should be open to the maximum extent 
practicable. Photography, video, or audio broadcasting, or recording of 
or at Commission proceedings shall be prohibited, except photography, 
video, and audio recording by the Commission pursuant to the direction 
of the Presiding Officer as necessary for preservation of the record of 
trial.
    (4) Hold each session at such time and place as may be directed by 
the Appointing Authority. Members of the Commission may meet in closed 
conference at any time.
    (5) As soon as practicable at the conclusion of a trial, transmit 
an authenticated copy of the record of trial to the Appointing 
Authority.
    (c) Oaths. (1) Members of a Commission, all Prosecutors, all 
Defense Counsel, all court reporters, all security personnel, and all 
interpreters shall take an oath to perform their duties faithfully.
    (2) Each witness appearing before a Commission shall be examined 
under oath, as provided in paragraph (d)(2)(ii) of this section.
    (3) An oath includes an affirmation. Any formulation that appeals 
to the conscience of the person to whom the oath is administered and 
that binds that person to speak the truth, or, in the case of one other 
than a witness, properly to perform certain duties, is sufficient.
    (d) Evidence--(1) Admissibility. Evidence shall be admitted if, in 
the opinion of the Presiding Officer (or instead, if any other member 
of the Commission so requests at the time the Presiding Officer renders 
that opinion, the opinion of the Commission rendered at that time by a 
majority of the Commission), the evidence would have probative value to 
a reasonable person.
    (2) Witnesses--(i) Production of witnesses. The Prosecution or the 
Defense may request that the Commission hear the testimony of any 
person, and such testimony shall be received if found to be admissible 
and not cumulative. The Commission may also summon and hear witnesses 
on its own initiative. The Commission may permit the testimony of 
witnesses by telephone, audiovisual means, or other means; however, the 
Commission shall consider the ability to test the veracity of that 
testimony in evaluating the weight to be given to the testimony of the 
witness.
    (ii) Testimony. Testimony of witnesses shall be given under oath or 
affirmation. The Commission may still hear a witness who refuses to 
swear an oath or make a solemn undertaking; however, the Commission 
shall consider the refusal to swear an oath or give an affirmation in 
evaluating the weight to be given to the testimony of the witness.
    (iii) Examination of witnesses. A witness who testifies before the 
Commission is subject to both direct examination and cross-examination. 
The Presiding Officer shall maintain order in the proceedings and shall 
not permit badgering of witnesses or questions that are not material to 
the issues before the Commission. Members of the Commission may 
question witnesses at any time.
    (iv) Protection of witnesses. The Presiding Officer shall consider 
the safety of witnesses and others, as well as the safeguarding of 
Protected Information as defined in paragraph (d)(5)(i) of this 
section, in determining the appropriate methods of receiving testimony 
and evidence. The Presiding Officer may hear any presentation by the 
Prosecution or the Defense, including an ex parte, in camera 
presentation, regarding the safety of potential witnesses before 
determining the ways in which witnesses and evidence will be protected. 
The Presiding Officer may authorize any methods appropriate for the 
protection of witnesses and evidence. Such methods may include, but are 
not limited to: testimony by telephone, audiovisual means, or other 
electronic means; closure of the proceedings; introduction of prepared 
declassified summaries of evidence; and the use of pseudonyms.
    (3) Other evidence. Subject to the requirements of paragraph (d)(1) 
of this section concerning admissibility, the Commission may consider 
any other evidence including, but not limited to, testimony from prior 
trials and proceedings, sworn or unsworn written statements, physical 
evidence, or scientific or other reports.
    (4) Notice. The Commission may, after affording the Prosecution and 
the Defense an opportunity to be heard, take conclusive notice of facts 
that are not subject to reasonable dispute either because they are 
generally known or are capable of determination by resort to sources 
that cannot reasonably be contested.
    (5) Protection of Information--(i) Protective Order. The Presiding 
Officer may issue protective orders as necessary to carry out the 
Military Order and this part, including to safeguard ``Protected 
Information,'' which includes:
    (A) Information classified or classifiable pursuant to Executive 
Order 12958;
    (B) Information protected by law or rule from unauthorized 
disclosure;
    (C) Information the disclosure of which may endanger the physical 
safety of participants in Commission proceedings, including prospective 
witnesses;
    (D) Information concerning intelligence and law enforcement 
sources, methods, or activities; or
    (E) Information concerning other national security interests. As 
soon as practicable, counsel for either side will notify the Presiding 
Officer of any intent to offer evidence involving Protected 
Information.
    (ii) Limited disclosure. The Presiding Officer, upon motion of the 
Prosecution or sua sponte, shall, as necessary to protect the interests 
of the United States and consistent with Sec.  9.9, direct:
    (A) The deletion of specified items of Protected Information from 
documents to be made available to the Accused, Detailed Defense 
Counsel, or Civilian Defense Counsel;
    (B) The substitution of a portion or summary of the information for 
such Protected Information; or
    (C) The substitution of a statement of the relevant facts that the 
Protected

[[Page 39378]]

Information would tend to prove. The Prosecution's motion and any 
materials submitted in support thereof or in response thereto shall, 
upon request of the Prosecution, be considered by the Presiding Officer 
ex parte, in camera, but no Protected Information shall be admitted 
into evidence for consideration by the Commission if not presented to 
Detailed Defense Counsel.
    (iii) Closure of proceedings. The Presiding Officer may direct the 
closure of proceedings in accordance with paragraph (b)(3) of this 
section.
    (iv) Protected information as part of the record of trial. All 
exhibits admitted as evidence but containing Protected Information 
shall be sealed and annexed to the record of trial. Additionally, any 
Protected Information not admitted as evidence but reviewed in camera 
and subsequently withheld from the Defense over Defense objection 
shall, with the associated motions and responses and any materials 
submitted in support thereof, be sealed and annexed to the record of 
trial as additional exhibits. Such sealed material shall be made 
available to reviewing authorities in closed proceedings.
    (e) Proceedings during trial. The proceedings at each trial will be 
conducted substantially as follows, unless modified by the Presiding 
Officer to suit the particular circumstances:
    (1) Each charge will be read, or its substance communicated, in the 
presence of the Accused and the Commission.
    (2) The Presiding Officer shall ask each Accused whether the 
Accused pleads ``Guilty'' or ``Not Guilty.'' Should the Accused refuse 
to enter a plea, the Presiding Officer shall enter a plea of ``Not 
Guilty'' on the Accused's behalf. If the plea to an offense is 
``Guilty,'' the Presiding Officer shall enter a finding of Guilty on 
that offense after conducting sufficient inquiry to form an opinion 
that the plea is voluntary and informed. Any plea of Guilty that is not 
determined to be voluntary and informed shall be changed to a plea of 
Not Guilty. Plea proceedings shall then continue as to the remaining 
charges. If a plea of ``Guilty'' is made on all charges, the Commission 
shall proceed to sentencing proceedings; if not, the Commission shall 
proceed to trial as to the charges for which a ``Not Guilty'' plea has 
been entered.
    (3) The Prosecution shall make its opening statement.
    (4) The witnesses and other evidence for the Prosecution shall be 
heard or received.
    (5) The Defense may make an opening statement after the 
Prosecution's opening statement or prior to presenting its case.
    (6) The witnesses and other evidence for the Defense shall be heard 
or received.
    (7) Thereafter, the Prosecution and the Defense may introduce 
evidence in rebuttal and surrebuttal.
    (8) The Prosecution shall present argument to the Commission. 
Defense Counsel shall be permitted to present argument in response, and 
then the Prosecution may reply in rebuttal.
    (9) After the members of the Commission deliberate and vote on 
findings in closed conference, the Presiding Officer shall announce the 
Commission's findings in the presence of the Commission, the 
Prosecution, the Accused, and Defense Counsel. The individual votes of 
the members of the Commission shall not be disclosed.
    (10) In the event a finding of Guilty is entered for an offense, 
the Prosecution and the Defense may present information to aid the 
Commission in determining an appropriate sentence. The Accused may 
testify and shall be subject to cross-examination regarding any such 
testimony.
    (11) The Prosecution and, thereafter, the Defense shall present 
argument to the Commission regarding sentencing.
    (12) After the members of the Commission deliberate and vote on a 
sentence in closed conference, the Presiding Officer shall announce the 
Commission's sentence in the presence of the Commission, the 
Prosecution, the Accused, and Defense Counsel. The individual votes of 
the members of the Commission shall not be disclosed.
    (f) Voting. Members of the Commission shall deliberate and vote in 
closed conference. A Commission member shall vote for a finding of 
Guilty as to an offense if and only if that member is convinced beyond 
a reasonable doubt, based on the evidence admitted at trial, that the 
Accused is guilty of the offense. An affirmative vote of two-thirds of 
the members is required for a finding of Guilty. When appropriate, the 
Commission may adjust a charged offense by exceptions and substitutions 
of language that do not substantially change the nature of the offense 
or increase its seriousness, or it may vote to convict of a lesser-
included offense. An affirmative vote of two-thirds of the members is 
required to determine a sentence, except that a sentence of death 
requires a unanimous, affirmative vote of all of the members. Votes on 
findings and sentences shall be taken by secret, written ballot.
    (g) Sentence. Upon conviction of an Accused, the Commission shall 
impose a sentence that is appropriate to the offense or offenses for 
which there was a finding of Guilty, which sentence may include death, 
imprisonment for life or for any lesser term, payment of a fine or 
restitution, or such other lawful punishment or condition of punishment 
as the Commission shall determine to be proper. Only a Commission of 
seven members may sentence an Accused to death. A Commission may 
(subject to rights of third parties) order confiscation of any property 
of a convicted Accused, deprive that Accused of any stolen property, or 
order the delivery of such property to the United States for 
disposition.
    (h) Post-trial procedures--(1) Record of Trial. Each Commission 
shall make a verbatim transcript of its proceedings, apart from all 
Commission deliberations, and preserve all evidence admitted in the 
trial (including any sentencing proceedings) of each case brought 
before it, which shall constitute the record of trial. The court 
reporter shall prepare the official record of trial and submit it to 
the Presiding Officer for authentication upon completion. The Presiding 
Officer shall transmit the authenticated record of trial to the 
Appointing Authority. If the Secretary of Defense is serving as the 
Appointing Authority, the record shall be transmitted to the Review 
Panel constituted under paragraph (h)(4) of this section.
    (2) Finality of findings and sentence. A Commission finding as to a 
charge and any sentence of a Commission becomes final when the 
President or, if designated by the President, the Secretary of Defense 
makes a final decision thereon pursuant to section 4(c)(8) of the 
President's Military Order and in accordance with paragraph (h)(6) of 
this section. An authenticated finding of Not Guilty as to a charge 
shall not be changed to a finding of Guilty. Any sentence made final by 
action of the President or the Secretary of Defense shall be carried 
out promptly. Adjudged confinement shall begin immediately following 
the trial.
    (3) Review by the Appointing Authority. If the Secretary of Defense 
is not the Appointing Authority, the Appointing Authority shall 
promptly perform an administrative review of the record of trial. If 
satisfied that the proceedings of the Commission were administratively 
complete, the Appointing Authority shall transmit the record of trial 
to the Review Panel constituted under paragraph (h)(4) of this section. 
If not so satisfied, the Appointing Authority shall return the case for 
any necessary supplementary proceedings.

[[Page 39379]]

    (4) Review Panel. The Secretary of Defense shall designate a Review 
Panel consisting of three Military Officers, which may include 
civilians commissioned pursuant to section 603 of title 10, United 
States Code. At least one member of each Review Panel shall have 
experience as a judge. The Review Panel shall review the record of 
trial and, in its discretion, any written submissions from the 
Prosecution and the Defense and shall deliberate in closed conference. 
The Review Panel shall disregard any variance from procedures specified 
in this part or elsewhere that would not materially have affected the 
outcome of the trial before the Commission. Within thirty days after 
receipt of the record of trial, the Review Panel shall either:
    (i) Forward the case to the Secretary of Defense with a 
recommendation as to disposition, or
    (ii) Return the case to the Appointing Authority for further 
proceedings, provided that a majority of the Review Panel has formed a 
definite and firm conviction that a material error of law occurred.
    (5) Review by the Secretary of Defense. The Secretary of Defense 
shall review the record of trial and the recommendation of the Review 
Panel and either return the case for further proceedings or, unless 
making the final decision pursuant to a Presidential designation under 
section 4(c)(8) of the President's Military Order, forward it to the 
President with a recommendation as to disposition.
    (6) Final decision. After review by the Secretary of Defense, the 
record of trial and all recommendations will be forwarded to the 
President for review and final decision (unless the President has 
designated the Secretary of Defense to perform this function). If the 
President has so designated the Secretary of Defense, the Secretary may 
approve or disapprove findings or change a finding of Guilty to a 
finding of Guilty to a lesser-included offense, or mitigate, commute, 
defer, or suspend the sentence imposed or any portion thereof. If the 
Secretary of Defense is authorized to render the final decision, the 
review of the Secretary of Defense under paragraph (h)(5) of this 
section shall constitute the final decision.


Sec.  9.7  Regulations.

    (a) Supplementary regulations and instructions. The Appointing 
Authority shall, subject to approval of the General Counsel of the 
Department of Defense if the Appointing Authority is not the Secretary 
of Defense, publish such further regulations consistent with the 
President's Military Order and this part as are necessary or 
appropriate for the conduct of proceedings by Commissions under the 
President's Military Order. The General Counsel shall issue such 
instructions consistent with the President's Military Order and this 
part as the General Counsel deems necessary to facilitate the conduct 
of proceedings by such Commissions, including those governing the 
establishment of Commission-related offices and performance evaluation 
and reporting relationships.
    (b) Construction. In the event of any inconsistency between the 
President's Military Order and this part, including any supplementary 
regulations or instructions issued under paragraph (a) of this section, 
the provisions of the President's Military Order shall govern. In the 
event of any inconsistency between this part and any regulations or 
instructions issued under paragraph (a) of this section, the provisions 
of this part shall govern.


Sec.  9.8  Authority.

    Nothing in this part shall be construed to limit in any way the 
authority of the President as Commander in Chief of the Armed Forces or 
the power of the President to grant reprieves and pardons. Nothing in 
this part shall affect the authority to constitute military commissions 
for a purpose not governed by the President's Military Order.


Sec.  9.9  Protection of State secrets.

    Nothing in this part shall be construed to authorize disclosure of 
state secrets to any person not authorized to receive them.


Sec.  9.10  Other.

    This part is not intended to and does not create any right, 
benefit, or privilege, substantive or procedural, enforceable by any 
party, against the United States, its departments, agencies, or other 
entities, its officers or employees, or any other person. No provision 
in this part shall be construed to be a requirement of the United 
States Constitution. Section and subsection captions in this document 
are for convenience only and shall not be used in construing the 
requirements of this part. Failure to meet a time period specified in 
this part, or supplementary regulations or instructions issued under 
Sec.  9.7(a), shall not create a right to relief for the Accused or any 
other person. DoD Directive 5025.1 \2\ shall not apply to this part or 
any supplementary regulations or instructions issued under Sec.  
9.7(a).
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    \2\ Available from www.ditc.mil/whs/directives.
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Sec.  9.11  Amendment.

    The Secretary of Defense may amend this part from time to time.


Sec.  9.12  Delegation.

    The authority of the Secretary of Defense to make requests for 
assistance under section 5 of the President's Military Order is 
delegated to the General Counsel of the Department of Defense. The 
Executive Secretary of the Department of Defense shall provide such 
assistance to the General Counsel as the General Counsel determines 
necessary for this purpose.

    Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16377 Filed 6-26-03; 12:40 pm]

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