H. R. 2647—397 
‘‘(D) performing any other procedural function which may 
be performed by the military judge under this chapter or under 
rules prescribed pursuant to section 949a of this title and 
which does not require the presence of the members. 
‘‘(2) Except as provided 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) DELIBERATION OR VOTE OF MEMBERS.—When the members 
of a military commission under this chapter deliberate or vote, 
only the members may be present. 
‘‘(c) CLOSURE OF PROCEEDINGS.—(1) The 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 making a specific 
finding that such closure is necessary to— 
‘‘(A) protect information the disclosure of which could 
reasonably be expected to cause damage to the national 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) EXCLUSION OF ACCUSED FROM 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. 
‘‘§ 949e. Continuances 
‘‘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. 
‘‘§ 949f. Challenges 
‘‘(a) CHALLENGES AUTHORIZED.—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) PEREMPTORY 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.
H. R. 2647—398 
‘‘§ 949g. Oaths 
‘‘(a) IN GENERAL.—(1) Before performing their respective duties 
in a military commission under this chapter, military judges, mem-
bers, trial counsel, defense counsel, reporters, and interpreters shall 
take an oath to perform their duties faithfully. 
‘‘(2) The form of the oath required by paragraph (1), the time 
and place of the taking thereof, the manner of recording thereof, 
and whether 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 Secretary of Defense. 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) WITNESSES.—Each witness before a military commission 
under this chapter shall be examined on oath. 
‘‘(c) OATH DEFINED.—In this section, the term ‘oath’ includes 
an affirmation. 
‘‘§ 949h. Former jeopardy 
‘‘(a) IN GENERAL.—No person may, without the person’s consent, 
be tried by a military commission under this chapter a second 
time for the same offense. 
‘‘(b) SCOPE
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. 
‘‘§ 949i. Pleas of the accused 
‘‘(a) PLEA OF NOT GUILTY.—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) FINDING 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. Opportunity to obtain witnesses and other evidence 
‘‘(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
H. R. 2647—399 
a criminal defendant in a court of the United States under article 
III of the Constitution. 
‘‘(2) Process issued in military commissions under this chapter 
to compel witnesses to appear and testify and to compel the produc-
tion of other evidence— 
‘‘(A) shall be similar to that which courts of the United 
States having criminal jurisdiction may lawfully issue; and 
‘‘(B) shall run to any place where the United States shall 
have jurisdiction thereof. 
‘‘(b) DISCLOSURE OF EXCULPATORY EVIDENCE.—(1) As soon as 
practicable, trial counsel in a military commission under this 
chapter shall disclose to the defense the existence 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) The 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 known or reasonably should be known to any 
government officials who participated in the investigation and 
prosecution of the case against the defendant. 
‘‘§ 949k. Defense of lack of mental responsibility 
‘‘(a) AFFIRMATIVE 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 quality or the wrongfulness 
of the acts. Mental 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) FINDINGS FOLLOWING ASSERTION OF DEFENSE.—Whenever 
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) MAJORITY VOTE REQUIRED 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.
H. R. 2647—400 
‘‘§ 949l. Voting and rulings 
‘‘(a) VOTE BY SECRET WRITTEN BALLOT.—Voting by members 
of a military commission under this chapter on the findings and 
on the sentence shall be by secret written ballot. 
‘‘(b) RULINGS.—(1) The military judge in a military commission 
under this chapter shall rule upon all questions of law, including 
the admissibility of evidence and all interlocutory questions arising 
during the proceedings. 
‘‘(2) Any 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. However, a military judge 
may change such a ruling at any time during the trial. 
‘‘(c) INSTRUCTIONS PRIOR
TO VOTE.—Before a vote is taken 
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 United States. 
‘‘§ 949m. Number of votes required 
‘‘(a) CONVICTION.—No person may be convicted by a military 
commission under this chapter of any offense, except as provided 
in section 949i(b) of this title or by concurrence of two-thirds of 
the members present at the time the vote is taken. 
‘‘(b) SENTENCES.—(1) Except 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 authorized 
under this chapter, chapter 47 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 10 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.