Department of Defense Rules for Trials by Military Commissions

1 July 2003
Source: http://www.access.gpo.gov/su_docs/aces/fr-cont.html

DEPARTMENT OF DEFENSE RULES

War against terrorism:

1. Trials by military commissions of certain non-United States citizens; procedures

2. Military commission instructions

3. Crimes and elements of trials by military commission

4. Chief prosecutor, prosecutors, and assistant prosecutors; responsibilities

5. Chief defense counsel, detailed defense counsel, and civilian defense counsel; responsibilities

6. Civilian defense counsel; qualification

7. Military commission personnel; reporting relationships

8. Sentencing

9. Admistrative procedures

Trials by military commissions of certain non-United States citizens; procedures
[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,

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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).
---------------------------------------------------------------------------

\2\ Available from www.ditc.mil/whs/directives.
---------------------------------------------------------------------------

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]

BILLING CODE 5001-08-P

Military commission instructions

[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39379-39381]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-21]

-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 10

Military Commission Instructions

AGENCY: Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule establishes policies for the issuance and
interpretation of Military Commission Instructions promulgated pursuant
to regulations on Procedures for Trials by Military Commission of
Certain Non-United States Citizens in the War Against Terrorism, and
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism.

EFFECTIVE DATE: April 30, 2003.

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

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

It has been certified that 32 CFR part 10 is as a military function
of the United States and exempt from administrative procedures for rule
making.

[[Page 39380]]

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

It has been certified that 32 CFR part 10 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 10 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)

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

It has been certified that 32 CFR part 10 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 10 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 10

Military law.

0
Accordingly, 32 CFR part 10 is added to Subtitle A, Chapter I,
Subchapter B to read as follows:

PART 10--MILITARY COMMISION INSTRUCTIONS

Sec.
10.1 Purpose.
10.2 Authority.
10.3 Applicability.
10.4 Policies and procedures.
10.5 Construction.
10.6 Non-creation of right.
10.7 Reservation of authority.
10.8 Amendment.

Authority: 10 U.S.C. 113Id) and 140(b).

Sec. 10.1 Purpose.

This part establishes policies for the issuance and interpretation
of Military Commission Instructions promulgated pursuant to 32 CFR part
9, 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).

Sec. 10.2 Authority.

This part is issued pursuant to 32 CFR 9.7(a) and in accordance
with 10 U.S.C. 113(d) and 140(b).

Sec. 10.3 Applicability.

This part, and, unless stated otherwise, all other Military
Commission Instructions apply throughout the Department of Defense,
including to the Office of the Secretary of Defense, the Military
Departments, the Chairman and Vice Chairman of the Joint Chiefs of
Staff and the Joint Staff, the Combatant Commands, the Office of the
Inspector General of the Department of Defense, the Defense Agencies,
the Department of Defense Field Activities, and all other
organizational entities within the Department of Defense, to any
special trial counsel of the Department of Justice who may be made
available by the Attorney General of the United States to serve as a
prosecutor in trials before military commissions pursuant to 32 CFR
9.4(b)(2), to any civilian attorney who seeks qualification as a member
of the pool of qualified Civilian Defense Counsel authorized in 32 CFR
9.4(c)(3)(ii), and to any attorney who has been qualified as a member
of that pool.

Sec. 10.4 Policies and procedures.

(a) Promulgation. Military Commission Instructions will be issued
by the General Counsel of the Department of Defense (hereinafter
General Counsel). Each Instruction will issue over the signature of the
General Counsel and, unless otherwise specified therein, shall take
effect upon the signature of the General Counsel. Instructions will be
numbered in sequence.
(b) Professional responsibility. Compliance with these Instructions
shall be deemed a professional responsibility obligation for the
practice of law within the Department of Defense.
(c) Compliance breaches. Failure to adhere to these Instructions or
any other failure to comply with any rule, regulation, or Instruction
applicable to trials by military commission convened pursuant to 32 CFR
part 9, and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' may be subject to appropriate action by the Appointing
Authority, the General Counsel of the Department of Defense, or the
Presiding Officer of a military commission. Such action may include
permanently barring an individual from participating in any military
commission proceeding convened pursuant to 32 CFR part 9, and Military
Order of November 13, 2001, ``Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism,'' punitive measures
imposed under 10 U.S.C. 898, and any other lawful sanction.

Sec. 10.5 Construction.

Military Commission Instructions shall be construed in a manner
consistent with 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.'' Nothing in these Military Commission Instructions
applies with respect to the trial of crimes by military commissions
convened under other authority. In the event of an inconsistency, the
provisions of 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' shall govern as provided in Section 7(B) of
Military Order of November 13, 2001, ``Detention, Treatment, and Trial
of Certain Non-Citizens in the War Against Terrorism.'' Pronouns
referring to the male gender shall be construed as applying to both
male and female.

Sec. 10.6 Non-creation of right.

Neither this part nor any Military Commission Instruction issued
hereafter, is intended to and does not create any right, benefit,
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. Alleged noncompliance with
an Instruction does not, of itself, constitute error, give rise to
judicial review, or establish a right to relief for the Accused or any
other person.

Sec. 10.7 Reservation of authority.

Neither this part nor any Military Commission Instruction issued
hereafter shall be construed to limit, impair, or otherwise affect any
authority granted by the Constitution or laws of the United States or
Department of Defense regulation or directive.

[[Page 39381]]

Sec. 10.8 Amendment.

The General Counsel may issue, supplement, amend, or revoke any
Military Commission Instruction at any time.

Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16378 Filed 6-26-03; 12:40 pm]

BILLING CODE 5001-08-P

Crimes and elements of trials by military commission

[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39381-39387]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-22]

-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 11

Crimes and Elements of Trials by Military Commission

AGENCY: Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule provides guidance with respect to crimes that may be
tried by military commissions established pursuant to regulations on,
Procedures for Trials by Military Commission of Certain Non-United
States Citizens in the War Against Terrorism, and Military Order of
November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' and enumerates the elements of
those crimes.

EFFECTIVE DATE: April 30, 2003.

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

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

It has been certified that 32 CFR part 11 is as a military function
of the United States and exempt from administrative procedures for rule
making.

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

It has been certified that 32 CFR part 11 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 11 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)

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

It has been certified that 32 CFR part 11 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 11 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 11

Military law.

0
Accordingly, 32 CFR part 11 is added to subtitle A, chapter I,
subchapter B to read as follows:

PART 11--CRIMES AND ELEMENTS FOR TRIALS BY MILITARY COMMISSION

Sec.
11.1 Purpose.
11.2 Authority.
11.3 General.
11.4 Applicable principles of law.
11.5 Definitions.
11.6 Crimes and elements.

Authority: 10 U.S.C. 821.

Sec. 11.1 Purpose.

This part provides guidance with respect to crimes that may be
tried by military commissions established pursuant to 32 CFR part 9,
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) and enumerates the elements of those
crimes.

Sec. 11.2 Authority.

This part is issued pursuant to 32 CFR 9.7(a) and in accordance
with Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism,'' (66 FR
57833) and 10 U.S.C. 113(d), 140(b), and 821. The provisions of 32 CFR
part 10 are applicable to this part.

Sec. 11.3 General.

(a) Background. The following crimes and elements thereof are
intended for use by military commissions established pursuant to 32 CFR
part 9, and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' the jurisdiction of which extends to offenses or offenders
that by statute or the law of armed conflict may be tried by military
commission as limited by Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.'' No offense is cognizable in a trial by military
commission if that offense did not exist prior to the conduct in
question. These crimes and elements derive from the law of armed
conflict, a body of law that is sometimes referred to as the law of
war. They constitute violations of the law of armed conflict or
offenses that, consistent with that body of law, are triable by
military commission. Because this document is declarative of existing
law, it does not preclude trial for crimes that occurred prior to its
effective date.
(b) Effect of other laws. No conclusion regarding the applicability
or persuasive authority of other bodies of law should be drawn solely
from the presence, absence, or similarity of particular language in
this part as compared to other articulations of law.
(c) Non-exclusivity. This part does not contain a comprehensive
list of crimes triable by military commission. It is intended to be
illustrative of applicable principles of the common law of war but not
to provide an exclusive enumeration of the punishable acts recognized
as such by that law. The absence of a particular offense from the
corpus of those enumerated herein does not preclude trial for that
offense.

Sec. 11.4. Applicable principles of law.

(a) General intent. All actions taken by the Accused that are
necessary for completion of a crime must be performed with general
intent. This intent is not listed as a separate element. When the mens
rea required for culpability to attach involves an intent that a
particular consequence occur, or some other specific intent, an intent
element is included. The necessary relationship between such intent
element and the conduct constituting the actus reus is not articulated
for each

[[Page 39382]]

set of elements, but is presumed; a nexus between the two is necessary.
(b) The element of wrongfulness and defenses. Conduct must be
wrongful to constitute one of the offenses enumerated herein or any
other offense triable by military commission. Conduct is wrongful if it
is done without justification or excuse cognizable under applicable
law. The element of wrongfulness (or the absence of lawful
justification or excuse), which may be required under the customary law
of armed conflict, is not repeated in the elements of crimes in Sec.
11.6. Conduct satisfying the elements found herein shall be inferred to
be wrongful in the absence of evidence to the contrary. Similarly, this
part does not enunciate defenses that may apply for specific offenses,
though an Accused is entitled to raise any defense available under the
law of armed conflict. Defenses potentially available to an Accused
under the law of armed conflict, such as self-defense, mistake of fact,
and duress, may be applicable to certain offenses subject to trial by
military commission. In the absence of evidence to the contrary,
defenses in individual cases shall be presumed not to apply. The burden
of going forward with evidence of lawful justification or excuse or any
applicable defense shall be upon the Accused. With respect to the issue
of combatant immunity raised by the specific enumeration of an element
requiring the absence thereof, the prosecution must affirmatively prove
that element regardless of whether the issue is raised by the defense.
Once an applicable defense or an issue of lawful justification or
lawful excuse is fairly raised by the evidence presented, except for
the defense of lack of mental responsibility, the burden is on the
prosecution to establish beyond a reasonable doubt that the conduct was
wrongful or that the defense does not apply. With respect to the
defense of lack of mental responsibility, the Accused has the burden of
proving by clear and convincing evidence that, as a result of a severe
mental disease or defect, the Accused was unable to appreciate the
nature and quality of the wrongfulness of the Accused's acts. As
provided in 32 CFR 9.5(c), the prosecution bears the burden of
establishing the Accused's guilt beyond a reasonable doubt in all cases
tried by a military commission. Each element of an offense enumerated
herein must be proven beyond a reasonable doubt.
(c) Statute of limitations. Violations of the laws of war listed
herein are not subject to any statute of limitations.

Sec. 11.5. Definitions.

(a) Combatant immunity. Under the law of armed conflict, only a
lawful combatant enjoys ``combatant immunity'' or ``belligerent
privilege'' for the lawful conduct of hostilities during armed
conflict.
(b) Enemy. ``Enemy'' includes any entity with which the United
States or allied forces may be engaged in armed conflict, or which is
preparing to attack the United States. It is not limited to foreign
nations, or foreign military organizations or members thereof.
``Enemy'' specifically includes any organization of terrorists with
international reach.
(c) In the context of and was associated with armed conflict.
Elements containing this language require a nexus between the conduct
and armed hostilities. Such nexus could involve, but is not limited to,
time, location, or purpose of the conduct in relation to the armed
hostilities. The existence of such factors, however, may not satisfy
the necessary nexus (e.g., murder committed between members of the same
armed force for reasons of personal gain unrelated to the conflict,
even if temporally and geographically associated with armed conflict,
is not ``in the context of'' the armed conflict). The focus of this
element is not the nature or characterization of the conflict, but the
nexus to it. This element does not require a declaration of war,
ongoing mutual hostilities, or confrontation involving a regular
national armed force. A single hostile act or attempted act may provide
sufficient basis for the nexus so long as its magnitude or severity
rises to the level of an ``armed attack'' or an ``act of war,'' or the
number, power, stated intent or organization of the force with which
the actor is associated is such that the act or attempted act is
tantamount to an attack by an armed force. Similarly, conduct
undertaken or organized with knowledge or intent that it initiate or
contribute to such hostile act or hostilities would satisfy the nexus
requirement.
(d) Military Objective. ``Military objectives'' are those potential
targets during an armed conflict which, by their nature, location,
purpose, or use, effectively contribute to the opposing force's war-
fighting or war-sustaining capability and whose total or partial
destruction, capture, or neutralization would constitute a military
advantage to the attacker under the circumstances at the time of the
attack.
(e) Object of the attack. ``Object of the attack'' refers to the
person, place, or thing intentionally targeted. In this regard, the
term includes neither collateral damage nor incidental injury or death.
(f) Protected property. ``Protected property'' refers to property
specifically protected by the law of armed conflict such as buildings
dedicated to religion, education, art, science or charitable purposes,
historic monuments, hospitals, or places where the sick and wounded are
collected, provided they are not being used for military purposes or
are not otherwise military objectives. Such property would include
objects properly identified by one of the distinctive emblems of the
Geneva Conventions but does not include all civilian property.
(g) Protected under the law of war. The person or object in
question is expressly ``protected'' under one or more of the Geneva
Conventions of 1949 or, to the extent applicable, customary
international law. The term does not refer to all who enjoy some form
of protection as a consequence of compliance with international law,
but those who are expressly designated as such by the applicable law of
armed conflict. For example, persons who either are hors de combat or
medical or religious personnel taking no active part in hostilities are
expressly protected, but other civilians may not be.
(h) Should have known. The facts and circumstances were such that a
reasonable person in the Accused's position would have had the relevant
knowledge or awareness.

Sec. 11.6. Crimes and elements.

(a) Substantive offenses--war crimes. The following enumerated
offenses, if applicable, should be charged in separate counts. Elements
are drafted to reflect conduct of the perpetrator. Each element need
not be specifically charged.
(1) Willful killing of protected persons--(i) Elements. (A) The
accused killed one or more persons;
(B) The accused intended to kill such person or persons;
(C) Such person or persons were protected under the law of war;
(D) The accused knew or should have known of the factual
circumstances that established that protected status; and
(E) The killing took place in the context of and was associated
with armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(2) Attacking civilians.--(i) Elements. (A) The accused engaged in
an attack;
(B) The object of the attack was a civilian population as such or

[[Page 39383]]

individual civilians not taking direct or active part in hostilities;
(C) The accused intended the civilian population as such or
individual civilians not taking direct or active part in hostilities to
be an object of the attack; and
(D) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(3) Attacking civilian objects.--(i) Elements. (A) The accused
engaged in an attack;
(B) The object of the attack was civilian property, that is,
property that was not a military objective;
(C) The accused intended such property to be an object of the
attack;
(D) The accused knew or should have known that such property was
not a military objective; and
(E) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(4) Attacking Protected Property--(i) Elements. (A) The accused
engaged in an attack;
(B) The object of the attack was protected property;
(C) The accused intended such property to be an object of the
attack;
(D) The accused knew or should have known of the factual
circumstances that established that protected status; and
(E) The attack took place in the context of and was associated with
armed conflict.
(ii) Comments. The intent required for this offense precludes its
applicability with regard to collateral damage or injury incident to a
lawful attack.
(5) Pillaging--(i) Elements. (A) The accused appropriated or seized
certain property;
(B) The accused intended to appropriate or seize such property for
private or personal use;
(C) The appropriation or seizure was without the consent of the
owner of the property or other person with authority to permit such
appropriation or seizure; and
(D) The appropriation or seizure took place in the context of and
was associated with armed conflict.
(ii) Comments. As indicated by the use of the term ``private or
personal use,'' legitimate captures or appropriations, or seizures
justified by military necessity, cannot constitute the crime of
pillaging.
(6) Denying quarter--(i) Elements. (A) The accused declared,
ordered, or otherwise indicated that there shall be no survivors or
surrender accepted;
(B) The accused thereby intended to threaten an adversary or to
conduct hostilities such that there would be no survivors or surrender
accepted;
(C) It was foreseeable that circumstances would be such that a
practicable and reasonable ability to accept surrender would exist;
(D) The accused was in a position of effective command or control
over the subordinate forces to which the declaration or order was
directed; and
(E) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. Paragraph (a)(6)(i)(C) of this section precludes
this offense from being interpreted as limiting the application of
lawful means or methods of warfare against enemy combatants. For
example, a remotely delivered attack cannot give rise to this offense.
(7) Taking Hostages--(i) Elements. (A) The accused seized,
detained, or otherwise held hostage one or more persons;
(B) The accused threatened to kill, injure, or continue to detain
such person or persons;
(C) The accused intended to compel a State, an international
organization, a natural or legal person, or a group of persons to act
or refrain from acting as an explicit or implicit condition for the
safety or release of such person or persons; and
(D) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. Consistent with Sec. 11.4(b), this offense cannot
be committed by lawfully detaining enemy combatants or other
individuals as authorized by the law of armed conflict.
(8) Employing poison or analogous weapons--(i) Elements. (A) The
accused employed a substance or a weapon that releases a substance as a
result of its employment;
(B) The substance was such that exposure thereto causes death or
serious damage to health in the ordinary course of events, through its
asphyxiating, poisonous, or bacteriological properties;
(C) The accused employed the substance or weapon with the intent of
utilizing such asphyxiating, poisonous, or bacteriological properties
as a method of warfare;
(D) The accused knew or should have known of the nature of the
substance or weapon; and
(E) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. (A) The ``death or serious damage to health''
required by paragraph (a)(8)(i)(B) of this section must be a direct
result of the substance's effect or effects on the human body (e.g.,
asphyxiation caused by the depletion of atmospheric oxygen secondary to
a chemical or other reaction would not give rise to this offense).
(B) The clause ``serious damage to health'' does not include
temporary incapacitation or sensory irritation.
(C) The use of the ``substance or weapon'' at issue must be
proscribed under the law of armed conflict. It may include chemical or
biological agents.
(D) The specific intent element for this offense precludes
liability for mere knowledge of potential collateral consequences
(e.g., mere knowledge of a secondary asphyxiating or toxic effect would
be insufficient to complete the offense).
(9) Using protected persons as shields--(i) Elements. (A) The
accused positioned, or took advantage of the location of, one or more
civilians or persons protected under the law of war;
(B) The accused intended to use the civilian or protected nature of
the person or persons to shield a military objective from attack or to
shield, favor, or impede military operations; and
(C) The conduct took place in the context of and was associated
with armed conflict.
(ii) [Reserved]
(10) Using protected property as shields--(i) Elements. (A) The
accused positioned, or took advantage of the location of, civilian
property or property protected under the law of war;
(B) The accused intended to shield a military objective from attack
or to shield, favor, or impede military operations; and
(C) The conduct took place in the context of and was associated
with armed conflict.
(ii) [Reserved]
(11) Torture--(i) Elements. (A) The accused inflicted severe
physical or mental pain or suffering upon one or more persons;
(B) The accused intended to inflict such severe physical or mental
pain or suffering;
(C) Such person or persons were in the custody or under the control
of the accused; and
(D) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. (A) Consistent with Sec. 11.4(b), this offense does
not include pain or suffering arising only from, inherent in, or
incidental to, lawfully imposed punishments. This offense does not
include the incidental

[[Page 39384]]

infliction of pain or suffering associated with the legitimate conduct
of hostilities.
(B) Severe ``mental pain or suffering'' is the prolonged mental
harm caused by or resulting from:
(1) The intentional infliction or threatened infliction of severe
physical pain or suffering;
(2) The administration or application, or threatened administration
or application, of mind-altering substances or other procedures
calculated to disrupt profoundly the senses or the personality;
(3) The threat of imminent death; or
(4) The threat that another person will imminently be subjected to
death, severe physical pain or suffering, or the administration or
application of mind-altering substances or other procedures calculated
to disrupt profoundly the senses or personality.
(C) ``Prolonged mental harm'' is a harm of some sustained duration,
though not necessarily permanent in nature, such as a clinically
identifiable mental disorder.
(D) Paragraph (a)(11)(i)(C) of this section does not require a
particular formal relationship between the accused and the victim.
Rather, it precludes prosecution for pain or suffering consequent to a
lawful military attack.
(12) Causing serious injury--(i) Elements. (A) The accused caused
serious injury to the body or health of one or more persons;
(B) The accused intended to inflict such serious injury;
(C) Such person or persons were in the custody or under the control
of the accused; and
(D) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. ``Serious injury'' includes fractured or dislocated
bones, deep cuts, torn members of the body, and serious damage to
internal organs.
(13) Mutilation or maiming--(i) Elements. (A) The accused subjected
one or more persons to mutilation, in particular by permanently
disfiguring the person or persons, or by permanently disabling or
removing an organ or appendage;
(B) The accused intended to subject such person or persons to such
mutilation;
(C) The conduct caused death or seriously damaged or endangered the
physical or mental health or appearance of such person or persons.
(D) The conduct was neither justified by the medical treatment of
the person or persons concerned nor carried out in the interest of such
person or persons;
(E) Such person or persons were in the custody or control of the
accused; and
(F) The conduct took place in the context of and was associated
with armed conflict.
(ii) [Reserved]
(14) Use of treachery or perfidy--(i) Elements. (A) The accused
invited the confidence or belief of one or more persons that they were
entitled to, or were obliged to accord, protection under the law of
war;
(B) The accused intended to betray that confidence or belief;
(C) The accused killed, injured, or captured one or more persons;
(D) The accused made use of that confidence or belief in killing,
injuring, or capturing such person or persons; and
(E) The conduct took place in the context of and was associated
with armed conflict.
(ii) [Reserved]
(15) Improper use of flag of truce--(i) Elements. (A) The accused
used a flag of truce;
(B) The accused made such use in order to feign an intention to
negotiate, surrender, or otherwise to suspend hostilities when there
was no such intention on the part of the accused; and
(C) The conduct took place in the context of and was associated
with armed conflict.
(ii) [Reserved]
(16) Improper use of protective emblems--(i) Elements. (A) The
accused used a protective emblem recognized by the law of armed
conflict;
(B) The accused undertook such use for combatant purposes in a
manner prohibited by the law of armed conflict;
(C) The accused knew or should have known of the prohibited nature
of such use; and
(D) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. ``Combatant purposes,'' as used in paragraph
(a)(16)(i)(B) of this section, means purposes directly related to
hostilities and does not include medical, religious, or similar
activities.
(17) Degrading treatment of a dead body.--(i) Elements. (A) The
accused degraded or otherwise violated the dignity of the body of a
dead person;
(B) The accused intended to degrade or otherwise violate the
dignity of such body;
(C) The severity of the degradation or other violation was of such
degree as to be generally recognized as an outrage upon personal
dignity; and
(D) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. Paragraph (a)(17)(i)(B) of this section precludes
prosecution for actions justified by military necessity.
(18) Rape--(i) Elements. (A) The accused invaded the body of a
person by conduct resulting in penetration, however slight, of any part
of the body of the victim or of the accused with a sexual organ, or of
the anal or genital opening of the victim with any object or any other
part of the body;
(B) The invasion was committed by force, threat of force or
coercion, or was committed against a person incapable of giving
consent; and
(C) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. (A) Paragraph (a)(18)(i)(B) of this section
recognizes that consensual conduct does not give rise to this offense.
(B) It is understood that a person may be incapable of giving
consent if affected by natural, induced, or age-related incapacity.
(C) The concept of ``invasion'' is linked to the inherent
wrongfulness requirement for all offenses. In this case, for example, a
legitimate body cavity search could not give rise to this offense.
(D) The concept of ``invasion'' is gender neutral.
(b) Substantive offenses--other offenses triable by military
commission. The following enumerated offenses, if applicable, should be
charged in separate counts. Elements are drafted to reflect conduct of
the perpetrator. Each element need not be specifically charged.
(1) Hijacking or hazarding a vessel or aircraft--(i) Elements. (A)
The accused seized, exercised control over, or endangered the safe
navigation of a vessel or aircraft;
(B) The accused intended to so seize, exercise control over, or
endanger such vessel or aircraft; and
(C) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. A seizure, exercise of control, or endangerment
required by military necessity, or against a lawful military objective
undertaken by military forces of a State in the exercise of their
official duties, would not satisfy the wrongfulness requirement for
this crime.
(2) Terrorism--(i) Elements. (A) The accused killed or inflicted
bodily harm on one or more persons or destroyed property;
(B) The accused:
(1) Intended to kill or inflict bodily harm on one or more persons;
or
(2) Intentionally engaged in an act that is inherently dangerous to
another

[[Page 39385]]

and evinces a wanton disregard of human life;
(C) The killing, harm or destruction was intended to intimidate or
coerce a civilian population, or to influence the policy of a
government by intimidation or coercion; and
(D) The killing, harm or destruction took place in the context of
and was associated with armed conflict.
(ii) Comments. (A) Paragraph (b)(2)(i)(A) of this section includes
the concept of causing death or bodily harm, even if indirectly.
(B) The requirement that the conduct be wrongful for this crime
necessitates that the conduct establishing this offense not constitute
an attack against a lawful military objective undertaken by military
forces of a State in the exercise of their official duties.
(3) Murder by an unprivileged belligerent--(i) Elements. (A) The
accused killed one or more persons;
(B) The accused:
(1) Intended to kill or inflict great bodily harm on such person or
persons; or
(2) Intentionally engaged in an act that is inherently dangerous to
another and evinces a wanton disregard of human life;
(C) The accused did not enjoy combatant immunity; and
(D) The killing took place in the context of and was associated
with armed conflict.
(ii) Comments. (A) The term ``kill'' includes intentionally causing
death, whether directly or indirectly.
(B) Unlike the crimes of willful killing or attacking civilians, in
which the victim's status is a prerequisite to criminality, for this
offense the victim's status is immaterial. Even an attack on a soldier
would be a crime if the attacker did not enjoy ``belligerent
privilege'' or ``combatant immunity.''
(4) Destruction of property by an unprivileged belligerent--(i)
Elements. (A) The accused destroyed property;
(B) The property belonged to another person, and the destruction
was without that person's consent;
(C) The accused intended to destroy such property;
(D) The accused did not enjoy combatant immunity; and
(E) The destruction took place in the context of and was associated
with armed conflict.
(ii) [Reserved]
(5) Aiding the enemy--(i) Elements. (A) The accused aided the
enemy;
(B) The accused intended to aid the enemy; and
(C) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. (A) Means of accomplishing paragraph (b)(5)(i)(A) of
this section include, but are not limited to: providing arms,
ammunition, supplies, money, other items or services to the enemy;
harboring or protecting the enemy; or giving intelligence or other
information to the enemy.
(B) The requirement that conduct be wrongful for this crime
necessitates that the accused act without proper authority. For
example, furnishing enemy combatants detained during hostilities with
subsistence or quarters in accordance with applicable orders or policy
is not aiding the enemy.
(C) The requirement that conduct be wrongful for this crime may
necessitate that, in the case of a lawful belligerent, the accused owe
allegiance or some duty to the United States of America or to an ally
or coalition partner. For example, citizenship, resident alien status,
or a contractual relationship in or with the United States or an ally
or coalition partner is sufficient to satisfy this requirement so long
as the relationship existed at a time relevant to the offense alleged.
(6) Spying--(i) Elements. (A) The accused collected or attempted to
collect certain information;
(B) The accused intended to convey such information to the enemy;
(C) The accused, in collecting or attempting to collect the
information, was lurking or acting clandestinely, while acting under
false pretenses; and
(D) The conduct took place in the context of and was associated
with armed conflict.
(ii) Comments. (A) Members of a military organization not wearing a
disguise and others who carry out their missions openly are not spies,
if, though they may have resorted to concealment, they have not acted
under false pretenses.
(B) Related to the requirement that conduct be wrongful or without
justification or excuse in this case is the fact that, consistent with
the law of war, a lawful combatant who, after rejoining the armed force
to which that combatant belongs, is subsequently captured, can not be
punished for previous acts of espionage. His successful rejoining of
his armed force constitutes a defense.
(7) Perjury or false testimony--(i) Elements.
(A) The accused testified at a military commission, in proceedings
ancillary to a military commission, or provided information in a
writing executed under an oath to tell the truth or a declaration
acknowledging the applicability of penalties of perjury in connection
with such proceedings;
(B) Such testimony or information was material;
(C) Such testimony or information was false; and
(D) The accused knew such testimony or information to be false.
(ii) [Reserved]
(8) Obstruction of justice related to military commissions--(i)
Elements. (A) The accused did an act;
(B) The accused intended to influence, impede, or otherwise
obstruct the due administration of justice; and
(C) The accused did such act in the case of a certain person
against whom the accused had reason to believe:
(1) There were or would be proceedings before a military
commission; or
(2) There was an ongoing investigation of offenses triable by
military commission.
(ii) [Reserved]
(c) Other forms of liability and related offenses. A person is
criminally liable as a principal for a completed substantive offense if
that person commits the offense (perpetrator), aids or abets the
commission of the offense, solicits commission of the offense, or is
otherwise responsible due to command responsibility. Such a person
would be charged as a principal even if another individual more
directly perpetrated the offense. In proving culpability, however, the
below listed definitions and elements are applicable. Additionally, if
a substantive offense was completed, a person may be criminally liable
for the separate offense of accessory after the fact. If the
substantive offense was not completed, a person may be criminally
liable of the lesser-included offense of attempt or the separate
offense of solicitation. Finally, regardless of whether the substantive
offense was completed, a person may be criminally liable of the
separate offense of conspiracy in addition to the substantive offense.
Each element need not be specifically charged.
(1) Aiding or abetting--(i) Elements. (A) The accused committed an
act that aided or abetted another person or entity in the commission of
a substantive offense triable by military commission;
(B) Such other person or entity committed or attempted to commit
the substantive offense; and
(C) The accused intended to or knew that the act would aid or abet
such other person or entity in the commission of the substantive
offense or an associated criminal purpose or enterprise.
(ii) Comments. (A) The term ``aided or abetted'' in paragraph
(c)(1)(i)(A) of this section includes: assisting, encouraging,
advising, instigating, counseling,

[[Page 39386]]

ordering, or procuring another to commit a substantive offense;
assisting, encouraging, advising, counseling, or ordering another in
the commission of a substantive offense; and in any other way
facilitating the commission of a substantive offense.
(B) In some circumstances, inaction may render one liable as an
aider or abettor. If a person has a legal duty to prevent or thwart the
commission of a substantive offense, but does not do so, that person
may be considered to have aided or abetted the commission of the
offense if such noninterference is intended to and does operate as an
aid or encouragement to the actual perpetrator.
(C) An accused charged with aiding or abetting should be charged
with the related substantive offense as a principal.
(2) Solicitation--(i) Elements. (A) The accused solicited, ordered,
induced, or advised a certain person or persons to commit one or more
substantive offenses triable by military commission; and
(B) The accused intended that the offense actually be committed.
(ii) Comments. (A) The offense is complete when a solicitation is
made or advice is given with the specific wrongful intent to induce a
person or persons to commit any offense triable by military commission.
It is not necessary that the person or persons solicited, ordered,
induced, advised, or assisted agree to or act upon the solicitation or
advice. If the offense solicited is actually committed, however, the
accused is liable under the law of armed conflict for the substantive
offense. An accused should not be convicted of both solicitation and
the substantive offense solicited if criminal liability for the
substantive offense is based upon the solicitation.
(B) Solicitation may be by means other than speech or writing. Any
act or conduct that reasonably may be construed as a serious request,
order, inducement, advice, or offer of assistance to commit any offense
triable by military commission may constitute solicitation. It is not
necessary that the accused act alone in the solicitation, order,
inducement, advising, or assistance. The accused may act through other
persons in committing this offense.
(C) An accused charged with solicitation of a completed substantive
offense should be charged for the substantive offense as a principal.
An accused charged with solicitation of an uncompleted offense should
be charged for the separate offense of solicitation. Solicitation is
not a lesser-included offense of the related substantive offense.
(3) Command/superior responsibility--perpetrating--(i) Elements.
(A) The accused had command and control, or effective authority and
control, over one or more subordinates;
(B) One or more of the accused's subordinates committed, attempted
to commit, conspired to commit, solicited to commit, or aided or
abetted the commission of one or more substantive offenses triable by
military commission;
(C) The accused either knew or should have known that the
subordinate or subordinates were committing, attempting to commit,
conspiring to commit, soliciting, or aiding or abetting such offense or
offenses; and
(D) The accused failed to take all necessary and reasonable
measures within his power to prevent or repress the commission of the
offense or offenses.
(ii) Comments.
(A) The phrase ``effective authority and control'' in paragraph
(c)(3)(i)(A) of this section includes the concept of relative authority
over the subject matter or activities associated with the perpetrator's
conduct. This may be relevant to a civilian superior who should not be
held responsible for the behavior of subordinates involved in
activities that have no relationship to such superior's sphere of
authority. Subject matter authority need not be demonstrated for
command responsibility as it applies to a military commander.
(B) A commander or other military or civilian superior, not in
command, charged with failing adequately to prevent or repress a
substantive offense triable by military commission should be charged
for the related substantive offense as a principal.
(4) Command/superior responsibility--misprision--(i) Elements. (A)
The accused had command and control, or effective authority and
control, over one or more subordinates;
(B) One or more of the accused's subordinates had committed,
attempted to commit, conspired to commit, solicited to commit, or aided
or abetted the commission of one or more substantive offenses triable
by military commission;
(C) The accused knew or should have known that the subordinate or
subordinates had committed, attempted to commit, conspired to commit,
solicited, or aided or abetted such offense or offenses; and
(D) The accused failed to submit the matter to competent
authorities for investigation or prosecution as appropriate.
(ii) Comments.
(A) The phrase, ``effective authority and control'' in paragraph
(c)(4)(i)(A) of this section includes the concept of relative authority
over the subject matter or activities associated with the perpetrator's
conduct. This may be relevant to a civilian superior who cannot be held
responsible under this offense for the behavior of subordinates
involved in activities that have nothing to do with such superior's
sphere of authority.
(B) A commander or superior charged with failing to take
appropriate punitive or investigative action subsequent to the
perpetration of a substantive offense triable by military commission
should not be charged for the substantive offense as a principal. Such
commander or superior should be charged for the separate offense of
failing to submit the matter for investigation and/or prosecution as
detailed in these elements. This offense is not a lesser-included
offense of the related substantive offense.
(5) Accessory after the fact--(i) Elements. (A) The accused
received, comforted, or assisted a certain person;
(B) Such person had committed an offense triable by military
commission;
(C) The accused knew that such person had committed such offense or
believed such person had committed a similar or closely related
offense; and
(D) The accused intended to hinder or prevent the apprehension,
trial, or punishment of such person.
(ii) Comments. Accessory after the fact should be charged
separately from the related substantive offense. It is not a lesser-
included offense of the related substantive offense.
(6) Conspiracy--(i) Elements. (A) The accused entered into an
agreement with one or more persons to commit one or more substantive
offenses triable by military commission or otherwise joined an
enterprise of persons who shared a common criminal purpose that
involved, at least in part, the commission or intended commission of
one or more substantive offenses triable by military commission;
(B) The accused knew the unlawful purpose of the agreement or the
common criminal purpose of the enterprise and joined in it willfully,
that is, with the intent to further the unlawful purpose; and
(C) One of the conspirators or enterprise members, during the
existence of the agreement or enterprise, knowingly committed an overt
act in order to accomplish some objective or purpose of the agreement
or enterprise.

[[Page 39387]]

(ii) Comments. (A) Two or more persons are required in order to
have a conspiracy. Knowledge of the identity of co-conspirators and
their particular connection with the agreement or enterprise need not
be established. A person may be guilty of conspiracy although incapable
of committing the intended offense. The joining of another conspirator
after the conspiracy has been established does not create a new
conspiracy or affect the status of the other conspirators. The
agreement or common criminal purpose in a conspiracy need not be in any
particular form or manifested in any formal words.
(B) The agreement or enterprise must, at least in part, involve the
commission or intended commission of one or more substantive offenses
triable by military commission. A single conspiracy may embrace
multiple criminal objectives. The agreement need not include knowledge
that any relevant offense is in fact ``triable by military
commission.''
(C) The overt act must be done by one or more of the conspirators,
but not necessarily the accused, and it must be done to effectuate the
object of the conspiracy or in furtherance of the common criminal
purpose. The accused need not have entered the agreement or criminal
enterprise at the time of the overt act.
(D) The overt act need not be in itself criminal, but it must
advance the purpose of the conspiracy. It is not essential that any
substantive offense be committed.
(E) Each conspirator is liable for all offenses committed pursuant
to or in furtherance of the conspiracy by any of the co-conspirators,
after such conspirator has joined the conspiracy and while the
conspiracy continues and such conspirator remains a party to it.
(F) A party to the conspiracy who withdraws from or abandons the
agreement or enterprise before the commission of an overt act by any
conspirator is not guilty of conspiracy. An effective withdrawal or
abandonment must consist of affirmative conduct that is wholly
inconsistent with adherence to the unlawful agreement or common
criminal purpose and that shows that the party has severed all
connection with the conspiracy. A conspirator who effectively withdraws
from or abandons the conspiracy after the performance of an overt act
by one of the conspirators remains guilty of conspiracy and of any
offenses committed pursuant to the conspiracy up to the time of the
withdrawal or abandonment. The withdrawal of a conspirator from the
conspiracy does not affect the status of the remaining members.
(G) That the object of the conspiracy was impossible to effect is
not a defense to this offense.
(H) Conspiracy to commit an offense is a separate and distinct
offense from any offense committed pursuant to or in furtherance of the
conspiracy, and both the conspiracy and any related offense may be
charged, tried, and punished separately. Conspiracy should be charged
separately from the related substantive offense. It is not a lesser-
included offense of the substantive offense.
(7) Attempt--(i) Elements. (A) The accused committed an act;
(B) The accused intended to commit one or more substantive offenses
triable by military commission;
(C) The act amounted to more than mere preparation; and
(D) The act apparently tended to effect the commission of the
intended offense.
(ii) Comments. (A) To constitute an attempt there must be a
specific intent to commit the offense accompanied by an act that tends
to accomplish the unlawful purpose. This intent need not involve
knowledge that the offense is in fact ``triable by military
commission.''
(B) Preparation consists of devising or arranging means or measures
apparently necessary for the commission of the offense. The act need
not be the last act essential to the consummation of the offense. The
combination of specific intent to commit an offense, plus the
commission of an act apparently tending to further its accomplishment,
constitutes the offense of attempt. Failure to complete the offense,
whatever the cause, is not a defense.
(C) A person who purposely engages in conduct that would constitute
the offense if the attendant circumstances were as that person believed
them to be is guilty of an attempt.
(D) It is a defense to an attempt offense that the person
voluntarily and completely abandoned the intended offense, solely
because of the person's own sense that it was wrong, prior to the
completion of the substantive offense. The voluntary abandonment
defense is not allowed if the abandonment results, in whole or in part,
from other reasons, for example, the person feared detection or
apprehension, decided to await a better opportunity for success, was
unable to complete the crime, or encountered unanticipated difficulties
or unexpected resistance.
(E) Attempt is a lesser-included offense of any substantive offense
triable by military commission and need not be charged separately. An
accused may be charged with attempt without being charged with the
substantive offense.

Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16379 Filed 6-26-03; 12:40 pm]

BILLING CODE 5001-08-P

Chief prosecutor, prosecutors, and assistant prosecutors; responsibilities

[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39387-39389]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-23]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 12

Responsibilities of the Chief Prosecutor, Prosecutors, and
Assistant Prosecutors

AGENCY: Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule establishes the responsibilities of the Office of
the Chief Prosecutor and components thereof.

EFFECTIVE DATE: April 30, 2003.

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

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

It has been certified that 32 CFR part 12 is as a military function
of the United States and exempt from administrative procedures for rule
making.

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

It has been certified that 32 CFR part 12 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 12 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)

[[Page 39388]]

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

It has been certified that 32 CFR part 12 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 12 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 12

Military law.

0
Accordingly, 32 CFR part 12 is added to subtitle A, chapter I,
Subchapter B to read as follows:

PART 12--RESPONSIBILITIES OF THE CHIEF PROSECUTOR, PROSECUTORS, AND
ASSISTANT PROSECUTORS

Sec.
12.1 Purpose.
12.2 Authority.
12.3 Office of the Chief Prosecutor.
12.4 Duties and responsibilities of the prosecution.
12.5 Policies.

Authority: 10 U.S.C. 113(d) and 140(b).

Sec. 12.1 Purpose.

This part establishes the responsibilities of the Office of the
Chief Prosecutor and components thereof.

Sec. 12.2 Authority.

This part is issued pursuant to 32 CFR 9.7(a) and in accordance
with 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) and 10 U.S.C. 113(d) and 140(b). The
provisions of 32 CFR part 10 are applicable to this part.

Sec. 12.3 Office of the Chief Prosecutor.

(a) General. The Office of the Chief Prosecutor shall be a
component of the Office of Military Commissions and shall be comprised
of the Chief Prosecutor, Prosecutors, and other persons properly under
the supervision of the Chief Prosecutor.
(b) Chief Prosecutor. (1) The Chief Prosecutor shall be a judge
advocate of any United States armed force and shall be designated by
the General Counsel of the Department of Defense.
(2) The Chief Prosecutor shall report directly to the Deputy
General Counsel (Legal Counsel) of the Department of Defense.
(3) The Chief Prosecutor shall have authority to subpoena any
individual to appear as a witness, to testify, or to produce any
evidence in a case referred to military commissions or in a criminal
investigation associated with a case that may be referred to a military
commission.
(4) The Chief Prosecutor shall direct the overall prosecution
effort pursuant to 32 CFR part 9, and Military Order of November 13,
2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism,'' ensuring proper supervision and management of
all personnel and resources assigned to the Office of the Chief
Prosecutor.
(5) The Chief Prosecutor shall ensure that all personnel assigned
to the Office of the Chief Prosecutor review, and attest that they
understand and will comply with, 32 CFR part 9, and Military Order of
November 13, 2001,'' Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' and all Supplementary
Regulations and Instructions issued in accordance therewith.
(6) The Chief Prosecutor shall inform the Deputy General Counsel
(Legal Counsel) of all requirements for personnel, office space,
equipment, and supplies to ensure the successful functioning and
mission accomplishment of the Office of the Chief Prosecutor.
(7) The Chief Prosecutor shall supervise all Prosecutors and other
personnel assigned to the Office of the Chief Prosecutor including any
special trial counsel of the Department of Justice who may be made
available by the Attorney General of the United States.
(8) The Chief Prosecutor, or his designee, shall fulfill applicable
performance evaluation requirements associated with Prosecutors and
other personnel properly under the supervision of the Office of the
Chief Prosecutor.
(9) The Chief Prosecutor shall detail a Prosecutor and, as
appropriate, one or more Assistant Prosecutors to perform the duties of
the prosecution as set forth in 32 CFR 9.4(b)(2). The Chief Prosecutor
may detail himself to perform such duties.
(10) The Chief Prosecutor shall ensure that all Prosecutors and
Assistant Prosecutors faithfully represent the United States in
discharging their prosecutorial duties before military commissions
conducted pursuant to 32 CFR part 9, and Military Order of November 13,
2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism.''
(11) The Chief Prosecutor shall ensure that all Prosecutors and
Assistant Prosecutors have taken an oath to perform their duties
faithfully.
(12) The Chief Prosecutor shall ensure that all personnel properly
under the supervision of the Office of the Chief Prosecutor possess the
appropriate security clearances.
(c) Prosecutors. (1) Prosecutors shall be detailed by the Chief
Prosecutor and may be either judge advocates of any United States armed
force or special trial counsel of the Department of Justice who may be
made available by the Attorney General of the United States.
(2) Prosecutors shall represent the United States as Prosecutors or
Assistant Prosecutors as directed by the Chief Prosecutor and in
accordance with 32 CFR part 9, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.''
(3) Prosecutors shall fulfill all responsibilities detailed in 32
CFR part 9, and Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' those set forth in this part, and those assigned by the
Chief Prosecutor.
(4) Prosecutors shall ensure that all court reporters, security
personnel, and interpreters who are to perform duties in relation to a
military commission proceeding have taken an oath to perform their
duties faithfully. As directed by the Presiding Officer, Prosecutors
also shall administer appropriate oaths to witnesses during military
commission proceedings.

Sec. 12.4 Duties and responsibilities of the prosecution.

(a) Regular duties. The Prosecution shall perform all duties
specified or implied in 32 CFR part 9 as responsibilities of the
Prosecution.
(b) Administrative duties. The Prosecution shall, as directed by
the Presiding Officer or the Appointing Authority, prepare any
documentation necessary to facilitate the conduct of military
commissions proceedings. The Prosecution shall, as directed by the
Deputy General Counsel (Legal Counsel), prepare a trial guide to
provide a standardized administrative plan for the conduct of military
commission proceedings. Unless directed otherwise by the Appointing
Authority, the Presiding Officer may, in

[[Page 39389]]

his discretion, depart from this guide as appropriate.
(c) Special duties. The Prosecution shall perform all other
functions, consistent with 32 CFR part 9, and Military Order of
November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' as may be directed by the
Appointing Authority or the General Counsel of the Department of
Defense.

Sec. 12.5 Policies.

(a) Prohibition on Prosecutors serving as Defense Counsel. Judge
advocates assigned to the Office of the Chief Prosecutor shall be
deemed unavailable for service as Defense Counsel under 32 CFR
9.4(c)(3)(i).
(b) Prohibition on certain disclosures. All Prosecutors must
strictly comply with 32 CFR 9.6(d)(5) and 9.9 to ensure they do not
improperly disclose classified information, national security
information, or state secrets to any person not specifically authorized
to receive such information.
(c) Statements to the media. Consistent with DoD Directive 5122.5
\1\, the Assistant Secretary of Defense for Public Affairs shall serve
as the sole release authority for DoD information and audiovisual
materials regarding military commissions. Personnel assigned to the
Office of the Chief Prosecutor may communicate with news media
representatives regarding cases and other matters related to military
commissions only when approved by the Appointing Authority or the
General Counsel of the Department of Defense.
---------------------------------------------------------------------------

\1\ Available at http://www.dtic.mil/whs/directives.

Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16380 Filed 6-26-03; 12:40 pm]

BILLING CODE 5001-08-P

Chief defense counsel, detailed defense counsel, and civilian defense counsel; responsibilities

[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39391-39394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-25]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 14

Qualification of Civilian Defense Counsel

AGENCY: Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule establishes policies and procedures for the creation
and management of the pool of qualified Civilian Defense Counsel
authorized in regulations on Procedures for Trials by Military
Commission of Certain Non-United States Citizens in the War Against
Terrorism in accordance with Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism.''

EFFECTIVE DATE: April 30, 2003.

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

SUPPLEMENTARY INFORMATION: Although exempt from administrative
procedures for rule making, 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 14 is as a military function
of the United States and exempt from administrative procedures for rule
making.

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

It has been certified that 32 CFR part 14 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 14 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)

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

It has been certified that 32 CFR part 14 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 14 does not have federalism
implications, as set forth in Executive

[[Page 39392]]

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 14

Military law.

0
Accordingly, 32 CFR part 14 is added to Subtitle A, Chapter I,
Subchapter B to read as follows:
PART 14--QUALIFICATION OF CIVILIAN DEFENSE COUNSEL
Sec.
14.1 Purpose.
14.2 Authority.
14.3 Policies and procedures.
Appendix A to Part 14--United States of America Authorization for
Release of Information
Appendix B to Part 14--Affidavit and Agreement by Civilian Defense
Counsel

Authority: 10 U.S.C. 113(d) and 140(b).

Sec. 14.1 Purpose.

This part establishes policies and procedures for the creation and
management of the pool of qualified Civilian Defense Counsel authorized
in 32 CFR 9.4 (c)(3)(ii) in accordance with Military Order of November
13, 2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in
the War Against Terrorism,'' (3 CFR 2001 Comp., 918, 66 FR 57833).

Sec. 14.2 Authority.

This part is issued pursuant to 32 CFR 9.7(a) and in accordance
with Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism,'' and 10
U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are
applicable to this part.

Sec. 14.3 Policies and procedures.

(a) Application procedures. (1) Civilian attorneys may be
prequalified as members of the pool of attorneys eligible to represent
Accused before military commissions at no expense to the United States
if, at the time of application, they meet the eligibility criteria set
forth in 32 CFR 9.4(c)(3)(ii) as further detailed in this part, or they
may be qualified on an ad hoc basis after being requested by an
Accused. In both cases, qualification results in membership in the pool
of available Civilian Defense Counsel.
(2) An attorney seeking qualification as a member of the pool of
available Civilian Defense Counsel shall submit an application, by
letter, to: Office of the General Counsel, Department of Defense,
(Attn: Chief Defense Counsel, Office of Military Commissions), 1600
Defense Pentagon, Washington, DC 20301-1600. Applications will be
comprised of the letter requesting qualification for membership,
together with the following documents that demonstrate satisfaction of
the criteria set forth in 32 CFR 9.4(c)(3)(ii):
(i) Civilian Defense Counsel shall be United States citizens (32
CFR 9.4(c)(3)(ii)(A)). Applicants will provide proof of citizenship
(e.g., certified true copy of passport, birth certificate, or
certificate of naturalization).
(ii) Civilian Defense Counsel shall be admitted to the practice of
law in a State, district, territory or possession of the United States,
or before a Federal court (32 CFR 9.4(c)(3)(ii)(B)). Applicants will
submit an official certificate showing that the applicant is an active
member in good standing with the bar of a qualifying jurisdiction. The
certificate must be dated within three months of the date of the Chief
Defense Counsel's receipt of the application.
(iii) Civilian Defense Counsel shall not have been the subject of
any sanction or disciplinary action by any court, bar, or other
competent governmental authority for relevant misconduct (32 CFR
9.4(c)(2)(iii)).
(A) An applicant shall submit a statement detailing all sanctions
or disciplinary actions, pending or final, to which he has been
subject, whether by a court, bar or other competent governmental
authority, for misconduct of any kind. The statement shall identify the
jurisdiction or authority that imposed the sanction or disciplinary
action, together with any explanation deemed appropriate by the
applicant. Additionally, the statement shall identify and explain any
formal challenge to the attorney's fitness to practice law, regardless
of the outcome of any subsequent proceedings. In the event that no
sanction, disciplinary action or challenge has been imposed on or made
against an applicant, the statement shall so state. Further, the
applicant's statement shall identify each jurisdiction in which he has
been admitted or to which he has applied to practice law, regardless of
whether the applicant maintains a current active license in that
jurisdiction, together with any dates of admission to or rejection by
each such jurisdiction and, if no longer active, the date of and basis
for inactivation. The information shall be submitted either in the form
of a sworn notarized statement or as a declaration under penalty of
perjury of the laws of the United States. The sworn statement or
declaration must be executed and dated within three months of the date
of the Chief Defense Counsel's receipt of the application.
(B) Further, applicants shall submit a properly executed
Authorization for Release of Information (Appendix A to this part),
authorizing the Chief Defense Counsel or his designee to obtain
information relevant to qualification of the applicant as a member of
the Civilian Defense Counsel pool from each jurisdiction in which the
applicant has been admitted or to which he has applied to practice law.
(iv) Civilian Defense Counsel shall be 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 described
in Department of Defense Regulation, DoD 5200.2-R, ``Personnel Security
Program.'' \1\ (32 CFR 9.4(c)(2)(iv)
(A) Civilian Defense Counsel applicants who possess a valid current
security clearance of SECRET or higher shall provide, in writing, the
date of their background investigation, the date such clearance was
granted, the level of the clearance, and the adjudicating authority.
(B) Civilian Defense Counsel applicants who do not possess a valid
current security clearance of SECRET or higher shall state in writing
their willingness to submit to a background investigation in accordance
with DoD 5200.2-R and to pay any actual costs associated with the
processing of the same. The security clearance application,
investigation, and adjudication process will not be initiated until the
applicant has submitted an application that otherwise fully complies
with this part and the Chief Defense Counsel has determined that the
applicant would otherwise be qualified for membership in the Civilian
Defense Counsel pool. Favorable adjudication of the applicant's
personnel security investigation must be completed before an applicant
will be qualified for membership in the pool of Civilian Defense
Counsel. The Chief Defense Counsel may, at his discretion, withhold
qualification and wait to initiate the security clearance process until
such time as the Civilian Defense Counsel's services are likely to be
sought.
---------------------------------------------------------------------------

\1\ Available at http://www.dtic.mil/whs/directives.
---------------------------------------------------------------------------

(v) Civilian Defense Counsel shall have 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 (32 CFR 9.4(c)(2)(v)). This requirement shall be satisfied
by the execution of the

[[Page 39393]]

Affidavit And Agreement By Civilian Defense Counsel at Appendix B to
this part. The Affidavit And Agreement By Civilian Defense Counsel
shall be executed and agreed to without change, (i.e., no omissions,
additions or substitutions). Proper execution shall require the
notarized signature of the applicant. The Affidavit And Agreement By
Civilian Defense Counsel shall be dated within three months of the date
of the Chief Defense Counsel's receipt of the application.
(3) Applications mailed in a franked U.S. Government envelope or
received through U.S. Government distribution will not be considered.
Telefaxed or electronic mail application materials will not be
accepted. Failure to provide all of the requisite information and
documentation may result in rejection of the application. A false
statement in any part of the application may preclude qualification
and/or render the applicant liable for disciplinary or criminal
sanction, including under 18 U.S.C. 1001.
(b) Application review. (1) The Chief Defense Counsel or his
designee shall review all Civilian Defense Counsel pool applications
for compliance with 32 CFR part 9 and Military Order of November 13,
2001, ``Detention, Treatment, and Trial of Certain Non-Citizens in the
War Against Terrorism,'' and with this part.
(2) The Chief Defense Counsel shall consider all applicants for
qualification as members of the Civilian Defense Counsel pool without
regard to race, religion, color, sex, age, national origin, or other
non-disqualifying physical or mental disability.
(3) The Chief Defense Counsel may reject any Civilian Defense
Counsel application that is incomplete or otherwise fails to comply
with 32 CFR part 9 and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism,'' or with this part.
(4) Subject to review by the General Counsel of the Department of
Defense, the Chief Defense Counsel shall determine the number of
qualified attorneys that shall constitute the pool of available
Civilian Defense Counsel. Similarly, subject to review by the General
Counsel of the Department of Defense, the Chief Defense Counsel shall
determine the qualification of applicants for membership in such pool.
This shall include determinations as to whether any sanction,
disciplinary action, or challenge is related to relevant misconduct
that would disqualify the Civilian Defense Counsel applicant.
(5) The Chief Defense Counsel's determination as to each
applicant's qualification for membership in the pool of qualified
Civilian Defense Counsel shall be deemed effective as of the date of
the Chief Defense Counsel's written notification publishing such
determination to the applicant. Subsequent to this notification, the
retention of qualified Civilian Defense Counsel is effected upon
written entry of appearance, communicated to the military commission
through the Chief Defense Counsel.
(6) The Chief Defense Counsel may reconsider his determination as
to an individual's qualification as a member of the Civilian Defense
Counsel pool on the basis of subsequently discovered information
indicating material nondisclosure or misrepresentation in the
application, or material violation of obligations of the Civilian
Defense Counsel, or other good cause, or the matter may be referred to
the Appointing Authority or the General Counsel of the Department of
Defense, who may revoke or suspend the qualification of any member of
the Civilian Defense Counsel pool.

Appendix A to Part 14--United States of America Authorization for
Release of Information

United States of America

Authorization for Release of Information

(Carefully read this authorization to release information about you,
then sign and date it in ink.)

I authorize the Chief Defense Counsel, Office of Military
Commissions, Department of Defense, his designee or other duly
authorized representative of the Department of Defense who may be
charged with assessing or determining my qualification for
membership in the pool of Civilian Defense Counsel available to
represent Accused before military commissions, to obtain any
information from any court, the bar of any State, locality,
district, territory or possession of the United States, or from any
other governmental authority.
This information may include, but is not limited to, information
relating to: Any application for a security clearance; my admission
or application for admission to practice law in any jurisdiction,
including action by the jurisdiction upon such application, together
with my current status with regard to the practice of law in such
jurisdiction; any sanction or disciplinary action to which I have
been subject for misconduct of any kind; and any formal challenge to
my fitness to practice law, regardless of the outcome of subsequent
proceedings.
I authorize custodians of such records or information and other
sources of information pertaining to me to release such at the
request of the officials named above, regardless of any previous
agreement to the contrary.
I understand that for certain custodians or sources of
information a separate specific release may be required and that I
may be contacted for the purposes of executing such at a later date.
I understand that the records or information released by
custodians and other sources of information are for official use by
the Department of Defense, only for the purposes provided herein,
and that they may be redisclosed by the Department of Defense only
as authorized by law.
Copies of this authorization that show my signature are as valid
as the original signed by me. This authorization is valid for five
(5) years from the date signed or upon termination of my affiliation
with the Department of Defense, whichever is later.

-----------------------------------------------------------------------
Signature (sign in ink) SSN

-----------------------------------------------------------------------
Date

Appendix B to Part 14--Affidavit and Agreement by Civilian Defense
Counsel

Affidavit and Agreement by Civilian Defense Counsel

Pursuant to Section 4(C)(3)(b) of Department of Defense Military
Commission Order No. 1, ``Procedures for Trials by Military
Commissions of Certain Non-United States Citizens in the War Against
Terrorism,'' dated March 21, 2002 (``MCO No. 1''), Military
Commission Instructions No. 4, ``Responsibilities of the Chief
Defense Counsel, Detailed Defense Counsel, and Civilian Defense
Counsel'' (``MCI No. 4'') and No. 5, ``Qualification of Civilian
Defense Counsel'' (``MCI No. 5''), and in accordance with the
President's Military Order of November 13, 2001, ``Detention,
Treatment, and Trial of Certain Non-Citizens in the War Against
Terrorism,'' 66 FR 57833 (Nov. 16, 2001) (``President's Military
Order''), I [Name of Civilian Attorney], make this Affidavit and
Agreement for the purposes of applying for qualification as a member
of the pool of Civilian Defense Counsel available to represent
Accused before military commissions and serving in that capacity.
I. Oaths or Affirmations. I swear or affirm that the following
information is true to the best of my knowledge and belief:
A. I have read and understand the President's Military Order,
MCO No. 1, MCI No. 4, MCI No. 5, and all other Military Commission
Orders and Instructions concerning the rules, regulations and
instructions applicable to trial by military commissions. I will
read all future Orders and Instructions applicable to trials by
military commissions.
B. I am aware that my qualification as a Civilian Defense
Counsel does not guarantee my presence at closed military commission
proceedings or guarantee my access to any information protected
under Section 6(D)(5) or Section 9 of MCO No. 1.
II. Agreements. I hereby agree to comply with all applicable
regulations and instructions for counsel, including any rules of
court for conduct during the course of proceedings, and specifically
agree, without limitation, to the following:
A. I will notify the Chief Defense Counsel and, as applicable,
the relevant Presiding Officer immediately if, after the execution
of

[[Page 39394]]

this Affidavit and Agreement but prior to the conclusion of
proceedings (defined as the review and final decision of the
President or, if designated, the Secretary of Defense), if there is
any change in any of the information provided in my application,
including this Affidavit and Agreement, for qualification as member
of the Civilian Defense Counsel pool. I understand that such
notification shall be in writing and shall set forth the substantive
nature of the changed information.
B. I will be well-prepared and will conduct the defense
zealously, representing the Accused throughout the military
commission process, from the inception of my representation through
the completion of any post trial proceedings as detailed in Section
6(H) of MCO No. 1. I will ensure that these proceedings are my
primary duty. I will not seek to delay or to continue the
proceedings for reasons relating to matters that arise in the course
of my law practice or other professional or personal activities that
are not related to military commission proceedings.
C. The Defense Team shall consist entirely of myself, Detailed
Defense Counsel, and other personnel provided by the Chief Defense
Counsel, the Presiding Officer, or the Appointing Authority. I will
make no claim against the U.S. Government for any fees or costs
associated with my conduct of the defense or related activities or
efforts.
D. Recognizing that my representation does not relieve Detailed
Defense Counsel of duties specified in Section 4(C)(2) of MCO No. 1,
I will work cooperatively with such counsel to ensure coordination
of efforts and to ensure such counsel is capable of conducting the
defense independently if necessary.
E. During the pendency of the proceedings, unless I obtain
approval in advance from the Presiding Officer to do otherwise, I
will comply with the following restrictions on my travel and
communications:
1. I will not travel or transmit documents from the site of the
proceedings without the approval of the Appointing Authority or the
Presiding Officer. The Defense Team and I will otherwise perform all
of our work relating to the proceedings, including any electronic or
other research, at the site of the proceedings (except that this
shall not apply during post-trial proceedings detailed in Section
6(H) of MCO No. 1).
2. I will not discuss or otherwise communicate or share
documents or information about the case with anyone except persons
who have been designated as members of the Defense Team in
accordance with this Affidavit and Agreement and other applicable
rules, regulations and instructions.
F. At no time, to include any period subsequent to the
conclusion of the proceedings, will I make any public or private
statements regarding any closed sessions of the proceedings or any
classified information or material, or document or material
constituting protected information under MCO No. 1.
G. I understand and agree to comply with all rules, regulations
and instructions governing the handling of classified information
and material. Furthermore, no document or material constituting
protected information under MCO No. 1, regardless of its
classification level, may leave the site of the proceedings.
H. I understand that there may be reasonable restrictions on the
time and duration of contact I may have with my client, as imposed
by the Appointing Authority, the Presiding Officer, detention
authorities, or regulation.
I. I understand that my communications with my client, even if
traditionally covered by the attorney-client privilege, may be
subject to monitoring or review by government officials, using any
available means, for security and intelligence purposes. I
understand that any such monitoring will only take place in limited
circumstances when approved by proper authority, and that any
evidence or information derived from such communications will not be
used in proceedings against the Accused who made or received the
relevant communication. I further understand that communications are
not protected if they would facilitate criminal acts or a conspiracy
to commit criminal acts, or if those communications are not related
to the seeking or providing of legal advice.
J. I agree that I shall reveal to the Chief Defense Counsel and
any other appropriate authorities, information relating to the
representation of my client to the extent that I reasonably believe
necessary to prevent the commission of a future criminal act that I
believe is likely to result in death or substantial bodily harm, or
significant impairment of national security.
K. I understand and agree that nothing in this Affidavit and
Agreement creates any substantive, procedural, or other rights for
me as counsel or for my client(s).
/s/-------------------------------------------------------------------
Print Name:-----------------------------------------------------------
Address:--------------------------------------------------------------
Date:-----------------------------------------------------------------

State of )
County of )

Sworn to and subscribed before me, by ----------, this ---- day
of --------, 20----.

Notary

My commission expires:------------------------------------------------

Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16382 Filed 6-26-03; 12:40 pm]

BILLING CODE 5001-08-P

Civilian defense counsel

[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39391-39394]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-25]

-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 14

Qualification of Civilian Defense Counsel

AGENCY: Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

EFFECTIVE DATE: April 30, 2003.

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

SUPPLEMENTARY INFORMATION: Although exempt from administrative
procedures for rule making, 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 14 is as a military function
of the United States and exempt from administrative procedures for rule
making.

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

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

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

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

It has been certified that 32 CFR part 14 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 14 does not have federalism
implications, as set forth in Executive

[[Page 39392]]

List of Subjects in 32 CFR part 14

Military law.

Authority: 10 U.S.C. 113(d) and 140(b).

Sec. 14.1 Purpose.

Sec. 14.2 Authority.

This part is issued pursuant to 32 CFR 9.7(a) and in accordance
with Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism,'' and 10
U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are
applicable to this part.

Sec. 14.3 Policies and procedures.

\1\ Available at http://www.dtic.mil/whs/directives.
---------------------------------------------------------------------------

[[Page 39393]]

Appendix A to Part 14--United States of America Authorization for
Release of Information

United States of America

Authorization for Release of Information

(Carefully read this authorization to release information about you,
then sign and date it in ink.)

-----------------------------------------------------------------------
Signature (sign in ink) SSN

-----------------------------------------------------------------------
Date

Appendix B to Part 14--Affidavit and Agreement by Civilian Defense
Counsel

Affidavit and Agreement by Civilian Defense Counsel

[[Page 39394]]

State of )
County of )

Sworn to and subscribed before me, by ----------, this ---- day
of --------, 20----.

Notary

My commission expires:------------------------------------------------

Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16382 Filed 6-26-03; 12:40 pm]

BILLING CODE 5001-08-P

Military commission personnel; reporting relationships

[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39394-39395]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-26]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 15

Reporting Relationships for Military Commission Personnel

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule establishes supervisory and performance evaluation
relationships for military commission personnel.

EFFECTIVE DATE: April 30, 2003.

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

SUPPLEMENTARY INFORMATION: Although exempt from administrative
procedures for rule making, 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 15 is as a military function
of the United States and exempt from administrative procedures for rule
making.

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

It has been certified that 32 CFR part 15 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 15 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)

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

It has been certified that 32 CFR part 15 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 15 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.

[[Page 39395]]

List of Subjects in 32 CFR Part 15

Military law.

0
Accordingly, 32 CFR part 15 is added to Subtitle A, Chapter I,
Subchapter B to read as follows:

PART 15--REPORTING RELATIONSHIPS FOR MILITARY COMMISSION PERSONNEL

Sec.
15.1 Purpose.
15.2 Authority.
15.3 Policies and procedures.

Authority: 10 U.S.C. 113(d) and 140(b).

Sec. 15.1 Purpose.

This part establishes supervisory and performance evaluation
relationships for military commission personnel.

Sec. 15.2 Authority.

This part is issued pursuant to 32 CFR 9.7(a) and in accordance
with 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) and 10 U.S.C. 113(d) and 140(b). The
provisions of 32 CFR part 10 are applicable to this part.

Sec. 15.3 Policies and Procedures.

(a) Supervisory and performance evaluation relationships.
Individuals appointed, assigned, detailed, designated or employed in a
capacity related to the conduct of military commission proceedings
conducted in accordance with 32 CFR part 9 and Military Order of
November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism,'' shall be subject to the
relationships set forth in paragraphs (a)(1) through (a)(9) of this
section. Unless stated otherwise, the person to whom an individual
``reports,'' as set forth in paragraphs (a)(1) through (a)(9) of this
section, shall be deemed to be such individual's supervisor and shall,
to the extent possible, fulfill all performance evaluation
responsibilities normally associated with the function of direct
supervisor in accordance with the subordinate's Military Service
performance evaluation regulations.
(1) Appointing Authority: Any Appointing Authority designated by
the Secretary of Defense pursuant to 32 CFR part 9 shall report to the
Secretary of Defense in accordance with 10 U.S.C. 113(d).
(2) Legal Advisor to Appointing Authority: The Legal Advisor to the
Appointing Authority shall report to the Appointing Authority.
(3) Chief Prosecutor: The Chief Prosecutor shall report to the
Deputy General Counsel (Legal Counsel) of the Department of Defense and
then to the General Counsel of the Department of Defense.
(4) Prosecutors and Assistant Prosecutors: Prosecutors and
Assistant Prosecutors shall report to the Chief Prosecutor and then to
the Deputy General Counsel (Legal Counsel) of the Department of
Defense.
(5) Chief Defense Counsel: The Chief Defense Counsel shall report
to the Deputy General Counsel (Personnel and Health Policy) of the
Department of Defense and then to the General Counsel of the Department
of Defense.
(6) Detailed Defense Counsel: Detailed Defense Counsel shall report
to the Chief Defense Counsel and then to the Deputy General Counsel
(Personnel and Health Policy) of the Department of Defense.
(7) Review Panel members: Members of the Review Panel shall report
to the Secretary of Defense.
(8) Commission members: Commission members shall continue to report
to their parent commands. The consideration or evaluation of the
performance of duty as a member of a military commission is prohibited
in preparing effectiveness, fitness, or evaluation reports of a
commission member.
(9) Other personnel: All other military commission personnel, such
as court reporters, interpreters, security personnel, bailiffs, and
clerks detailed or employed by the Appointing Authority pursuant to 32
CFR 9.4(d), if not assigned to the Office of the Chief Prosecutor or
the Office of the Chief Defense Counsel, shall report to the Appointing
Authority or his designee.
(b) Responsibilities of supervisory/reporting officials. Officials
designated in this part as supervisory/reporting officials shall:
(1) Supervise subordinates in the performance of their duties.
(2) Prepare fitness or performance evaluation reports and, as
appropriate, process awards and citations for subordinates. To the
extent practicable, a reporting official shall comply with the rated
subordinate's Military Service regulations regarding the preparation of
fitness or performance evaluation reports and in executing related
duties.

Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16383 Filed 6-26-03; 12:40 pm]

BILLING CODE 5001-08-P

Sentencing

[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39395-39396]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-27]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 16

Sentencing

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule promulgates policy, assigns responsibilities, and
prescribes procedures for matters related to sentencing of persons with
regard to whom a finding of guilty is entered for an offense referred
for trial by a military commission appointed pursuant to regulations on
Procedures for Trials by Military Commission of Certain Non-United
States Citizens in the War Against Terrorism, and Military Order of
November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism.''

EFFECTIVE DATE: April 30, 2003.

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

SUPPLEMENTARY INFORMATION: Although exempt from administrative
procedures for rule making, 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 16 is as a military function
of the United States and exempt from administrative procedures for rule
making.

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

It has been certified that 32 CFR part 16 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 16 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)

[[Page 39396]]

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

It has been certified that 32 CFR part 16 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 16 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 16

Military law.

0
Accordingly, 32 CFR part 16 is added to Subtitle A, Chapter I,
Subchapter B to read as follows:

PART 16--SENTENCING

Sec.
16.1 Purpose.
16.2 Authority.
16.3 Available sentences.
16.4 Sentencing procedures.

Authority: 10 U.S.C. 113(d) and 140(b).

Sec. 16.1 Purpose.

This part promulgates policy, assigns responsibilities, and
prescribes procedures for matters related to sentencing of persons with
regard to whom a finding of guilty is entered for an offense referred
for trial by a military commission appointed pursuant to 32 CFR part 9
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).

Sec. 16.2 Authority.

This part is issued pursuant to 32 CFR 9.7(a) and in accordance
with Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism,'' and 10
U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are
applicable to this part.

Sec. 16.3 Available sentences.

(a) General. 32 CFR part 9 permits a military commission wide
latitude in sentencing. Any lawful punishment or condition of
punishment is authorized, including death, so long as the prerequisites
detailed in 32 CFR part 9 are met. Detention associated with an
individual's status as an enemy combatant shall not be considered to
fulfill any term of imprisonment imposed by a military commission. The
sentence determination should be made while bearing in mind that there
are several principal reasons for a sentence given to those who violate
the law. Such reasons include: punishment of the wrongdoer; protection
of society from the wrongdoer; deterrence of the wrongdoer and those
who know of his crimes and sentence from committing the same or similar
offenses; and rehabilitation of the wrongdoer. In determining an
appropriate sentence, the weight to be accorded any or all of these
reasons rests solely within the discretion of commission members. All
sentences should, however, be grounded in a recognition that military
commissions are a function of the President's war-fighting role as
Commander-in-Chief of the Armed Forces of the United States and of the
broad deterrent impact associated with a sentence's effect on adherence
to the laws and customs of war in general.
(b) Conditions of imprisonment. Decisions regarding the location
designated for any imprisonment, the conditions under which a sentence
to imprisonment is served, or the privileges accorded one during any
period of imprisonment should generally not be made by the commission.
Those decisions and actions, however, may be appropriate subjects for
recommendation to the person making a final decision on the sentence in
accordance with of 32 CFR 9.6(h).
(c) Prospective recommendations for sentence modification. A
sentence imposed by military commission may be accompanied by a
recommendation to suspend, remit, commute or otherwise modify the
adjudged sentence in concert with one or more conditions upon which the
suspension, remission, commutation, or other modification is contingent
(usually relating to the performance, behavior or conduct of the
Accused). Unless otherwise directed, a decision or action in accordance
with such a recommendation will be effected by direction or delegation
to the Appointing Authority by the official making a final decision on
the sentence in accordance with of 32 CFR 9.6(h).

Sec. 16.4 Sentencing procedures.

(a) General. 32 CFR part 9 permits the military commission
substantial discretion regarding the conduct of sentencing proceedings.
Sentencing proceedings should normally proceed expeditiously. In the
discretion of the Presiding Officer, as limited by the Appointing
Authority, reasonable delay between the announcement of findings and
the commencement of sentencing proceedings may be authorized to
facilitate the conduct of proceedings in accordance with of 32 CFR
9.6(b).
(b) Information relevant to sentencing. 32 CFR 9.6(e)(10) permits
the Prosecution and Defense to present information to aid the military
commission in determining an appropriate sentence. Such information may
include a recommendation of an appropriate sentence, information
regarding sentence ranges for analogous offenses (e.g., the sentencing
range under the Federal Sentencing Guidelines that could be applicable
to the Accused for the most analogous federal offenses), and other
relevant information. Regardless of any presentation by the Prosecution
or Defense, the military commission shall consider any evidence
admitted for consideration prior to findings regarding guilt. The
Presiding Officer may limit or require the presentation of certain
information consistent with 32 CFR part 9 and Military Order of
November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism'.
(c) Cases involving plea agreements. In accordance with 32 CFR
9.6(a)(4), after determining the voluntary and informed nature of a
plea agreement approved by the Appointing Authority, the military
commission is bound to adjudge findings and a sentence pursuant to that
plea agreement. Accordingly, the Presiding Officer may exercise the
authority granted in of 32 CFR 9.6(e) to curtail or preclude the
presentation of information and argument relative to the military
commission's determination of an appropriate sentence.
(d) Special duties. In cases involving plea agreements or
recommendations for certain conditions of imprisonment or prospective
sentence modification, the Prosecution and Defense shall provide
whatever post-trial information or recommendation as is relevant to any
subsequent decision regarding such condition or suspension, remission,
commutation, or other modification recommendation associated with the
sentence.

Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16384 Filed 6-26-03; 12:40 pm]

BILLING CODE 5001-08-P

Admistrative procedures

[Federal Register: July 1, 2003 (Volume 68, Number 126)]
[Rules and Regulations]
[Page 39397-39398]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01jy03-28]

[[Page 39397]]

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 17

Administrative Procedures

AGENCY: Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule promulgates policy, assigns responsibilities, and
prescribes procedures for the conduct of trials by a military
commission appointed pursuant to regulations on Procedures for Trials
by Military Commission of Certain Non-United States Citizens in the War
Against Terrorism, and Military Order of November 13, 2001,
``Detention, Treatment, and Trial of Certain Non-Citizens in the War
Against Terrorism'.

EFFECTIVE DATE: April 30, 2003.

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

SUPPLEMENTARY INFORMATION: Although exempt from administrative
procedures for rule making, 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 17 is as a military function
of the United States and exempt from administrative procedures for rule
making.

Executive Order 12866, ``Regulatory Planning and Review'

It has been certified that 32 CFR part 17 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 17 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)

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

It has been certified that 32 CFR part 17 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 17 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 17

Military law.

0
Accordingly, 32 CFR part 17 is added to Subtitle A, Chapter I,
Subchapter B to read as follows:

PART 17--ADMINISTRATIVE PROCEDURES

Sec.
17.1 Purpose.
17.2 Authority.
17.3 Commission personnel.
17.4 Interlocutory questions.
17.5 Implied duties of the presiding officer.
17.6 Disclosures.

Authority: 10 U.S.C. 113(d) and 140(b).

Sec. 17.1 Purpose.

This part promulgates policy, assigns responsibilities, and
prescribes procedures for the conduct of trials by a military
commission appointed pursuant to 32 CFR part 9 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).

Sec. 17.2 Authority.

This part is issued pursuant to 32 CFR 9.7(a) and in accordance
with Military Order of November 13, 2001, ``Detention, Treatment, and
Trial of Certain Non-Citizens in the War Against Terrorism,'' and 10
U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are
applicable to this part.

Sec. 17.3 Commission personnel.

(a) Appointment and removal of Commission members. (1) In
accordance with 32 CFR part 9, the Appointing Authority shall appoint
at least three but no more than seven members and one or two alternate
members. The Appointing Authority may remove members and alternate
members for good cause. In the event a member (or alternate member) is
removed for good cause, the Appointing Authority may replace the
member, direct that an alternate member serve in the place of the
original member, direct that proceedings simply continue without the
member, or convene a new commission. In the absence of guidance from
the Appointing Authority regarding replacement, the Presiding Officer
shall select an alternate member to replace the member in question.
(2) The Presiding Officer shall determine if it is necessary to
conduct or permit questioning of members (including the Presiding
Officer) on issues of whether there is good cause for their removal.
The Presiding Officer may permit questioning in any manner he deems
appropriate. Consistent with 32 CFR part 9, any such questioning shall
be narrowly focused on issues pertaining to whether good cause may
exist for the removal of any member.
(3) From time to time, it may be appropriate for a Presiding
Officer to forward to the Appointing Authority information and, if
appropriate, a recommendation relevant to the question of whether a
member (including the Presiding Officer) should be removed for good
cause. While awaiting the Appointing Authority's decision on such
matter, the Presiding Officer may elect either to hold proceedings in
abeyance or to continue. The Presiding Officer may issue any
appropriate instructions to the member whose continued service is in
question. A military commission shall not engage in deliberations on
findings or sentence prior to the Appointing Authority's decision in
any case in which the Presiding Officer has recommended a member's
removal.
(b) Military commission security officer. The Appointing Authority
may detail a Security Officer to advise a military commission on
matters related to classified and protected information. In addition to
any other duties assigned by the Appointing Authority, the Security
Officer shall ensure that all classified or protected evidence and
information is appropriately safeguarded at all times and that only
personnel with the appropriate clearances and authorizations are
present when classified or protected materials are presented before
military commissions.
(c) Other military commission personnel. The Appointing Authority
may detail court reporters, interpreters, security personnel, bailiffs,
clerks, and any other personnel to a military commission as deemed
necessary. In the absence of a detailing by the Appointing

[[Page 39398]]

Authority, the Chief Prosecutor shall be responsible to ensure the
availability of necessary or appropriate personnel to facilitate the
impartial and expeditious conduct of full and fair trials by military
commission.

Sec. 17.4 Interlocutory questions.

(a) Certification of interlocutory questions. The Presiding Officer
shall generally adjudicate all motions and questions that arise during
the course of a trial by military commission. In accordance with 32 CFR
9.4(a)(5)(iv), however, 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. In addition, the Presiding Officer may
certify other interlocutory questions to the Appointing Authority as
the Presiding Officer deems appropriate.
(b) Submission of interlocutory questions. The Presiding Officer
shall determine what, if any, documentary or other materials should be
forwarded to the Appointing Authority in conjunction with an
interlocutory question.
(c) Effect of interlocutory question certification on proceedings.
While decision by the Appointing Authority is pending on any certified
interlocutory question, the Presiding Officer may elect either to hold
proceedings in abeyance or to continue.

Sec. 17.5 Implied duties of the presiding officer.

The Presiding Officer shall ensure the execution of all ancillary
functions necessary for the impartial and expeditious conduct of a full
and fair trial by military commission in accordance with 32 CFR part 9.
Such functions include, for example, scheduling the time and place of
convening of a military commission, ensuring that an oath or
affirmation is administered to witnesses and military commission
personnel as appropriate, conducting appropriate in camera meetings to
facilitate efficient trial proceedings, and providing necessary
instructions to other commission members. The Presiding Officer shall
rule on appropriate motions or, at his discretion consistent with 32
CFR part 9, may submit them to the commission for decision or to the
Appointing Authority as a certified interlocutory question.

Sec. 17.6 Disclosures.

(a) General. Unless directed otherwise by the Presiding Officer
upon a showing of good cause or for some other reason, counsel for the
Prosecution and the Defense shall provide to opposing counsel, at least
one week prior to the scheduled convening of a military commission,
copies of all information intended for presentation as evidence at
trial, copies of all motions the party intends to raise before the
military commission, and names and contact information of all witnesses
a party intends to call. Motions shall also be provided to the
Presiding Officer at the time they are provided to opposing counsel.
Unless directed otherwise by the Presiding Officer, written responses
to any motions will be provided to opposing counsel and the Presiding
Officer no later than three days prior to the scheduled convening of a
military commission.
(b) Notifications by the prosecution. The Prosecution shall provide
the Defense with access to evidence known to the Prosecution that tends
to exculpate the Accused as soon as practicable, and in no instance
later than one week prior to the scheduled convening of a military
commission.
(c) Notifications by the defense. The Defense shall give notice to
the Prosecution of any intent to raise an affirmative defense to any
charge at least one week prior to the scheduled convening of a military
commission.
(d) Evidence related to mental responsibility. If the Defense
indicates an intent to raise a defense of lack of mental responsibility
or introduce expert testimony regarding an Accused's mental condition,
the prosecution may require that the Accused submit to a mental
examination by a military psychologist or psychiatrist, and both
parties shall have access to the results of that examination.

Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16385 Filed 6-26-03; 12:40 pm]

BILLING CODE 5001-08-P