text:
Page:United States Statutes at Large Volume 123.djvu/2598

 123STA T . 2 578PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9‘ ‘ (4)TheS e cr e ta r yofD efe ns e sha l l p rescr ib ere gu lations pro -v i d ing for the m anner in w hich trial counsel and military defense counsel are detailed for military commissions under this chapter and for the persons who are authori z ed to detail such counsel for such military commissions . ‘‘(b) T RIALCOUNSE L. — Sub j ect to subsection (e) , a trial counsel detailed for a military commission under this chapter shall be— ‘‘( 1 ) a judge advocate (as that term is defined in section 80 1 of this title (article 1 of the U niform Code of M ilitary J ustice)) who is— ‘‘( A ) a graduate of an accredited law school or a member ofthebarofa F ederal court or of the highest court of a State and ‘‘( B ) certified as competent to perform duties as trial counsel before general courts-martial by the Judge Advo- cate G eneral of the armed force of which such judge advo- cate is a member; or ‘‘( 2 ) a civilian who is— ‘‘(A) a member of the bar of a Federal court or of the highest court of a State; and ‘‘(B) otherwise q ualified to practice before the military commission pursuant to regulations prescribed by the Sec- retary of Defense. ‘‘(c) DE F ENSE COUNSEL.—(1) Subject to subsection (e), a military defense counsel detailed for a military commission under this chapter shall be a judge advocate (as so defined) who is— ‘‘(A) a graduate of an accredited law school or a member of the bar of a Federal court or of the highest court of a State; and ‘‘(B) certified as competent to perform duties as defense counsel before general courts-martial by the Judge Advocate General of the armed force of which such judge advocate is a member. ‘‘(2) The Secretary of Defense shall prescribe regulations for the appointment and performance of defense counsel in capital cases under this chapter. ‘‘(d) C H IEF P ROSE C U T OR; CHIEF DEFENSE COUNSEL.—(1) The Chief Prosecutor in a military commission under this chapter shall meet the requirements set forth in subsection (b)(1). ‘‘(2) The Chief Defense Counsel in a military commission under this chapter shall meet the requirements set forth in subsection (c)(1). ‘‘(e) I NELI G I B ILIT Y OF CERTAIN IN D I V IDUALS.— N o person who has acted as an investigator, military judge, or member of a military commission under this chapter in any case may act later as trial counsel or military defense counsel in the same case. No person who has acted for the prosecution before a military commission under this chapter may act later in the same case for the defense, nor may any person who has acted for the defense before a military commission under this chapter act later in the same case for the prosecution. ‘ ‘ §948l.Detai l or e mp lo y me n to f reporter s an d interpreters ‘‘(a) COURT R E P ORTERS.—Under such regulations as the Sec- retary of Defense may prescribe, the convening authority of a mili- tary commission under this chapter shall detail to or employ for the military commission qualified court reporters, who shall prepare Regulations. Regulations.


text:
Page:United States Statutes at Large Volume 123.djvu/2599

 123STA T . 2 579PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 averb a tim re co r d o f t h e p roceedi ngs of and testimon y ta k en before the mi l itary commission .‘ ‘ ( b )INTERP RETER S . —U nder s u ch regulations as the S ecretary of D efense may prescribe , the convening authority of a military commission under this chapter may detail to or employ for the military commission interpreters w ho shall interpret for the military commission, and, as necessary, for trial counsel and defense counsel for the military commission, and for the accused. ‘‘(c) T R A NS C R I PT EC O R D .—The transcript of a military commis - sion under this chapter shall be under the control of the convening authority of the military commission, who shall also be responsible for preparing the record of the proceedings of the military commis- sion. ‘ ‘ §948m.Nu m berof member s; e xc use of members; a bse nt an d add i tiona l members ‘‘(a) NUMB ERO FM EMBERS.—( 1 ) Ex cept as provided in para- graph ( 2 ), a military commission under this chapter shall have at least five members. ‘‘(2) In a case in which the accused before a military commission under this chapter may be sentenced to a penalty of death, the military commission shall have the number of members prescribed by section 94 9m(c) of this title. ‘‘(b) E X CUSE OF MEMBERS.—No member of a military commis- sion under this chapter may be absent or excused after the military commission has been assembled for the trial of a case unless excused— ‘‘(1) as a result of challenge; ‘‘(2) by the military j udge for physical disability or other good cause; or ‘‘( 3 ) by order of the convening authority for good cause. ‘‘(c) A BSENT AND ADDITIONA L MEMBERS.— W henever a military commission under this chapter is reduced below the number of members re q uired by subsection (a), the trial may not proceed unless the convening authority details new members sufficient to provide not less than such number. The trial may proceed with the new members present after the recorded evidence previously introduced before the members has been read to the military commission in the presence of the military judge, the accused (except as provided in section 949d of this title), and counsel for both sides. ‘‘SU BCH A P TER III—PRE-TRIA L PR O CEDURE ‘ ‘ Sec. ‘‘ 948q . Charg e s a nd s p ec if ica t i o ns. ‘‘948r. Ex c lu sion of state m ents o b tained b y torture or cruel , inhuman, or degrading treatment prohibition of self - incrimination; admission of other state- ments of the accused. ‘‘948s. Ser v ice of charges. ‘‘§ 948 q. Ch ar g esands p ecifications ‘‘(a) C H AR G ES AND SPECIFICATIONS.—Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 4 7 of this title under oath before a commissioned officer of the armed forces author- i z ed to administer oaths and shall state— ‘‘(1) that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and
 * R

license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:United States Statutes at Large Volume 123.djvu/2600

 123STA T . 2 580PUBLIC LA W 111 – 8 4—O CT. 28 , 200 9‘ ‘ (2)tha t suc h m att er s are true inf act t o the b est of the si g ner ’ s k no wl e d ge and belief . ‘‘(b) NOTICE TO A CC US E D . —Up on the swearing of the charges and specifications in accordance with subsection (a) , the accused shall be informed of the charges and specifications against the accused as soon as practicable. ‘ ‘ §948r.Exclusion o f s ta t em ents o b taine d b y torture or cruel , in h uman, or de g rading treatment rohibition of self - incrimination; admission of other statements of the accused ‘‘(a) EX C L USIO N O FS T A TE M ENTS OB TAIN B YT O R TURE OR C RUEL, I N H UMAN, OR D E G RADING TREATMENT.—No statement obtained b y the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 10 0 3 of the Detainee Treatment Act of 200 5 ( 4 2 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, e x cept against a person accused of torture or such treatment as e v idence that the statement was made. ‘‘(b) SELF - INCRIMINATION P ROHIBITED.—No person shall be re q uired to testify against himself or herself at a proceeding of a military commission under this chapter. ‘‘(c) OTHER STATEMENTS OF THE ACCUSED.—A statement of the accused may be admitted in evidence in a military commission under this chapter only if the military j udge finds— ‘‘(1) that the totality of the circumstances renders the state- ment reliable and possessing sufficient probative value and ‘‘(2) that— ‘‘(A) the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the state- ment into evidence; or ‘‘( B ) the statement was voluntarily given. ‘‘(d) DETERMINATION OF V OLUNTARINESS.—In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge shall consider the totality of the cir- cumstances, including, as appropriate, the following ‘‘(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during hostilities. ‘‘(2) The characteristics of the accused, such as military training, age, and education level. ‘‘(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused. ‘‘§ 948s. S er v ice of charges ‘‘The trial counsel assigned to a case before a military commis- sion under this chapter shall cause to be served upon the accused and military defense counsel a copy of the charges upon which trial is to be had in English and, if appropriate, in another language that the accused understands, sufficiently in advance of trial to prepare a defense.
 * p


text:
Page:United States Statutes at Large Volume 123.djvu/2601

 123STA T . 2 58 1 PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9‘ ‘ SUBCHAPTERIV— TRIA L PR O CE D URE ‘ ‘ Sec. ‘‘ 94 9 a. Rul e s . ‘‘949 b. Un la wf ull yi nfluencin g ac t i o nof m ilita r y commission an d United States C ourt of M ilitary Commission Re v iew. ‘‘949c. D uties of trial counsel and defense counsel. ‘‘949d. Sessions. ‘‘949e. Continuances. ‘‘949f. C h allenges. ‘‘949g. O aths. ‘‘949h. F ormer j eo p ardy. ‘‘949i. P leas of the accused. ‘‘949j. Opportunity to obtain witnesses and other evidence. ‘‘949 k . Defense of lack of mental responsibility. ‘‘949l. V oting and rulings. ‘‘949m. N umber of votes re q uired. ‘‘949n. Military commission to announce action. ‘‘949o. Record of trial. ‘ ‘ §94 9 a.Rules ‘‘ (a) P ROCEDU RE SAN DRU L ESO F E VI DENCE . —P ret r i a l, trial, a ndpos t - trial pro c ed u res, includin g ele m ents and modes o f proof, for cases tria b leb y military commission under t h is chapter may be prescribed by the Secretary of Defense. Such procedures may not be contrary to or inconsistent w ith this chapter. E x cept as otherwise pro v ided in this chapter or chapter 47 of this title, the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter. ‘‘(b) E X CE PT IONS.—( 1 ) In trials by military commission under this chapter, the Secretary of Defense, in consultation with the Attorney G eneral, may ma k e such exceptions in the applicability of the procedures and rules of evidence otherwise applicable in general courts-martial as may be re q uired by the unique cir- cumstances of the conduct of military and intelligence operations during hostilities or by other practical need consistent with this chapter. ‘‘( 2 ) N otwithstanding any exceptions authori z ed by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights of the accused ‘‘(A) To present evidence in the accused ’ s defense, to cross- examine the witnesses who testify against the accused, and to examine and respond to all evidence admitted against the accused on the issue of guilt or innocence and for sentencing, as provided for by this chapter. ‘‘(B) To be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 9 49d of this title. ‘‘(C)(i) W hen none of the charges preferred against the accused are capital, to be represented before a military commis- sion by civilian counsel if provided at no expense to the Govern- ment, and by either the defense counsel detailed or the military counsel of the accused’s own selection, if reasonably available. ‘‘(ii) When any of the charges preferred against the accused are capital, to be represented before a military commission in accordance with clause (i) and, to the greatest extent prac- ticable, by at least one additional counsel who is learned in applicable law relating to capital cases and who, if necessary, may be a civilian and compensated in accordance with regula- tions prescribed by the Secretary of Defense. Ap p licab ili ty.


text:
Page:United States Statutes at Large Volume 123.djvu/2602

 123STA T . 2 58 2 PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9‘ ‘ (D)Toself-r e p rese nta t i on , ift h ea c c u se dk no w in g l y and co m petently wai v es the assistance of counsel, su bj ect to the provisions of paragraph ( 4 ) . ‘‘( E ) To the suppression of evidence that is not reliable or probative. ‘‘( F ) To the suppression of evidence the probative value of which is substantially outweighed by — ‘‘(i) the danger of unfair prejudice, confusion of the issues, or misleading the members or ‘‘(ii) considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ‘‘( 3 ) I n making e x ceptions in the applicability in trials by mili- tary commission under this chapter from the procedures and rules otherwise applicable in general courts-martial, the S ecretary of Defense may provide the following ‘‘( A ) Evidence sei z ed outside the U nited States shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or authorization. ‘‘( B ) A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 9 4 8 r of this title. ‘‘( C ) Evidence shall be admitted as authentic so long as— ‘‘(i) the military judge of the military commission deter- mines that there is sufficient evidence that the evidence is what it is claimed to be; and ‘‘(ii) the military judge instructs the members that they may consider any issue as to authentication or identi- fication of evidence in determining the weight, if any, to be given to the evidence. ‘‘(D) H earsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission only if— ‘‘(i) the proponent of the evidence makes known to the adverse party, sufficiently in advance to provide the adverse party with a fair opportunity to meet the evidence, the proponent ’ s intention to offer the evidence, and the particulars of the evidence (including information on the circumstances under which the evidence was obtained); and ‘‘(ii) the military judge, after taking into account all of the circumstances surrounding the taking of the state- ment, including the degree to which the statement is corroborated, the indicia of reliability within the statement itself, and whether the will of the declarant was overborne, determines that— ‘‘(I) the statement is offered as evidence of a mate- rial fact; ‘‘(II) the statement is probative on the point for which it is offered; ‘‘(III) direct testimony from the witness is not available as a practical matter, taking into consider- ation the physical location of the witness, the uni q ue circumstances of military and intelligence operations during hostilities, and the adverse impacts on military Det e rmina ti o n .


text:
Page:United States Statutes at Large Volume 123.djvu/2603

 123STA T . 2 58 3 PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9orintel li g en c eo p er a tion s t h at w o u l d li k el y result f ro m the production of the witness and ‘ ‘ (IV) the general purposes of the rules of e v idence and the interests of j ustice will b est be served by admission of the statement into evidence . ‘‘( 4 )( A ) T he accused in a military commission under this chapter who e x ercises the right to self - representation under paragraph ( 2 )( D ) shall conform the accused ’ s deportment and the conduct of the defense to the rules of evidence , procedure, and decorum applicable to trials by military commission. ‘‘( B ) F ailure of the accused to conform to the rules described in subparagraph (A) may result in a partial or total revocation by the military judge of the right of self-representation under para- graph (2)(D). In such case, the military counsel of the accused or an appropriately authori z ed civilian counsel shall perform the functions necessary for the defense. ‘‘(c) D EL E GATION O F A U T H O R IT Y TO P RE SC RI B E R EGULATIONS. — The S ecretary of Defense may delegate the authority of the Sec- retary to prescribe regulations under this chapter. ‘‘(d) N OTICE TO C ONGRESS OF M O D IFICATION OF RULES.—Not later than 60 days before the date on which any proposed modifica- tion of the rules in effect for military commissions under this chapter goes into effect, the Secretary of Defense shall submit to the Committee on Armed Services of the Senate and the Com- mittee on Armed Services of the H ouse of Representatives a report describing the proposed modification. ‘ ‘ §94 9 b.Unlawfu ll yi nflu e n c in g ac t i o nof m ilita r y commi s sion an d United S tates C ourt of M ilitary Commission R e v iew ‘‘(a) MILITARY CO M MISSIONS.—( 1 ) No authority convening a mili- tary commission under this chapter may censure, reprimand, or admonish the military commission, or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the military commission, or with respect to any other exercises of its or their functions in the conduct of the proceedings. ‘‘(2) No person may attempt to coerce or, by any unauthorized means, influence— ‘‘(A) the action of a military commission under this chapter, or any member thereof, in reaching the findings or sentence in any case; ‘‘(B) the action of any convening, approving, or reviewing authority with respect to their judicial acts; or ‘‘(C) the exercise of professional judgment by trial counsel or defense counsel. ‘‘( 3 ) The provisions of this subsection shall not apply with respect to— ‘‘(A) general instructional or informational courses in mili- tary justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of military commissions; or ‘‘(B) statements and instructions given in open proceedings by a military judge or counsel. ‘‘(b) U NITED STATES COURT OF MILITARY COMMISSION RE V IE W .— (1) No person may attempt to coerce or, by any unauthorized means, influence— Deadlin e .R e ports .


text:
Page:United States Statutes at Large Volume 123.djvu/2604

 123STA T . 2 584PUBLIC LA W 111 – 84 —O CT. 28 , 2 0 0 9‘ ‘ (A)theac t ion o f a m i l ita ry a p pellate judg e or other duly appointed judge under thi s chapter on the U nited S tates C ourt of M ilitary Commissions R e v ie w in reaching a decision on the findings or sentence on appeal in any case or ‘‘( B )thee x ercise of professional judgment b y trial counsel or defense counsel appearing before the United States Court of Military Commission Review . ‘‘( 2 ) N o person may censure , reprimand, or admonish a military appellate judge on the United States Court of Military Commission Review, or counsel thereof, with respect to any exercise of their functions in the conduct of proceedings under this chapter. ‘‘( 3 ) T he provisions of this subsection shall not apply with respect to — ‘‘(A) general instructional or informational courses in mili - tary justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of military commissions; or ‘‘(B) statements and instructions given in open proceedings by an appellate military judge or a duly appointed appellate judge on the United States Court of Military Commission Review, or counsel. ‘‘( 4 ) No appellate military judge on the United States Court of Military Commission Review may be reassigned to other duties, except under circumstances as follows ‘‘(A) The appellate military judge voluntarily re q uests to be reassigned to other duties and the Secretary of D efense, or the designee of the Secretary, in consultation with the J udge Advocate G eneral of the armed force of which the appellate military judge is a member, approves such reassignment. ‘‘(B) The appellate military judge retires or otherwise sepa- rates from the armed forces. ‘‘(C) The appellate military judge is reassigned to other duties by the Secretary of Defense, or the designee of the Secretary, in consultation with the Judge Advocate General of the armed force of which the appellate military judge is a member, based on military necessity and such reassignment is consistent with service rotation regulations (to the extent such regulations are applicable). ‘‘(D) The appellate military judge is withdrawn by the Secretary of Defense, or the designee of the Secretary, in con- sultation with the Judge Advocate General of the armed force of which the appellate military judge is a member, for good cause consistent with applicable procedures under chapter 4 7 of this title (the Uniform Code of Military Justice). ‘‘(c) PROHIB I T IO N ON CON S I DE R A TION O F A C TIONS ON CO M MIS- SION IN EV A LU ATION OF F ITNESS.— I n the preparation of an effective- ness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a commissioned officer of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of any such officer or whether any such officer should be retained on active duty, no person may— ‘‘( 1 ) consider or evaluate the performance of duty of any member of a military commission under this chapter; or ‘‘(2) give a less favorable rating or evaluation to any commissioned officer because of the z eal with which such officer,


text:
Page:United States Statutes at Large Volume 123.djvu/2605

 123STA T . 2 58 5 PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9inact in g a s c ou ns el,r e p resente d an y accused b e f ore a m ilitary commission under t h is chapter .‘ ‘ §94 9 c.Dutiesof t r i al cou n sel an d defense counsel ‘ ‘ ( a )TRIALCOUNSE L. — The trial counsel of a military commis - sion under this chapter shall prosecute in the name of the U nited S tates. ‘‘(b) D E F ENSE COUNSEL.—( 1 ) The accused shall be represented in the accused ’ s defense before a military commission under this chapter as pro v ided in this subsection. ‘‘( 2 ) The accused may be represented by military counsel detailed under section 948k of this title or by military counsel of the accused’s o w n selection, if reasonably available. ‘‘( 3 ) The accused may be represented by civilian counsel if retained by the accused, provided that such civilian counsel— ‘‘( A ) is a United States citi z en ‘‘( B ) is admitted to the practice of law in a State, district, or possession of the United States, or before a F ederal court; ‘‘(C) has not been the sub j ect of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct; ‘‘(D) has been determined to be eligible for access to information classified at the level Secret or higher; and ‘‘( E ) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings. ‘‘(4) I f the accused is represented by civilian counsel, military counsel shall act as associate counsel. ‘‘( 5 ) The accused is not entitled to be represented by more than one military counsel. H owever, the person authorized under regulations prescribed under section 948k of this title to detail counsel, in such person’s sole discretion, may detail additional mili- tary counsel to represent the accused. ‘‘( 6 ) Defense counsel may cross-e x amine each witness for the prosecution who testifies before a military commission under this chapter. ‘‘( 7 ) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protec- tion of classified information, and may not divulge such information to any person not authorized to receive it. ‘‘§ 949d. S essions ‘‘(a) SESSIONS W I TH OUT P RESEN C EOF M E MB ERS.—(1) At any time after the service of charges which have been referred for trial by military commission under this chapter, the military judge may call the military commission into session without the presence of the members for the purpose of— ‘‘(A) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty; ‘‘(B) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members; ‘‘(C) if permitted by regulations prescribed by the Secretary of Defense, receiving the pleas of the accused; and Regulations.


text:
Page:United States Statutes at Large Volume 123.djvu/2606

 123STA T . 2 586PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9‘ ‘ (D)perfo r minga n y o th er pro c e du ra l function w hich may b e performed by the military j udge under thi s chapter or under rules prescribed pursuant to section 94 9a of this title and which does not re q uire the presence of the members . ‘‘( 2 ) Ex cept as pro v ided in subsections (b) , (c), and (d), any proceedings under paragraph ( 1 ) shall be conducted in the presence of the accused, defense counsel, and trial counsel, and shall be made part of the record. ‘‘(b) D ELIB E RAT I ON OR V OTE O FM E M BER S . —W hen the members of a military commission under this chapter deliberate or vote, only the members may be present. ‘‘(c) C LOS U RE OF P RO C EE D IN G S.—(1) T he military judge may close to the public all or part of the proceedings of a military commission under this chapter. ‘‘(2) The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon ma k ing a specific finding that such closure is necessary to— ‘‘( A ) protect information the disclosure of which could reasonably be expected to cause damage to the national secu - rity, including intelligence or law enforcement sources, methods, or activities or ‘‘( B ) ensure the physical safety of individuals. ‘‘( 3 ) A finding under paragraph (2) may be based upon a presen- tation, including a presentation ex parte or in camera, by either trial counsel or defense counsel. ‘‘(d) E X CLUSION OF ACCUSED F ROM CERTAIN PROCEEDINGS.— The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom— ‘‘(1) to ensure the physical safety of individuals; or ‘‘(2) to prevent disruption of the proceedings by the accused. ‘ ‘ §94 9 e.Conti n ua n c e s ‘‘The military judge in a military commission under this chapter may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just. ‘‘§ 949 f .C h a l len g es ‘‘(a) C H ALLENGES AUTHORI Z ED.—The military judge and mem- bers of a military commission under this chapter may be challenged by the accused or trial counsel for cause stated to the military commission. The military judge shall determine the relevance and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by trial counsel shall ordinarily be presented and decided before those by the accused are offered. ‘‘(b) PEREM P TOR Y CHALLENGES.—The accused and trial counsel are each entitled to one peremptory challenge, but the military judge may not be challenged except for cause. ‘‘(c) CHALLENGES AGAINST ADDITIONAL MEMBERS.—Whenever additional members are detailed to a military commission under this chapter, and after any challenges for cause against such addi- tional members are presented and decided, the accused and trial counsel are each entitled to one peremptory challenge against mem- bers not previously subject to peremptory challenge. Det e rmina ti o n . Determination. R e c or ds .


text:
Page:United States Statutes at Large Volume 123.djvu/2607

 123STA T . 2 587PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9‘ ‘ §94 9 g.Oaths‘ ‘ (a)INGE NE RAL.— ( 1 ) Befor e p erfor mingth eir re s pe c ti v e du ties inami l itar y commission under this chapter , military j udges, mem -b ers, trial counsel, defense counsel, reporters, and interpreters shall ta k e an oath to perform their duties faithfully. ‘‘( 2 ) T he form of the oath re q uired by paragraph (1), the time and place of the taking thereof, the manner of recording thereof, and w hether the oath shall be taken for all cases in which duties are to be performed or for a particular case, shall be as provided in regulations prescribed by the S ecretary of D efense. The regula- tions may provide that— ‘‘( A ) an oath to perform faithfully duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty and ‘‘(B) if such an oath is taken, such oath need not again be taken at the time the judge advocate or other person is detailed to that duty. ‘‘(b) WIT NE S SES.— E ach witness before a military commission under this chapter shall be e x amined on oath. ‘‘(c) O AT H DE F INE D .—In this section, the term ‘oath ’ includes an affirmation. ‘‘§ 949h. Forme r j eo p ar dy ‘‘(a) IN GENERAL.— N o person may, without the person’s consent, be tried by a military commission under this chapter a second time for the same offense. ‘‘(b) S COP E OF TRIAL.—No proceeding in which the accused has been found guilty by military commission under this chapter upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed. ‘‘§ 949 i. Pl eas o f the a c c u sed ‘‘(a) P LEAOFNOTG U ILT Y .—If an accused in a military commis- sion under this chapter after a plea of guilty sets up matter incon- sistent with the plea, or if it appears that the accused has entered the plea of guilty through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the military commis- sion shall proceed as though the accused had pleaded not guilty. ‘‘(b) F INDIN G OF GUILT AFTER GUILTY PLEA.—With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the military commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty. ‘‘§ 949j. Opportu n itytoo b tain w itnesses and other e v idence ‘‘(a) IN GENERAL.—(1) Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense. The opportunity to obtain witnesses and evidence shall be comparable to the opportunity available to Regulations. Regulations.


text:
Page:United States Statutes at Large Volume 123.djvu/2608

 123STA T . 2 58 8 PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 0 9acrim i n a ldef endan t inac ou rtoft h e U nited S tate s under article I II of the C onstitution .‘ ‘ (2)P rocess issued in militar y commissions under this cha p ter to compel w itnesses to appear and testify and to compel the produc - tion of other e v idence — ‘‘( A ) shall b e similar to that which courts of the United States havin g criminal j urisdiction may lawfully issue and ‘‘( B ) shall run to any place where the United States shall have jurisdiction thereof. ‘‘(b) DISCLO S URE O FEX CUL PAT OR Y E V I D E N CE.—( 1 )Assoonas practicable , trial counsel in a military commission under this chapter shall disclose to the defense the e x istence of any evidence that reasonably tends to— ‘‘(A) negate the guilt of the accused of an offense charged; or ‘‘(B) reduce the degree of guilt of the accused with respect to an offense charged. ‘‘(2) T he trial counsel shall, as soon as practicable, disclose to the defense the existence of evidence that reasonably tends to impeach the credibility of a witness whom the government intends to call at trial. ‘‘( 3 ) The trial counsel shall, as soon as practicable upon a finding of guilt, disclose to the defense the existence of evidence that is not subject to paragraph (1) or paragraph (2) but that reasonably may be viewed as mitigation evidence at sentencing. ‘‘( 4 ) The disclosure obligations under this subsection encompass evidence that is k nown or reasonably should be known to any government officials who participated in the investigation and prosecution of the case against the defendant. ‘ ‘ §94 9 k.Def e ns e o f lac kof m en t al r es p ons ib ilit y ‘‘(a) AFFIR M ATIVE DEFENSE.—It is an affirmative defense in a trial by military commission under this chapter that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and q uality or the wrongfulness of the acts. M ental disease or defect does not otherwise constitute a defense. ‘‘(b) BURDEN OF PROOF.—The accused in a military commission under this chapter has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. ‘‘(c) F INDIN G S FOLLO W ING ASSERTION OF DEFENSE.— W henever lack of mental responsibility of the accused with respect to an offense is properly at issue in a military commission under this chapter, the military judge shall instruct the members as to the defense of lack of mental responsibility under this section and shall charge the members to find the accused— ‘‘(1) guilty; ‘‘(2) not guilty; or ‘‘(3) subject to subsection (d), not guilty by reason of lack of mental responsibility. ‘‘(d) MA J ORITY V OTE R E Q UIRED FOR FINDING.—The accused shall be found not guilty by reason of lack of mental responsibility under subsection (c)(3) only if a majority of the members present at the time the vote is taken determines that the defense of lack of mental responsibility has been established. Det e rmina ti o n .


text:
Page:United States Statutes at Large Volume 123.djvu/2609

 123STA T . 2 589PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 09 ‘ ‘ §94 9 l.Votinga n dru ling s‘ ‘ (a)VOTEBYS E CR ET W R I TTE NBAL LOT .— V otingbyme mbe rs o f ami l itary c ommission u n d ert h is cha p ter on the findings and on the sentence shall be by secret w ritten ballot. ‘‘(b) RU LIN GS .—( 1 ) T he military j udge in a military commission under this chapter shall rule upon all q uestions of law , including the admissibility of e v idence and all interlocutory questions arising during the proceedings. ‘‘( 2 ) A ny ruling made by the military judge upon a question of law or an interlocutory question (other than the factual issue of mental responsibility of the accused) is conclusive and constitutes the ruling of the military commission. H owever, a military judge may change such a ruling at any time during the trial. ‘‘(c) I NSTRUCTIONS P RIOR TO VOTE.—Before a vote is ta k en of the findings of a military commission under this chapter, the military judge shall, in the presence of the accused and counsel, instruct the members as to the elements of the offense and charge the members— ‘‘(1) that the accused must be presumed to be innocent until the accused ’ s guilt is established by legal and competent evidence beyond a reasonable doubt ‘‘(2) that in the case being considered, if there is a reason - able doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and the accused must be acquitted; ‘‘( 3 ) that, if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and ‘‘( 4 ) that the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the U nited States. ‘‘§ 949 m. N um be ro fv otes re q uired ‘‘(a) C ON V ICTION.— N o person may be convicted by a military commission under this chapter of any offense, e x cept as provided in section 9 49i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken. ‘‘(b) SENTENCES.—(1) E xcept as provided in paragraphs (2) and (3), sentences shall be determined by a military commission by the concurrence of two-thirds of the members present at the time the vote is taken. ‘‘(2) No person may be sentenced to death by a military commis- sion, except insofar as— ‘‘(A) the penalty of death has been expressly authori z ed under this chapter, chapter 4 7 of this title, or the law of war for an offense of which the accused has been found guilty; ‘‘(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial; ‘‘(C) the accused was convicted of the offense by the concur- rence of all the members present at the time the vote is taken; and ‘‘( D ) all members present at the time the vote was taken concurred in the sentence of death. ‘‘(3) No person may be sentenced to life imprisonment, or to confinement for more than 1 0 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken. Det e rmina ti o n .


text:
Page:United States Statutes at Large Volume 123.djvu/2610

 123STA T . 2 590PUBLIC LA W 111 –84—O CT. 28 , 2009 ‘ ‘ (c)NUMBEROFM EMBER SR E Q U I RE D FOR P E NALTY OF D EAT H.— ( 1 ) Ex c eptas p rovid edi n para g rap h ( 2 ), inacasein w hich the pena l t y o f death is so u ght, the nu mb er of members of the military commission under this chapter shall be not less than 12 members. ‘‘(2) I n any case described in paragraph (1) in which 12 members are not reasonably available for a military commission because of physical conditions or military exigencies, the convening authority shall specify a lesser number of members for the military commis - sion (but not fewer than 9 members), and the military commission may be assembled, and the trial held, with not less than the number of members so specified. In any such case, the convening authority shall ma k e a detailed written statement, to be appended to the record, stating why a greater number of members were not reasonably available. ‘ ‘ §94 9 n.Mil i tarycom mi s sion to anno u nc e action ‘‘ A military commission under this chapter shall announce its findings and sentence to the parties as soon as determined. ‘‘§ 949o. R ecor d o f trial ‘‘(a) RE C ORD AUTHENTICATION.—Each military commission under this chapter shall keep a separate, verbatim, record of the proceedings in each case brought before it, and the record shall be authenticated by the signature of the military j udge. If the record cannot be authenticated by the military judge by reason of death, disability, or absence, it shall be authenticated by the signature of the trial counsel or by a member of the commission if the trial counsel is unable to authenticate it by reason of death, disability, or absence. W here appropriate, and as provided in regula- tions prescribed by the S ecretary of Defense, the record of a military commission under this chapter may contain a classified annex. ‘‘(b) C OM P LETE RECORD REQUIRED.—A complete record of the proceedings and testimony shall be prepared in every military commission under this chapter. ‘‘(c) PRO V ISION OF COPY TO ACCUSED.—A copy of the record of the proceedings of the military commission under this chapter shall be given the accused as soon as it is authenticated. If the record contains classified information, or a classified annex, the accused shall receive a redacted version of the record consistent with the re q uirements of subchapter V of this chapter. Defense counsel shall have access to the unredacted record, as provided in regulations prescribed by the Secretary of Defense. ‘‘S UB C H AP T ER V—C L ASSI F IED INF O RMATION PROCEDURES ‘ ‘ Sec. ‘‘ 94 9 p–1 . Prot ect i o n o f c las sifie d infor m ation applica b ilit y ofs u bc h apter. ‘‘949p– 2 . Pretrial conference. ‘‘949p– 3 . Protecti v e orders. ‘‘949p–4. D iscovery of , and access to, classified information by the accused. ‘‘949p– 5 . N otice by accused of intention to disclose classified information. ‘‘949p– 6 . Procedure for cases involvin g classified information. ‘‘949p– 7 . I ntroduction of classified information into evidence. ‘‘§ 949 p–1 . P rotection of classified information applica b ility of subc h apter ‘‘(a) PROTECTION OF CLASSIFIED INFORMATION.—Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. Under Regulations.


text:
Page:United States Statutes at Large Volume 123.djvu/2611

 123STA T . 2 59 1 PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 nocir c umsta nc e sma y ami l itary j u dg e order t h e release o f classified information to any p erson not authori z ed to recei v e such informa - tion .‘ ‘ (b)AC C ES S TOEVID E N CE. — Any information admitted into evi- dence pursuant to any rule , procedure, or order by the military judge shall be provided to the accused. ‘‘(c) D EC LA SSI F ICATION.— T rial counsel shall w or k with the original classification authorities for evidence that may be used at trial to ensure that such evidence is declassified to the ma x imum extent possible, consistent with the re q uirements of national secu- rity. A decision not to declassify evidence under this section shall not be subject to review by a military commission or upon appeal. ‘‘(d) C ONST RU CTION OF P ROVISIONS.—The judicial construction of the Classified I nformation Procedures Act ( 18U . S .C. App.) shall be authoritative in the interpretation of this subchapter, except to the extent that such construction is inconsistent with the specific requirements of this chapter. ‘ ‘ §94 9 p–2.Pret r ialconf erence ‘‘(a) M OTION.—At any time after service of charges, any party may move for a pretrial conference to consider matters relating to classified information that may arise in connection with the prosecution. ‘‘(b) CONFERENCE.— F ollowing a motion under subsection (a), or sua sponte, the military judge shall promptly hold a pretrial conference. Upon request by either party, the court shall hold such conference ex parte to the extent necessary to protect classified information from disclosure, in accordance with the practice of the Federal courts under the Classified Information Procedures Act (18 U.S.C. App.). ‘‘(c) MATTERS TO B E ESTA B LIS H ED AT PRETRIAL CONFERENCE.— ‘‘(1) TI M IN G OF SUBSE Q UENT ACTIONS.—At the pretrial con- ference, the military judge shall establish the timing of— ‘‘(A) requests for discovery ‘‘(B) the provision of notice required by section 94 9p –5 of this title; and ‘‘(C) the initiation of the procedure established by sec- tion 949p– 6 of this title. ‘‘( 2 ) O THER MATTERS.—At the pretrial conference, the mili- tary judge may also consider any matter— ‘‘(A) which relates to classified information; or ‘‘(B) which may promote a fair and expeditious trial. ‘‘(d) EFFECT OF ADMISSIONS B Y ACCUSED AT PRETRIAL CON- FERENCE.— N o admission made by the accused or by any counsel for the accused at a pretrial conference under this section may be used against the accused unless the admission is in writing and is signed by the accused and by the counsel for the accused. ‘‘§ 949p– 3 . Protecti v eor d er s ‘‘Upon motion of the trial counsel, the military judge shall issue an order to protect against the disclosure of any classified information that has been disclosed by the United States to any accused in any military commission under this chapter or that has otherwise been provided to, or obtained by, any such accused in any such military commission.


text:
Page:United States Statutes at Large Volume 123.djvu/2612

 123STA T . 2 59 2 PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 ‘ ‘ §94 9 p– 4 .Discovery o f,and access t o,c l assified infor m ation b yt h e acc u sed ‘ ‘ (a)LIM I TA TI ONS ON D IS C O VERY OR A CCESS B YT H E ACC U SE D.— ‘‘( 1 ) DEC L ARATIONS BY THE UNITED STATES O F DAMA G ETO NATIONAL SECURITY.— In an yc a seb e for ea mil i t ary commission in wh ich the U nite dS tates see k s to delete , withhold, or other - wise obtain other relief with res p ect to the disco v ery of or access to any classified information, the trial co u nsel shall submit a declaration invokin g the United States ’ classified information privilege and setting forth the damage to the national security that the discovery of or access to such informa- tion reasonably could be e x pected to cause. T he declaration shall be signed by a knowledgeable United States official pos- sessing authority to classify information. ‘‘( 2 ) STANDARD FOR AUTHORI Z ATION OF DISCOVERY OR ACCESS.—Upon the submission of a declaration under para- graph (1), the military j udge may not authori z e the discovery of or access to such classified information unless the military judge determines that such classified information would be noncumulative, relevant, and helpful to a legally cognizable defense, rebuttal of the prosecution’s case, or to sentencing, in accordance with standards generally applicable to discovery of or access to classified information in F ederal criminal cases. If the discovery of or access to such classified information is authorized, it shall be addressed in accordance with the re q uirements of subsection (b). ‘‘(b) DISCOVERY OF C LASSIFIED INFORMATION.— ‘‘(1) SUBSTITUTIONS AND OTHER RELIEF.—The military judge, in assessing the accused’s discovery of or access to classi- fied information under this section, may authorize the United States— ‘‘(A) to delete or withhold specified items of classified information ‘‘( B ) to substitute a summary for classified information; or ‘‘(C) to substitute a statement admitting relevant facts that the classified information or material would tend to prove. ‘‘(2) EXP ARTE PRESENTATIONS.—The military judge shall permit the trial counsel to make a request for an authorization under paragraph (1) in the form of an ex parte presentation to the extent necessary to protect classified information, in accordance with the practice of the Federal courts under the Classified Information P rocedures Act (1 8 U.S.C. App.). If the military judge enters an order granting relief following such an ex parte showing, the entire presentation (including the text of any written submission, verbatim transcript of the ex parte oral conference or hearing, and any exhibits received by the court as part of the ex parte presentation) shall be sealed and preserved in the records of the military commission to be made available to the appellate court in the event of an appeal. ‘‘( 3 ) ACTION BY MILITARY J UDGE.—The military judge shall grant the request of the trial counsel to substitute a summary or to substitute a statement admitting relevant facts, or to provide other relief in accordance with paragraph (1), if the military judge finds that the summary, statement, or other


text:
Page:United States Statutes at Large Volume 123.djvu/2613

 123STA T . 2 59 3 PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 reli e fwou l dp ro v ide th e ac cu s ed with su b sta n tiall y the sa m e ability to ma k e a defense as would discovery of or access to the specific classified information .‘ ‘ ( c )RECONSID E RAT ION. —A n order of a military j ud g e author - i z ingare q uest of the trial counsel to substitute , summarize, with- hold, or prevent access to classified information under this section is not subject to a motion for reconsideration by the accused, if such order was entered pursuant to an e x parte showing under this section. ‘ ‘ §94 9 p–5.Noticebya cc us e d o f i n tention to disc l ose classified info rm ation ‘‘(a) N OTICE BY ACC U SED.— ‘‘( 1 ) NOTI F ICATION OF TRIA L COUNSEL AND M ILITARY J UD G E.— I f an accused reasonably expects to disclose, or to cause the disclosure of, classified information in any manner in connection with any trial or pretrial proceeding involving the prosecution of such accused, the accused shall, within the time specified by the military judge or, where no time is speci- fied, within 30 days before trial, notify the trial counsel and the military judge in writing. S uch notice shall include a brief description of the classified information. W henever the accused learns of additional classified information the accused reason- ably expects to disclose, or to cause the disclosure of, at any such proceeding, the accused shall notify trial counsel and the military judge in writing as soon as possible thereafter and shall include a brief description of the classified informa- tion. ‘‘( 2 ) L IMITATION ON DISCLOSURE BY ACCUSED.—No accused shall disclose, or cause the disclosure of, any information known or believed to be classified in connection with a trial or pretrial proceeding until— ‘‘(A) notice has been given under paragraph (1) and ‘‘( B ) the U nited States has been afforded a reasonable opportunity to seek a determination pursuant to the proce- dure set forth in section 94 9p –6 of this title and the time for the United States to appeal such determination under section 9 5 0d of this title has expired or any appeal under that section by the United States is decided. ‘‘(b) F AILURE T O C OM P LY.—If the accused fails to comply with the requirements of subsection (a), the military judge— ‘‘(1) may preclude disclosure of any classified information not made the subject of notification; and ‘‘(2) may prohibit the examination by the accused of any witness with respect to any such information. ‘‘§ 949p– 6 . P rocedure for cases in v olvin g classified informa - tion ‘‘(a) M OTION FOR H EARING.— ‘‘(1) RE Q UEST FOR H EARING.—Within the time specified by the military judge for the filing of a motion under this section, either party may request the military judge to conduct a hearing to make all determinations concerning the use, rel- evance, or admissibility of classified information that would otherwise be made during the trial or pretrial proceeding. ‘‘(2) CONDUCT OF HEARING.—Upon a request by either party under paragraph (1), the military judge shall conduct such Deadlin e .


text:
Page:United States Statutes at Large Volume 123.djvu/2614

 123STA T . 2 594PUBLIC LA W 111 –8 4 —O CT. 28 , 2 0 09 ahe a ring an ds ha l lr u le p ri o r t o c onducting an yf urther pro - ceedings .‘ ‘ (3)INCAMER A H EAR I N GUPO N D EC L ARA T ION TO COURT BY APPROPRIATE O F FICIAL OF RI SK OF DISCLOSURE OF CLASSIFIED INFORMATION. —A ny hearing held pursuant to this su b section (or any portion of such hearing specified in the re q uest of a k no w ledgeable U nited S tates official) shall be held in ca m era if a knowledgeable United States official possessing authority to classify information submits to the military j udge a declara- tion that a public proceeding may result in the disclosure of classified information. C lassified information is not subject to disclosure under this section unless the information is rel- e v ant and necessary to an element of the offense or a legally cogni z able defense and is otherwise admissible in evidence. ‘‘( 4 ) M ILITARY J UDGE TO MAKE DETERMINATIONS IN W RITING.—As to each item of classified information , the military judge shall set forth in writing the basis for the determination. ‘‘(b) N OTICE AND USE OF CLASSIFIED INFORMATION BY THE G O V ERNMENT.— ‘‘( 1 ) NOTICE TO ACCUSED.— B efore any hearing is conducted pursuant to a request by the trial counsel under subsection (a), trial counsel shall provide the accused with notice of the classified information that is at issue. Such notice shall identify the specific classified information at issue whenever that information previously has been made available to the accused by the United States. W hen the United States has not pre- viously made the information available to the accused in connec- tion with the case the information may be described by generic category, in such forms as the military judge may approve, rather than by identification of the specific information of con- cern to the United States. ‘‘( 2 ) O RDER BY MILITARY JUDGE UPON RE Q UEST OF ACCUSED.—Whenever the trial counsel requests a hearing under subsection (a), the military judge, upon request of the accused, may order the trial counsel to provide the accused, prior to trial, such details as to the portion of the charge or specification at issue in the hearing as are needed to give the accused fair notice to prepare for the hearing. ‘‘(c) SUBSTITUTIONS.— ‘‘(1) IN CAMERA PRETRIAL HEARING.—Upon request of the trial counsel pursuant to the Military Commission R ules of E vidence, and in accordance with the security procedures estab- lished by the military judge, the military judge shall conduct a classified in camera pretrial hearing concerning the admissi- bility of classified information. ‘‘(2) P ROTECTION OF SOURCES, METHODS, AND ACTIVITIES BY WHICH EVIDENCE ACQUIRED.—When trial counsel seeks to introduce evidence before a military commission under this chapter and the E x ecutive branch has classified the sources, methods, or activities by which the United States acquired the evidence, the military judge shall permit trial counsel to introduce the evidence, including a substituted evidentiary foundation pursuant to the procedures described in subsection (d), while protecting from disclosure information identifying those sources, methods, or activities, if— ‘‘(A) the evidence is otherwise admissible and ‘‘(B) the military judge finds that—


text:
Page:United States Statutes at Large Volume 123.djvu/2615

 123STA T . 2 59 5 PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 ‘ ‘ (i)the e v i d e nc ei sr e l i ab le and ‘‘(ii) the redacti o n is consistent w ith a f fordin g the acc u sed a fair trial . ‘‘(d) ALTERNA T IV E P R OC E DU RE F OR D I S CLOSURE OF C LASSIFIED I NFOR M ATION. — ‘‘( 1 ) M OTION BY T H E UNITED STATES.— Up on an y deter m ina - tion by the military j udge authori z ing the disclosure of specific classified information under the procedures established by this section , the trial counsel may move that, in lieu of the disclosure of such specific classified information, the military judge order— ‘‘(A) the substitution for such classified information of a statement admitting relevant facts that the specific classified information would tend to prove; ‘‘( B ) the substitution for such classified information of a summary of the specific classified information; or ‘‘(C) any other procedure or redaction limiting the disclosure of specific classified information. ‘‘( 2 ) ACTION ON MOTION.— T he military judge shall grant such a motion of the trial counsel if the military judge finds that the statement, summary, or other procedure or redaction will provide the defendant with substantially the same ability to ma k e his defense as would disclosure of the specific classified information. ‘‘( 3 ) H EARIN G ON MOTION.—The military judge shall hold a hearing on any motion under this subsection. Any such hearing shall be held in camera at the re q uest of a knowledge- able United S tates official possessing authority to classify information. ‘‘( 4 ) SUBMISSION OF STATEMENT OF DAMAGE TO NATIONAL SECURITY IF DISCLOSURE ORDERED.—The trial counsel may, in connection with a motion under paragraph (1), submit to the military judge a declaration signed by a knowledgeable United States official possessing authority to classify information certi- fying that disclosure of classified information would cause identifiable damage to the national security of the United States and e x plaining the basis for the classification of such informa- tion. If so requested by the trial counsel, the military judge shall examine such declaration during an ex parte presentation. ‘‘(e) SEALING OF R ECORDS OF IN CAMERA HEARINGS.—If at the close of an in camera hearing under this section (or any portion of a hearing under this section that is held in camera), the military judge determines that the classified information at issue may not be disclosed or elicited at the trial or pretrial proceeding, the record of such in camera hearing shall be sealed and preserved for use in the event of an appeal. The accused may seek reconsider- ation of the military judge ’ s determination prior to or during trial. ‘‘(f) PROHIBITION ON DISCLOSURE OF CLASSIFIED INFORMATION BY THE ACCUSED; RELIEF FOR ACCUSED W HEN THE UNITED STATES OP POSES DISCLOSURE.— ‘‘(1) ORDER TO PREVENT DISCLOSURE BY ACCUSED.—When- ever the military judge denies a motion by the trial counsel that the judge issue an order under subsection (a), (c), or (d) and the trial counsel files with the military judge a declara- tion signed by a knowledgeable United States official possessing authority to classify information objecting to disclosure of the classified information at issue, the military judge shall order Certif i ca ti on.


text:
Page:United States Statutes at Large Volume 123.djvu/2616

 123STA T . 2 596PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 tha tth e a c c us e dno td i sc l ose o r cause the disclosure o f such infor m ation .‘ ‘ (2)RESULTOF O RD ERU N DER PA RA G RAP H(1) . —W hene v er an accused is p revented by an order under para g raph ( 1 ) from disclosing or causing the disclosure of classified information , the military j udge shall dismiss the case, e x cept that, w hen the military judge determines that the interests of justice would not be served by dismissal of the case, the military judge shall order such other action, in lieu of dismissing the charge or specification, as the military judge determines is appropriate. S uch action may include, but need not be limited to, the fol - lowing ‘‘( A ) D ismissing specified charges or specifications. ‘‘( B ) F inding against the U nited States on any issue as to which the excluded classified information relates. ‘‘( C ) Stri k ing or precluding all or part of the testimony of a witness. ‘‘( 3 ) TIM E FOR THE UNITED STATES TO SEE K INTERLO C UTOR Y APPEAL.—An order under paragraph (2) shall not take effect until the military judge has afforded the United States— ‘‘(A) an opportunity to appeal such order under section 950 d of this title and ‘‘(B) an opportunity thereafter to withdraw its objection to the disclosure of the classified information at issue. ‘‘(g) RECIPROCITY.— ‘‘(1) DISCLOSURE OF RE B UTTAL INFORMATION.—Whenever the military judge determines that classified information may be disclosed in connection with a trial or pretrial proceeding, the military judge shall, unless the interests of fairness do not so re q uire, order the United States to provide the accused with the information it expects to use to rebut the classified information. The military judge may place the United States under a continuing duty to disclose such rebuttal information. ‘‘(2) SANCTION FOR FAILURE TO COMPLY.— I f the United States fails to comply with its obligation under this subsection, the military judge— ‘‘(A) may exclude any evidence not made the subject of a required disclosure; and ‘‘(B) may prohibit the examination by the United States of any witness with respect to such information. ‘ ‘ §94 9 p–7.Introduc t i ono f c las sifi e d infor m ation into e v i - dence ‘‘(a) P RESER V ATION OF CLASSIFICATION STATUS.—Writings, recordings, and photographs containing classified information may be admitted into evidence in proceedings of military commissions under this chapter without change in their classification status. ‘‘(b) PRECAUTIONS BY M ILITARY J UDGES.— ‘‘(1) PRECAUTIONS IN ADMITTING CLASSIFIED INFORMATION INTO EVIDENCE.—The military judge in a trial by military commission, in order to prevent unnecessary disclosure of classi- fied information, may order admission into evidence of only part of a writing, recording, or photograph, or may order admis- sion into evidence of the whole writing, recording, or photograph with excision of some or all of the classified information con- tained therein, unless the whole ought in fairness be considered.


text:
Page:United States Statutes at Large Volume 123.djvu/2617

 123STA T . 2 597PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 ‘ ‘ (2)CLAS S IF I ED I N F ORM A T ION K E P T U NDER SEAL .—Themil i -taryjudg e s hall all owc lassi f ied i n formation offered or acce p ted into e v idence to remain under seal during the trial , even if such evidence is disclosed in the military commission, and may, upon motion b y the U nited S tates, seal e x hibits containing classified information for any period after trial as necessary to prevent a disclosure of classified information when a k nowledgeable United States official possessing authority to classify information submits to the military judge a declaration setting forth the damage to the national security that the disclosure of such information reasonably could be expected to cause. ‘‘(c) TAKIN G OF TESTIMON Y .— ‘‘( 1 ) OBJ E C TION BY TRIAL COUNSEL.— D uring the examina- tion of a witness, trial counsel may object to any q uestion or line of inquiry that may require the witness to disclose classified information not previously found to be admissible. ‘‘(2) A CTION BY MILITARY JUDGE.— F ollowing an objection under paragraph (1), the military judge shall take such suitable action to determine whether the response is admissible as will safeguard against the compromise of any classified informa- tion. Such action may include requiring trial counsel to provide the military judge with a proffer of the witness ’ response to the question or line of inquiry and requiring the accused to provide the military judge with a proffer of the nature of the information sought to be elicited by the accused. Upon request, the military judge may accept an ex parte proffer by trial counsel to the extent necessary to protect classified information from disclosure, in accordance with the practice of the Federal courts under the Classified I nformation P roce- dures Act (1 8 U.S.C. App.). ‘‘(d) DISCLOSURE AT TRIAL OF CERTAIN STATEMENTS PRE V IOUSLY M ADEBYA W ITNESS.— ‘‘(1) MOTION FOR PRODUCTION OF STATEMENTS IN POSSES- SION OF T H E UNITED STATES.—After a witness called by the trial counsel has testified on direct examination, the military judge, on motion of the accused, may order production of state- ments of the witness in the possession of the United States which relate to the subject matter as to which the witness has testified. This paragraph does not preclude discovery or assertion of a privilege otherwise authori z ed. ‘‘(2) INVOCATION OF PRIVILEGE BY THE UNITED STATES.— If the United States invokes a privilege, the trial counsel may provide the prior statements of the witness to the military judge during an ex parte presentation to the extent necessary to protect classified information from disclosure, in accordance with the practice of the Federal courts under the Classified Information Procedures Act (18 U.S.C. App.). ‘‘( 3 ) ACTION BY MILITARY JUDGE ON MOTION.—If the military judge finds that disclosure of any portion of the statement identified by the United States as classified would be detri- mental to the national security in the degree to warrant classi- fication under the applicable E xecutive Order, statute, or regu- lation, that such portion of the statement is consistent with the testimony of the witness, and that the disclosure of such portion is not necessary to afford the accused a fair trial, the military judge shall excise that portion from the statement.


text:
Page:United States Statutes at Large Volume 123.djvu/2618

 123STA T . 2 598PUBLIC LA W 111 – 8 4—O CT. 28 , 2 0 09 Ifthemil it aryjudg efi n d s that su c h po rtion of the statement is inconsistent w ith the testimony of the witness or that its disclosure is necessary to afford the accused a fair trial , the military judge, shall, upon the re q uest of the trial counsel, re v iew alternatives to disclosure in accordance with section 94 9p –6( d ) of this title .‘ ‘ SUBCHAPTERV I — SE N TENCES ‘ ‘ Sec. ‘‘ 94 9 s. Cru e lo ru n usu a l p un i s hm en t s prohi b ite d . ‘‘949t. M a x imum limits. ‘‘949u. E xecution o f confinement. ‘ ‘ §94 9 s.Cruelo ru n usu a l p un i s hm en t s prohi b ite d ‘‘Punishment b y flogging, or by branding, mar k ing, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission under this chapter or inflicted under this chapter upon any person subject to this chapter. The use of irons, single or double, e x cept for the purpose of safe custody, is prohibited under this chapter. ‘‘§ 949t. M a x imum limits ‘‘The punishment which a military commission under this chapter may direct for an offense may not exceed such limits as the President or Secretary of D efense may prescribe for that offense. ‘‘§ 949u. E xe c ution o f confinement ‘‘(a) I NGE NE RAL .—Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into execution by confinement— ‘‘( 1 ) in any place of confinement under the control of any of the armed forces or ‘‘( 2 ) in any penal or correctional institution under the con - trol of the United States or its allies, or which the United States may be allowed to use. ‘‘(b) TREA TM ENT D U R I N G C O N F INEMENT BYO T H ER THAN THE ARME DF OR C E S .—Persons confined under subsection (a)(2) in a penal or correctional institution not under the control of an armed force are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated. ‘‘SUBCHAPTER VII—POST-TRIA L PROCEDURE AND REVIE W OF M ILITAR Y COMMISSIONS ‘‘Sec. ‘‘9 50 a. Error of la w; lesser included offense. ‘‘950b. R e v iew b y the convenin g authority. ‘‘950c. A ppellate referral; waiver or withdrawal of appeal. ‘‘950d. I nterlocutory appeals by the U nited States. ‘‘950e. Rehearings. ‘‘950f. Review by United States Court of Military Commission Review. ‘‘950g. Review by United States Court of Court of Appeals for the D istrict of Colum - bia Circuit; writ of certiorari to Supreme Court. ‘‘950h. Appellate counsel. ‘‘950i. Execution of sentence; suspension of sentence. ‘‘950 j. F inality of proceedings , findings, and sentences. Regulations.


text:
Page:United States Statutes at Large Volume 123.djvu/2619

 123STA T . 2 59 9 PUBLIC LA W 111 –84—O CT. 28 , 2 0 09 ‘ ‘ §950a.Er r o ro fl a w; l es ser inc l ud ed offense ‘ ‘ (a)ER R O RO FLAW.—Afind in gorse n t en c eofa m i l itar y commission u nder t h is cha p ter may not b e held incorrect on the ground of an error of la w unless the error materially pre j udices the substantial rights of the accused. ‘‘(b) L ES SER INCLUD ED O FFENSE.—Any re v iewing authority with the power to approve or affirm a finding of guilty by a military commission under this chapter may approve or affirm , instead, so much of the finding as includes a lesser included offense. ‘‘§ 950 b. R e v iew b yth e convenin g authority ‘‘(a) N O TI CE TO C ON V ENIN G AUT H ORIT Y OF F INDINGS AND S EN - TENCE.— T he findings and sentence of a military commission under this chapter shall be reported in writing promptly to the convening authority after the announcement of the sentence. ‘‘(b) SU BM ITTAL OF M ATTERS BY ACCUSED TO CONVENING AUTHORITY.—( 1 ) The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence of the military commission under this chapter. ‘‘( 2 )(A) E x cept as provided in subparagraph ( B ), a submittal under paragraph (1) shall be made in writing within 2 0 days after the accused has been give an authenticated record of trial under section 94 9o(c) of this title. ‘‘(B) If the accused shows that additional time is re q uired for the accused to ma k e a submittal under paragraph (1), the convening authority may, for good cause, extend the applicable period under subparagraph (A) for not more than an additional 20 days. ‘‘( 3 ) The accused may waive the accused ’ s right to make a submittal to the convening authority under paragraph (1). Such a waiver shall be made in writing, and may not be revoked. For the purposes of subsection (c)(2), the time within which the accused may make a submittal under this subsection shall be deemed to have expired upon the submittal of a waiver under this paragraph to the convening authority. ‘‘(c) ACTION BY CONVENING AUTHORITY.—(1) The authority under this subsection to modify the findings and sentence of a military commission under this chapter is a matter of the sole discretion and prerogative of the convening authority. ‘‘(2) The convening authority is not required to take action on the findings of a military commission under this chapter. If the convening authority takes action on the findings, the convening authority may, in the sole discretion of the convening authority, only— ‘‘(A) dismiss any charge or specification by setting aside a finding of guilty thereto or ‘‘(B) change a finding of guilty to a charge to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge. ‘‘(3)(A) The convening authority shall take action on the sen- tence of a military commission under this chapter. ‘‘(B) Subject to regulations prescribed by the Secretary of D efense, action under this paragraph may be taken only after consideration of any matters submitted by the accused under sub- section (b) or after the time for submitting such matters expires, whichever is earlier. Regulations.D ea d line. Re p o r ts.


text:
Page:United States Statutes at Large Volume 123.djvu/2620

 123STA T . 2 60 0 PUBLIC LA W 111 –84—O CT. 28 , 200 9‘ ‘ (C)Intaki n g a c ti o n u n der t h i sp aragraph , the con v ening authorit ym ay, in the so l e discretion o f the convening authority, approve, disapprove, commute, or suspend the sentence in w hole or in part .T he convening authority may not increase a sentence b eyond that which is found by the military commission. ‘‘( 4 ) The convening authority shall serve on the accused or on defense counsel notice of any action taken by the convening authority under this subsection. ‘‘(d) ORDE R OFR E VIS IO N OR RE H E A RIN G . — ( 1 ) S ub j ect to para - graphs ( 2 )and( 3 ), the convening authority of a military commission under this chapter may, in the sole discretion of the convening authority, order a proceeding in revision or a rehearing. ‘‘(2)( A ) Ex cept as provided in subparagraph ( B ), a proceeding in revision may be ordered by the convening authority if— ‘‘(i) there is an apparent error or omission in the record or ‘‘(ii) the record shows improper or inconsistent action by the military commission with respect to the findings or sentence that can be rectified without material prejudice to the substan- tial rights of the accused. ‘‘(B) In no case may a proceeding in revision— ‘‘(i) reconsider a finding of not guilty of a specification or a ruling which amounts to a finding of not guilty; ‘‘(ii) reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation; or ‘‘(iii) increase the severity of the sentence unless the sen- tence prescribed for the offense is mandatory. ‘‘(3) A rehearing may be ordered by the convening authority if the convening authority disapproves the findings and sentence and states the reasons for disapproval of the findings. If the con- vening authority disapproves the finding and sentence and does not order a rehearing, the convening authority shall dismiss the charges. A rehearing as to the findings may not be ordered by the convening authority when there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered by the convening authority if the convening authority disapproves the sentence. ‘ ‘ §950c.Ap p el l at e r e f erral a iv er o r wit hd rawal of appeal ‘‘(a) A UT O M ATI C REFERRA L FOR A P PELLATE REVIE W .—Except as provided in subsection (b), in each case in which the final decision of a military commission under this chapter (as approved by the convening authority) includes a finding of guilty, the convening authority shall refer the case to the U nited States Court of M ilitary Commission Review. Any such referral shall be made in accordance with procedures prescribed under regulations of the Secretary. ‘‘(b) W AIVER OF RIGHT OF REVIEW.—(1) Except in a case in which the sentence as approved under section 950 b of this title extends to death, an accused may file with the convening authority a statement expressly waiving the right of the accused to appellate review by the United States Court of Military Commission Review under section 950f of this title of the final decision of the military commission under this chapter. ‘‘(2) A waiver under paragraph (1) shall be signed by both the accused and a defense counsel. Regulations.
 * w


text:
Page:United States Statutes at Large Volume 123.djvu/2621

 123STA T . 2 60 1 PUBLIC LA W 111 –84—O CT. 28 , 200 9‘ ‘ (3)Awaiverund er p ara g rap h ( 1 ) m u stb e f i l ed , if at all, within 1 0 da y s after n o ti c e of the action is served on the accused or on defense counsel under section 95 0b(c)( 4 ) of this title .T he convening authority, for good cause, may e x tend the period for such filing by not more than 30 days. ‘‘(c) WITHDRAW A LOF A P P E AL. —E xcept in a case in which the sentence as approved under section 950b of this title extends to death, the accused may withdraw an appeal at any time. ‘‘(d) EFFE C TOFWAI V ER OR WITHDRAWAL.—A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under section 950f of this title. ‘ ‘ §950d.Interlocu tor yap peal sb yt h e U n i ted S tates ‘‘(a) IN TERLOC U TOR Y APPEAL.—Except as provided in subsection (b), in a trial by military commission under this chapter, the U nited S tates may ta k e an interlocutory appeal to the United States C ourt of M ilitary Commission R eview of any order or ruling of the military j udge— ‘‘(1) that terminates proceedings of the military commission with respect to a charge or specification ‘‘( 2 ) that excludes evidence that is substantial proof of a fact material in the proceeding; ‘‘(3) that relates to a matter under subsection (c) or (d) of section 949d of this title; or ‘‘(4) that, with respect to classified information— ‘‘(A) authori z es the disclosure of such information; ‘‘( B ) imposes sanctions for nondisclosure of such information; or ‘‘(C) refuses a protective order sought by the United States to prevent the disclosure of such information. ‘‘(b) L I M ITATION.—The United States may not appeal under subsection (a) an order or ruling that is, or amounts to, a finding of not guilty by the military commission with respect to a charge or specification. ‘‘(c) SCOPE OF APPEAL RI G HT WITH RE S PECT TO CLASSIFIED INFORMATION.—The United States has the right to appeal under paragraph (4) of subsection (a) whenever the military judge enters an order or ruling that would re q uire the disclosure of classified information, without regard to whether the order or ruling appealed from was entered under this chapter, another provision of law, a rule, or otherwise. Any such appeal may embrace any preceding order, ruling, or reasoning constituting the basis of the order or ruling that would authorize such disclosure. ‘‘(d) TIMING AND ACTION ON INTERLOCUTORY APPEALS RELATING TO CLASSIFIED INFORMATION.— ‘‘(1) APPEAL TO B EE X PEDITED.—An appeal taken pursuant to paragraph (4) of subsection (a) shall be expedited by the United States Court of Military Commission Review. ‘‘(2) APPEALS BEFORE TRIAL.—If such an appeal is taken before trial, the appeal shall be taken within 10 days after the order or ruling from which the appeal is made and the trial shall not commence until the appeal is decided. ‘‘(3) APPEALS DURING TRIAL.—If such an appeal is taken during trial, the military judge shall adjourn the trial until the appeal is decided, and the court of appeals— Deadlin e . Deadline.


text:
Page:United States Statutes at Large Volume 123.djvu/2622

 123STA T . 2 60 2 PUBLIC LA W 111 –84—O CT. 28 , 200 9‘ ‘ (A)shal lh e a r ar gum e nto nsu c ha p peal wi thin 4d a y so f the ad j ournment of the trial (e x cluding wee k ends and holidays) ‘‘( B ) may dispense with written b riefs other than the supporting materials pre v iously submitted to the military judge; ‘‘( C ) shall render its decision within four days of argu - ment on appeal (excluding weekends and holidays); and ‘‘( D ) may dispense with the issuance of a written opinion in rendering its decision . ‘‘(e) NOTICEANDT I M IN G O FO T H E R A P PEA LS . — The U nited S tates shall take an appeal of an order or ruling under subsection (a) , other than an appeal under paragraph (4) of that subsection, by filing a notice of appeal with the military judge within 5 days after the date of the order or ruling. ‘‘(f) M ETHOD OF APPEAL.—An appeal under this section shall be forwarded, by means specified in regulations prescribed by the Secretary of Defense, directly to the United States Court of Military Commission R eview. ‘‘(g) APPEALS CO U RT TO ACT ONL YW ITH RESPECT TO MATTER OF L A W .— I n ruling on an appeal under paragraph ( 1 ),( 2 ), or ( 3 ) of subsection (a), the appeals court may act only with respect to matters of law. ‘‘(h) SU B SE Q UENT APPEAL RIGHTS OF ACCUSED NOT AFFECTED.— An appeal under paragraph (4) of subsection (a), and a decision on such appeal, shall not affect the right of the accused, in a subse q uent appeal from a judgment of conviction, to claim as error reversal by the military judge on remand of a ruling appealed from during trial. ‘ ‘ §950e.R e h e arings ‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR REHEARING.— E ach rehearing under this chapter shall take place before a military commission under this chapter composed of members who were not members of the military commission which first heard the case. ‘‘(b) SCOPE OF REHEARING.—(1) Upon a rehearing— ‘‘(A) the accused may not be tried for any offense of which the accused was found not guilty by the first military commis- sion; and ‘‘(B) no sentence in excess of or more than the original sentence may be imposed unless— ‘‘(i) the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings; or ‘‘(ii) the sentence prescribed for the offense is manda- tory. ‘‘(2) Upon a rehearing, if the sentence approved after the first military commission was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with pretrial agreement, the sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first military commission. Regulations.D ea d line. Deadline.


text:
Page:United States Statutes at Large Volume 123.djvu/2623

 123STA T . 2 60 3 PUBLIC LA W 111 –84—O CT. 28 , 200 9‘ ‘ §950f.Revi e wbyUn i t e dS t a te sCour tof M i l itary Co m mis - sion Review ‘ ‘ (a)ESTABLI S HMEN T .—Ther e is a cou r t o f recor d to b e kn o w n asthe‘ U nited S tates C ourt of M i l itar y Co m mission R e v iew ’ (in this section referred to as the ‘Court’). The Court shall consist of one or more p anels , each composed of not less than three appel - late military j ud g es. F or the purpose of reviewing decisions of military commissions under this chapter, the Court may sit in panels or as a whole, in accordance with rules prescribed by the Secretary of D efense. ‘‘(b) JUDG ES.—( 1 ) Judges on the Court shall be assigned or appointed in a manner consistent with the provisions of this sub- section. ‘‘( 2 ) The Secretary of Defense may assign persons who are appellate military judges to be judges on the Court. A ny judge so assigned shall be a commissioned officer of the armed forces, and shall meet the q ualifications for military judges prescribed by section 948 j(b) of this title. ‘‘( 3 ) The P resident may appoint, by and with the advice and consent of the Senate, additional judges to the United States Court of Military Commission Review. ‘‘(4) N o person may serve as a judge on the Court in any case in which that person acted as a military judge, counsel, or reviewing official. ‘‘(c) CASES T OB ERE V IE W ED.—The Court shall, in accordance with procedures prescribed under regulations of the Secretary, review the record in each case that is referred to the Court by the convening authority under section 9 50 c of this title with respect to any matter properly raised by the accused. ‘‘(d) STANDA R DANDS C O P EO F REVIEW.— I n a case reviewed by the Court under this section, the Court may act only with respect to the findings and sentence as approved by the convening authority. The Court may affirm only such findings of guilty, and the sentence or such part or amount of the sentence, as the Court finds correct in law and fact and determines, on the basis of the entire record, should be approved. In considering the record, the Court may weigh the evidence, judge the credibility of witnesses, and determine controverted questions of fact, recogni z ing that the military commission saw and heard the witnesses. ‘‘(e) REHEARINGS.—If the Court sets aside the findings or sen- tence, the Court may, e x cept where the setting aside is based on lack of sufficient evidence in the record to support the findings, order a rehearing. If the Court sets aside the findings or sentence and does not order a rehearing, the Court shall order that the charges be dismissed. ‘‘§ 950 g . Review by United States Court of Ap peals for t h e D istri c t of Columbia Circuit writ of certiorari to Supreme Court ‘‘(a) E X CLUSIVE APPELLATE JURISDICTION.—Except as provided in subsection (b), the United States Court of Appeals for the District of Columbia Circuit shall have exclusive jurisdiction to determine the validity of a final judgment rendered by a military commission (as approved by the convening authority and, where applicable, the United States Court of Military Commission Review) under this chapter. Regulations.


text:
Page:United States Statutes at Large Volume 123.djvu/2624

 123STA T . 2 604PUBLIC LA W 111 –8 4 —O CT. 28 , 200 9‘ ‘ (b)EXHAUSTION O FO TH ERAP PEA L S .—TheUnit e dS t a te sCour t o f A p pea l s for the D istri c t of Colu m bia Circuit ma y not re v ie w a final j ud g ment described in subsection (a) until all other appeals under this chapter have been waived or e x hausted. ‘‘(c) TI M E FOR SEE K IN GR E V IE W .—A petition for review by the United States Court of Appeals for the District of Columbia Circuit must be filed by the accused in the Court of Appeals not later than 20 days after the date on which— ‘‘( 1 ) written notice of the final decision of the United States Court of M ilitary Commission Review is served on the accused or on defense counsel or ‘‘(2) the accused submits , in the form prescribed by section 95 0c of this title, a written notice waiving the right of the accused to review by the United States Court of Military Commission Review. ‘‘(d) S C OPE AN DN ATURE OF REVIEW.—The United States Court of Appeals for the District of Columbia Circuit may act under this section only with respect to the findings and sentence as approved by the convening authority and as affirmed or set aside as incorrect in law by the United States Court of Military Commis - sion Review, and shall ta k e action only with respect to matters of law, including the sufficiency of the evidence to support the verdict. ‘‘(e) REVIEW BY SUPREME COURT.—The Supreme Court may review by writ of certiorari pursuant to section 125 4 of title 2 8 the final judgment of the United States Court of Appeals for the District of Columbia Circuit under this section. ‘ ‘ §950h.Ap p el l at e couns el ‘‘(a) APPOINTMENT.—The Secretary of Defense shall, by regula- tion, establish procedures for the appointment of appellate counsel for the United States and for the accused in military commissions under this chapter. Appellate counsel shall meet the q ualifications of counsel for appearing before military commissions under this chapter. ‘‘(b) REPRESENTATION OF UNITED STATES.—Appellate counsel appointed under subsection (a)— ‘‘(1) shall represent the United States in any appeal or review proceeding under this chapter before the United States Court of Military Commission Review; and ‘‘(2) may, when requested to do so by the Attorney G eneral in a case arising under this chapter, represent the United States before the United States Court of Appeals for the District of Columbia Circuit or the Supreme Court. ‘‘(c) REPRESENTATION OF ACCUSED.—The accused shall be rep- resented by appellate counsel appointed under subsection (a) before the United States Court of Military Commission Review, the United States Court of Appeals for the District of Columbia Circuit, and the Supreme Court, and by civilian counsel if retained by the accused. Any such civilian counsel shall meet the qualifications under paragraph ( 3 ) of section 949c(b) of this title for civilian counsel appearing before military commissions under this chapter and shall be subject to the requirements of paragraph ( 7 ) of that section. Regulations.Pr o c e d ures. D eadline. N otice.


text:
Page:United States Statutes at Large Volume 123.djvu/2625

 123STA T . 2 605PUBLIC LA W 111 –84—O CT. 28 , 200 9‘ ‘ §950i.Execut i on o fs entence sus p ension of sentence ‘ ‘ (a)INGE NE RAL.—TheS e cr e t ar yofD efe ns e i sa u thori z e d to carry out a sentence i mp osed b yami l itary commission under this chapter in accordance w ith such procedures as the Secretary may prescribe. ‘‘(b) EX E CUTIO NO F SENTENCE OF DEAT HO NL YUP ON A PPRO V AL B Y THE P RE S I D ENT.—If the sentence of a military commission under this chapter e x tends to death , that part of the sentence pro v idin g for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit. ‘‘(c) EXECUTION OF SENTENCE OF DEATH ONLY UPON F INAL J UD GM ENT OF L EGALITY OF PROCEEDINGS.—( 1 ) If the sentence of a military commission under this chapter extends to death, the sentence may not be executed until there is a final j udgment as to the legality of the proceedings (and with respect to death, approval under subsection (b)). ‘‘( 2 ) A judgment as to legality of proceedings is final for purposes of paragraph (1) when review is completed in accordance with the judgment of the United States C ourt of M ilitary Commission R eview and— ‘‘(A) the time for the accused to file a petition for review by the United States Court of Appeals for the District of Columbia Circuit has expired, the accused has not filed a timely petition for such review, and the case is not otherwise under review by the Court of Appeals or ‘‘( B ) review is completed in accordance with the judgment of the United States Court of Appeals for the District of Columbia Circuit and— ‘‘(i) a petition for a writ of certiorari is not timely filed; ‘‘(ii) such a petition is denied by the Supreme Court; or ‘‘(iii) review is otherwise completed in accordance with the judgment of the Supreme Court. ‘‘(d) SUSPENSION OF SENTENCE.—The Secretary of the Defense, or the convening authority acting on the case (if other than the Secretary), may suspend the execution of any sentence or part thereof in the case, except a sentence of death. ‘‘§ 950 j. F in al it y ofp r ocee d in g s , findings, and sentences ‘‘The appellate review of records of trial provided by this chapter, and the proceedings, findings, and sentences of military commissions as approved, reviewed, or affirmed as re q uired by this chapter, are final and conclusive. Orders publishing the pro - ceedings of military commissions under this chapter are binding upon all departments, courts, agencies, and officers of the United States, subject only to action by the Secretary or the convening authority as provided in section 950 i(c) of this title and the authority of the President. ‘‘SUBC H APTER V III—PU N ITIVE MATTERS ‘ ‘ Sec. ‘‘ 950p . D e fin i t i o n s; const ru ction of cert a in offenses; co m mon circumstances. ‘‘950 q. P rincipa l s. ‘‘950r. A ccessor y after t h e fact.


text:
Page:United States Statutes at Large Volume 123.djvu/2626

 123STA T . 2 60 6 PUBLIC LA W 111 –84—O CT. 28 , 200 9‘ ‘ 950s.Convict ion o fle sse r offenses. ‘‘950t. Cri m es tri ab leb y military commission. ‘ ‘ §950p.Defin i t i o n s;c onst ru ction of cert a in offenses; co m mon circumstances ‘ ‘ (a)DEFIN I T I O N S.—Inthis s ubc ha p t er: ‘‘( 1 ) T he ter m ‘mi l itar yo b j ecti v e ’ means combatants an d those objects durin g hostilities w hich , by their nature, location, purpose, or use, e f fectively contribute to the war - fighting or war-sustaining capability of an opposing force and whose total or partial destruction, capture, or neutrali z ation would con- stitute a definite military advantage to the attac k er under the circumstances at the time of an attack. ‘‘( 2 ) The term ‘protected person’ means any person entitled to protection under one or more of the G eneva C onventions, including civilians not taking an active part in hostilities, mili- tary personnel placed out of combat by sickness, wounds, or detention, and military medical or religious personnel. ‘‘( 3 ) The term ‘protected property’ means any property specifically protected by the law of war, including buildings dedicated to religion, education, art, science, or charitable pur- poses, historic monuments, hospitals, and places where the sick and wounded are collected, but only if and to the e x tent such property is not being used for military purposes or is not otherwise a military objective. The term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective. ‘‘(b) CONST RUC TION OF CERT A IN O FFENSES.—The intent re q uired for offenses under paragraphs (1), (2), (3), ( 4 ), and (12) of section 950 t of this title precludes the applicability of such offenses with regard to collateral damage or to death, damage, or injury incident to a lawful attack. ‘‘(c) CO M MON CIRCUMSTANCES.— A n offense specified in this sub- chapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with hostilities. ‘‘(d) E FFECT.—The provisions of this subchapter codify offenses that have traditionally been triable by military commission. This chapter does not establish new crimes that did not exist before the date of the enactment of this subchapter, as amended by the N ational Defense Authorization Act for F iscal Y ear 2010, but rather codifies those crimes for trial by military commission. B ecause the provisions of this subchapter codify offenses that have tradition- ally been triable under the law of war or otherwise triable by military commission, this subchapter does not preclude trial for offenses that occurred before the date of the enactment of this subchapter, as so amended. ‘‘§ 950 q. P rincipa l s ‘‘Any person punishable under this chapter who— ‘‘(1) commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission ‘‘(2) causes an act to be done which if directly performed by him would be punishable by this chapter; or ‘‘(3) is a superior commander who, with regard to acts punishable by this chapter, knew, had reason to know, or


text:
Page:United States Statutes at Large Volume 123.djvu/2627

 123STA T . 2 607PUBLIC LA W 111 –84—O CT. 28 , 200 9should h avekn o w n ,t hatasu b o r d i nate was about to c o m mit such acts or had done so and who f ailed to take the necessar y and reasonable measures to p revent such acts or to punish the perpetrators thereof, is a principal .‘ ‘ §950r.Ac c es s o r yaft ert h e fact ‘ ‘ A ny person sub j ect to this chapter who, knowin g that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a military commission under this chapter may direct. ‘‘§ 950s. C o nvi ction of l esser offenses ‘‘An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an attempt to commit either the offense charged or an offense necessarily included therein. ‘‘§ 950t. Cri m es tria b le by military commission ‘‘ T he following offenses shall be triable by military commission under this chapter at any time without limitation ‘‘ (1)MURDE R OFP RO T E C TED PER S O N S. — Any person subject to this chapter who intentionally kills one or more protected persons shall be punished by death or such other punishment as a military commission under this chapter may direct. ‘‘( 2 ) ATT A C KI N G CI V I L IANS.—Any person subject to this chapter who intentionally engages in an attack upon a civilian population as such, or individual civilians not taking active part in hostilities, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punish - ment, other than death, as a military commission under this chapter may direct. ‘‘( 3 ) ATTACKING CIVILIAN O BJ ECTS.—Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct. ‘‘( 4 ) ATTACKING PROTECTED PROPERT Y .—Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct. ‘‘( 5 ) P ILLAGING.—Any person subject to this chapter who intentionally and in the absence of military necessity appro- priates or sei z es property for private or personal use, without the consent of a person with authority to permit such appropria- tion or seizure, shall be punished as a military commission under this chapter may direct. ‘‘( 6 ) D ENYING Q UARTER.—Any person subject to this chapter who, with effective command or control over subordinate groups, declares, orders, or otherwise indicates to those groups that there shall be no survivors or surrender accepted, with the intent to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted, shall be punished as a military commission under this chapter may direct.


text:
Page:United States Statutes at Large Volume 123.djvu/2628

 123STA T . 2 608PUBLIC LA W 111 – 8 4—O CT. 28 , 200 9‘ ‘ (7)TAKINGHOST AG E S .—Anyperso ns ubj e ct tot hi sch a pter w ho , ha v in gk nowing l y sei z e d or detained one or m ore persons, threatens to kill, injure, or continue to detain such person or persons with the intent o f compelling any nation, person other than the hostage, or group of persons to act or refrain from acting as an e x plicit or implicit condition for the safety or release of such person or persons, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. ‘‘( 8 ) EMPL O Y ING POISON O R SIMILAR W EAPONS.—Any person subject to this chapter who intentionally, as a method of war - fare, employs a substance or weapon that releases a substance that causes death or serious and lasting damage to health in the ordinary course of events, through its asphyxiating, bacteriological, or toxic properties, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. ‘‘( 9 ) U SING PROTE C TE D PERSONS AS A SHIELD.—Any person subject to this chapter who positions, or otherwise takes advan- tage of, a protected person with the intent to shield a military objective from attack. or to shield, favor, or impede military operations, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. ‘‘( 10 ) USING PROTECTED PROPERTY AS A SHIELD.—Any per- son subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct. ‘‘(11) TORT U RE.— ‘‘(A) OF FENSE.—Any person subject to this chapter who commits an act specifically intended to inflict severe phys- ical or mental pain or suffering (other than pain or suf- fering incidental to lawful sanctions) upon another person within his custody or physical control for the purpose of obtaining information or a confession, punishment, intimi- dation, coercion, or any reason based on discrimination of any kind, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commis- sion under this chapter may direct. ‘‘( B ) S E V ERE MENTAL PAIN OR SUFFERING DEFINED.— I n this paragraph, the term ‘severe mental pain or suf- fering ’ has the meaning given that term in section 234 0(2) of title 18.