fense, 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. Detail or employment of reporters and inter-
preters 
‘‘(a) COURT REPORTERS.—Under such regulations 
as the Secretary of Defense may prescribe, the convening 
authority of a military commission under this chapter 
shall detail to or employ for the commission qualified court 
reporters, who shall make a verbatim recording of the pro-
ceedings of and testimony taken before the commission. 
‘‘(b) INTERPRETERS.—Under such regulations as the 
Secretary of Defense may prescribe, the convening author-
ity of a military commission under this chapter may detail 
to or employ for the military commission interpreters who 
shall interpret for the commission and, as necessary, for 
trial counsel and defense counsel and for the accused. 
‘‘(c) TRANSCRIPT; RECORD.—The transcript of a 
military commission under this chapter shall be under the 
control of the convening authority of the commission, who 
shall also be responsible for preparing the record of the 
proceedings.
‘‘§ 948m. Number of members; excuse of members; ab-
sent and additional members 
‘‘(a) NUMBER OF MEMBERS.—(1) A military com-
mission under this chapter shall, except as provided in 
paragraph (2), 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 pen-
alty of death, the military commission shall have the num-
ber of members prescribed by section 949m(c) of this title. 
‘‘(b) EXCUSE OF MEMBERS.—No member of a mili-
tary commission under this chapter may be absent or ex-
cused 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 judge for physical disability 
or other good cause; or 
‘‘(3) by order of the convening authority for 
good cause. 
‘‘(c) ABSENT AND ADDITIONAL MEMBERS.—When-
ever a military commission under this chapter is reduced 
below the number of members required 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 mem-
bers present after the recorded evidence previously intro-
duced before the members has been read to the military
commission in the presence of the military judge, the ac-
cused (except as provided in section 949d of this title), 
and counsel for both sides. 
‘‘SUBCHAPTER III—PRE-TRIAL PROCEDURE
‘‘Sec. 
‘‘948q. Charges and specifications. 
‘‘948r. Compulsory self-incrimination prohibited; treatment of statements ob-
tained by torture and other statements. 
‘‘948s. Service of charges.
‘‘§ 948q. Charges and specifications 
‘‘(a) CHARGES AND SPECIFICATIONS.—Charges and 
specifications against an accused in a military commission 
under this chapter shall be signed by a person subject to 
chapter 47 of this title under oath before a commissioned 
officer of the armed forces authorized to administer oaths 
and shall state—
‘‘(1) that the signer has personal knowledge of, 
or reason to believe, the matters set forth therein; 
and 
‘‘(2) that they are true in fact to the best of the 
signer’s knowledge and belief. 
‘‘(b) NOTICE TO ACCUSED.—Upon the swearing of 
the charges and specifications in accordance with sub-
section (a), the accused shall be informed of the charges 
against him as soon as practicable.
‘‘§ 948r. Compulsory self-incrimination prohibited; 
treatment of statements obtained by tor-
ture and other statements 
‘‘(a) IN GENERAL.—No person shall be required to 
testify against himself at a proceeding of a military com-
mission under this chapter. 
‘‘(b) EXCLUSION
OF STATEMENTS OBTAINED
BY 
TORTURE.—A statement obtained by use of torture shall 
not be admissible in a military commission under this 
chapter, except against a person accused of torture as evi-
dence that the statement was made. 
‘‘(c) STATEMENTS OBTAINED BEFORE ENACTMENT 
OF DETAINEE TREATMENT ACT OF 2005.—A statement 
obtained before December 30, 2005 (the date of the enact-
ment of the Defense Treatment Act of 2005) in which the 
degree of coercion is disputed may be admitted only if the 
military judge finds that—
‘‘(1) the totality of the circumstances renders 
the statement reliable and possessing sufficient pro-
bative value; and 
‘‘(2) the interests of justice would best be 
served by admission of the statement into evidence. 
‘‘(d) STATEMENTS OBTAINED AFTER ENACTMENT 
OF DETAINEE TREATMENT ACT OF 2005.—A statement 
obtained on or after December 30, 2005 (the date of the 
enactment of the Defense Treatment Act of 2005) in
which the degree of coercion is disputed may be admitted 
only if the military judge finds that—
‘‘(1) the totality of the circumstances renders 
the statement reliable and possessing sufficient pro-
bative value; 
‘‘(2) the interests of justice would best be 
served by admission of the statement into evidence; 
and 
‘‘(3) the interrogation methods used to obtain 
the statement do not amount to cruel, inhuman, or 
degrading treatment prohibited by section 1003 of 
the Detainee Treatment Act of 2005. 
‘‘§ 948s. Service of charges 
‘‘The trial counsel assigned to a case before a military 
commission 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. Such charges 
shall be served in English and, if appropriate, in another 
language that the accused understands. Such service shall 
be made sufficiently in advance of trial to prepare a de-
fense. 
‘‘SUBCHAPTER IV—TRIAL PROCEDURE
‘‘Sec. 
‘‘949a. Rules. 
‘‘949b. Unlawfully influencing action of military commission. 
‘‘949c. Duties of trial counsel and defense counsel. 
‘‘949d. Sessions. 
‘‘949e. Continuances. 
‘‘949f. Challenges.
‘‘949g. Oaths. 
‘‘949h. Former jeopardy. 
‘‘949i. Pleas of the accused. 
‘‘949j. Opportunity to obtain witnesses and other evidence. 
‘‘949k. Defense of lack of mental responsibility. 
‘‘949l. Voting and rulings. 
‘‘949m. Number of votes required. 
‘‘949n. Military commission to announce action. 
‘‘949o. Record of trial.
‘‘§ 949a. Rules 
‘‘(a) PROCEDURES AND RULES OF EVIDENCE.—Pre-
trial, trial, and post-trial procedures, including elements 
and modes of proof, for cases triable by military commis-
sion under this chapter may be prescribed by the Secretary 
of Defense, in consultation with the Attorney General. 
Such procedures shall, so far as the Secretary considers 
practicable or consistent with military or intelligence ac-
tivities, apply the principles of law and the rules of evi-
dence in trial by general courts-martial. Such procedures 
and rules of evidence may not be contrary to or incon-
sistent with this chapter. 
‘‘(b) RULES FOR MILITARY COMMISSION.—(1) Not-
withstanding any departures from the law and the rules 
of evidence in trial by general courts-martial authorized 
by subsection (a), the procedures and rules of evidence in 
trials by military commission under this chapter shall in-
clude the following: 
‘‘(A) The accused shall be permitted to present 
evidence in his defense, to cross-examine the wit-
nesses who testify against him, and to examine and
respond to evidence admitted against him on the 
issue of guilt or innocence and for sentencing, as 
provided for by this chapter. 
‘‘(B) The accused shall be present at all ses-
sions of the military commission (other than those 
for deliberations or voting), except when excluded 
under section 949d of this title. 
‘‘(C) The accused shall receive the assistance of 
counsel as provided for by section 948k. 
‘‘(D) The accused shall be permitted to rep-
resent himself, as provided for by paragraph (3). 
‘‘(2) In establishing procedures and rules of evidence 
for military commission proceedings, the Secretary of De-
fense may prescribe the following provisions: 
‘‘(A) Evidence shall be admissible if the mili-
tary judge determines that the evidence would have 
probative value to a reasonable person. 
‘‘(B) Evidence shall not be excluded from trial 
by military commission on the grounds that the evi-
dence was not seized pursuant to a search warrant 
or other authorization. 
‘‘(C) A statement of the accused that is other-
wise admissible shall not be excluded from trial by 
military commission on grounds of alleged coercion 
or compulsory self-incrimination so long as the evi-
dence complies with the provisions of section 948r of 
this title. 
‘‘(D) Evidence shall be admitted as authentic so 
long as—
‘‘(i) the military judge of the military com-
mission determines that there is sufficient basis 
to find that the evidence is what it is claimed 
to be; and 
‘‘(ii) the military judge instructs the mem-
bers that they may consider any issue as to au-
thentication or identification of evidence in de-
termining the weight, if any, to be given to the 
evidence. 
‘‘(E)(i) Except as provided in clause (ii), hear-
say 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 if 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 intention of the proponent 
to offer the evidence, and the particulars of the evi-
dence (including information on the general cir-
cumstances under which the evidence was obtained). 
The disclosure of evidence under the preceding sen-
tence is subject to the requirements and limitations 
applicable to the disclosure of classified information 
in section 949j(c) of this title. 
‘‘(ii) Hearsay evidence not otherwise admissible 
under the rules of evidence applicable in trial by 
general courts-martial shall not be admitted in a 
trial by military commission if the party opposing 
the admission of the evidence demonstrates that the 
evidence is unreliable or lacking in probative value. 
‘‘(F) The military judge shall exclude any evi-
dence the probative value of which is substantially 
outweighed—
‘‘(i) by the danger of unfair prejudice, con-
fusion of the issues, or misleading the commis-
sion; or 
‘‘(ii) by considerations of undue delay, 
waste of time, or needless presentation of cu-
mulative evidence. 
‘‘(3)(A) The accused in a military commission under 
this chapter who exercises the right to self-representation 
under paragraph (1)(D) shall conform his deportment and 
the conduct of the defense to the rules of evidence, proce-
dure, and decorum applicable to trials by military commis-
sion.
‘‘(B) Failure 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 paragraph (1)(D). In such case, the 
detailed defense counsel of the accused or an appropriately 
authorized civilian counsel shall perform the functions nec-
essary for the defense. 
‘‘(c) DELEGATION
OF AUTHORITY
TO PRESCRIBE 
REGULATIONS.—The Secretary of Defense may delegate 
the authority of the Secretary to prescribe regulations 
under this chapter. 
‘‘(d) NOTIFICATION
TO CONGRESSIONAL COMMIT-
TEES OF CHANGES TO PROCEDURES.—Not later than 60 
days before the date on which any proposed modification 
of the procedures 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 Committee on Armed Services of the 
House of Representatives a report describing the modifica-
tion. 
‘‘§ 949b. Unlawfully influencing action of military 
commission 
‘‘(a) IN GENERAL.—(1) No authority convening a 
military commission under this chapter may censure, rep-
rimand, or admonish the military commission, or any
member, military judge, or counsel thereof, with respect 
to the findings or sentence adjudged by the military com-
mission, or with respect to any other exercises of its or 
his functions in the conduct of the proceedings. 
‘‘(2) No person may attempt to coerce or, by any un-
authorized 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 his judicial acts; 
or 
‘‘(C) the exercise of professional judgment by 
trial counsel or defense counsel. 
‘‘(3) Paragraphs (1) and (2) do not apply with re-
spect to—
‘‘(A) general instructional or informational 
courses in military justice if such courses are de-
signed solely for the purpose of instructing members 
of a command in the substantive and procedural as-
pects of military commissions; or 
‘‘(B) statements and instructions given in open 
proceedings by a military judge or counsel. 
‘‘(b) PROHIBITION ON CONSIDERATION OF ACTIONS 
ON COMMISSION IN EVALUATION OF FITNESS.—In the
preparation of an effectiveness, 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 zeal with 
which such officer, in acting as counsel, represented 
any accused before a military commission under this 
chapter. 
‘‘§ 949c. Duties of trial counsel and defense counsel 
‘‘(a) TRIAL COUNSEL.—The trial counsel of a mili-
tary commission under this chapter shall prosecute in the 
name of the United States. 
‘‘(b) DEFENSE COUNSEL.—(1) The accused shall be 
represented in his defense before a military commission 
under this chapter as provided in this subsection. 
‘‘(2) The accused shall be represented by military 
counsel detailed under section 948k of this title.
‘‘(3) The accused may be represented by civilian 
counsel if retained by the accused, but only if such civilian 
counsel—
‘‘(A) is a United States citizen; 
‘‘(B) is admitted to the practice of law in a 
State, district, or possession of the United States or 
before a Federal court; 
‘‘(C) has not been the subject of any sanction 
of disciplinary action by any court, bar, or other 
competent governmental authority for relevant mis-
conduct; 
‘‘(D) has been determined to be eligible for ac-
cess to classified information that is 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) Civilian defense counsel shall protect any classi-
fied information received during the course of representa-
tion of the accused in accordance with all applicable law 
governing the protection of classified information and may 
not divulge such information to any person not authorized 
to receive it.
‘‘(5) If the accused is represented by civilian counsel, 
detailed military counsel shall act as associate counsel. 
‘‘(6) The accused is not entitled to be represented by 
more than one military counsel. However, the person au-
thorized under regulations prescribed under section 948k 
of this title to detail counsel, in that person’s sole discre-
tion, may detail additional military counsel to represent 
the accused. 
‘‘(7) Defense counsel may cross-examine each witness 
for the prosecution who testifies before a military commis-
sion under this chapter. 
‘‘§ 949d. Sessions 
‘‘(a) SESSIONS
WITHOUT
PRESENCE
OF
MEM-
BERS.—(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 com-
mission 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 deter-
mination 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 
‘‘(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 (c) and (e), 
any proceedings under paragraph (1) shall—
‘‘(A) be conducted in the presence of the ac-
cused, defense counsel, and trial counsel; and 
‘‘(B) be made part of the record. 
‘‘(b) PROCEEDINGS IN PRESENCE OF ACCUSED.—
Except as provided in subsections (c) and (e), all pro-
ceedings of a military commission under this chapter, in-
cluding any consultation of the members with the military 
judge or counsel, shall—
‘‘(1) be in the presence of the accused, defense 
counsel, and trial counsel; and 
‘‘(2) be made a part of the record.
‘‘(c) DELIBERATION OR VOTE OF MEMBERS.—When 
the members of a military commission under this chapter 
deliberate or vote, only the members may be present. 
‘‘(d) 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, but only in 
accordance with this subsection. 
‘‘(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 nec-
essary to—
‘‘(A) protect information the disclosure of which 
could reasonably be expected to cause damage to the 
national security, including intelligence or law en-
forcement sources, methods, or activities; or 
‘‘(B) ensure the physical safety of individuals. 
‘‘(3) A finding under paragraph (2) may be based 
upon a presentation, including a presentation ex parte or 
in camera, by either trial counsel or defense counsel. 
‘‘(e) EXCLUSION OF ACCUSED FROM CERTAIN PRO-
CEEDINGS.—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 court-
room—
‘‘(1) to ensure the physical safety of individuals; 
or 
‘‘(2) to prevent disruption of the proceedings by 
the accused. 
‘‘(f) PROTECTION OF CLASSIFIED INFORMATION.—
‘‘(1) NATIONAL
SECURITY
PRIVILEGE.—(A) 
Classified information shall be protected and is privi-
leged from disclosure if disclosure would be detri-
mental to the national security. The rule in the pre-
ceding sentence applies to all stages of the pro-
ceedings of military commissions under this chapter. 
‘‘(B) The privilege referred to in subparagraph 
(A) may be claimed by the head of the executive or 
military department or government agency con-
cerned based on a finding by the head of that de-
partment or agency that—
‘‘(i) the information is properly classified; 
and 
‘‘(ii) disclosure of the information would be 
detrimental to the national security. 
‘‘(C) A person who may claim the privilege re-
ferred to in subparagraph (A) may authorize a rep-
resentative, witness, or trial counsel to claim the 
privilege and make the finding described in subpara-
graph (B) on behalf of such person. The authority
of the representative, witness, or trial counsel to do 
so is presumed in the absence of evidence to the con-
trary. 
‘‘(2) INTRODUCTION OF CLASSIFIED INFORMA-
TION.—
‘‘(A) ALTERNATIVES TO DISCLOSURE.—To 
protect classified information from disclosure, 
the military judge, upon motion of trial counsel, 
shall authorize, to the extent practicable—
‘‘(i) the deletion of specified items of 
classified information from documents to 
be introduced as evidence before the mili-
tary commission; 
‘‘(ii) the substitution of a portion or 
summary of the information for such clas-
sified documents; or 
‘‘(iii) the substitution of a statement 
of relevant facts that the classified infor-
mation would tend to prove. 
‘‘(B) PROTECTION OF SOURCES, METHODS, 
OR ACTIVITIES.—The military judge, upon mo-
tion of trial counsel, shall permit trial counsel 
to introduce otherwise admissible evidence be-
fore the military commission, while protecting 
from disclosure the sources, methods, or activi-
ties by which the United States acquired the 
evidence if the military judge finds that (i) the 
sources, methods, or activities by which the 
United States acquired the evidence are classi-
fied, and (ii) the evidence is reliable. The mili-
tary judge may require trial counsel to present 
to the military commission and the defense, to 
the extent practicable and consistent with na-
tional security, an unclassified summary of the 
sources, methods, or activities by which the 
United States acquired the evidence. 
‘‘(C) ASSERTION OF NATIONAL SECURITY 
PRIVILEGE AT TRIAL.—During the examination 
of any witness, trial counsel may object to any 
question, line of inquiry, or motion to admit evi-
dence that would require the disclosure of clas-
sified information. Following such an objection, 
the military judge shall take suitable action to 
safeguard such classified information. Such ac-
tion may include the review of trial counsel’s 
claim of privilege by the military judge in cam-
era and on an ex parte basis, and the delay of 
proceedings to permit trial counsel to consult 
with the department or agency concerned as to
whether the national security privilege should 
be asserted. 
‘‘(3) CONSIDERATION OF PRIVILEGE AND RE-
LATED MATERIALS.—A claim of privilege under this 
subsection, and any materials submitted in support 
thereof, shall, upon request of the Government, be 
considered by the military judge in camera and shall 
not be disclosed to the accused. 
‘‘(4) ADDITIONAL
REGULATIONS.—The Sec-
retary of Defense may prescribe additional regula-
tions, consistent with this subsection, for the use 
and protection of classified information during pro-
ceedings of military commissions under this chapter. 
A report on any regulations so prescribed, or modi-
fied, shall be submitted to the Committees on Armed 
Services of the Senate and the House of Representa-
tives not later than 60 days before the date on which 
such regulations or modifications, as the case may 
be, go into effect. 
‘‘§ 949e. Continuances 
‘‘The military judge in a military commission under 
this chapter may, for reasonable cause, grant a continu-
ance to any party for such time, and as often, as may 
appear to be just.
‘‘§ 949f. Challenges 
‘‘(a) CHALLENGES
AUTHORIZED.—The military 
judge and members of a military commission under this 
chapter may be challenged by the accused or trial counsel 
for cause stated to the commission. The military judge 
shall determine the relevance and validity of challenges for 
cause. The military judge may not receive a challenge to 
more than one person at a time. Challenges by trial coun-
sel shall ordinarily be presented and decided before those 
by the accused are offered. 
‘‘(b) PEREMPTORY
CHALLENGES.—Each accused 
and the trial counsel are entitled to one peremptory chal-
lenge. The military judge may not be challenged except 
for cause. 
‘‘(c) CHALLENGES
AGAINST
ADDITIONAL
MEM-
BERS.—Whenever additional members are detailed to a 
military commission under this chapter, and after any 
challenges for cause against such additional members are 
presented and decided, each accused and the trial counsel 
are entitled to one peremptory challenge against members 
not previously subject to peremptory challenge. 
‘‘§ 949g. Oaths 
‘‘(a) IN GENERAL.—(1) Before performing their re-
spective duties in a military commission under this chap-
ter, military judges, members, trial counsel, defense coun-
sel, reporters, and interpreters shall take an oath to per-
form 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 the same, 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 prescribed in regulations of 
the Secretary of Defense. Those regulations 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. 
‘‘§ 949h. Former jeopardy 
‘‘(a) IN GENERAL.—No person may, without his con-
sent, 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) ENTRY OF PLEA OF NOT GUILTY.—If an ac-
cused in a military commission under this chapter after 
a plea of guilty sets up matter inconsistent 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 mili-
tary commission 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 com-
mission 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 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) RIGHT OF DEFENSE COUNSEL.—Defense coun-
sel in a military commission under this chapter shall have 
a reasonable opportunity to obtain witnesses and other evi-
dence as provided in regulations prescribed by the Sec-
retary of Defense. 
‘‘(b) PROCESS FOR COMPULSION.—Process issued in 
a military commission under this chapter to compel wit-
nesses to appear and testify and to compel the production 
of other evidence—
‘‘(1) shall be similar to that which courts of the 
United States having criminal jurisdiction may law-
fully issue; and 
‘‘(2) shall run to any place where the United 
States shall have jurisdiction thereof. 
‘‘(c) PROTECTION OF CLASSIFIED INFORMATION.—
(1) With respect to the discovery obligations of trial coun-
sel under this section, the military judge, upon motion of 
trial counsel, shall authorize, to the extent practicable—
‘‘(A) the deletion of specified items of classified 
information from documents to be made available to 
the accused; 
‘‘(B) the substitution of a portion or summary 
of the information for such classified documents; or
‘‘(C) the substitution of a statement admitting 
relevant facts that the classified information would 
tend to prove. 
‘‘(2) The military judge, upon motion of trial counsel, 
shall authorize trial counsel, in the course of complying 
with discovery obligations under this section, to protect 
from disclosure the sources, methods, or activities by 
which the United States acquired evidence if the military 
judge finds that the sources, methods, or activities by 
which the United States acquired such evidence are classi-
fied. The military judge may require trial counsel to pro-
vide, to the extent practicable, an unclassified summary 
of the sources, methods, or activities by which the United 
States acquired such evidence. 
‘‘(d) EXCULPATORY EVIDENCE.—(1) As soon as 
practicable, trial counsel shall disclose to the defense the 
existence of any evidence known to trial counsel that rea-
sonably tends to exculpate the accused. Where exculpatory 
evidence is classified, the accused shall be provided with 
an adequate substitute in accordance with the procedures 
under subsection (c). 
‘‘(2) In this subsection, the term ‘evidence known to 
trial counsel’, in the case of exculpatory evidence, means 
exculpatory evidence that the prosecution would be re-
quired to disclose in a trial by general court-martial under 
chapter 47 of this title. 
‘‘§ 949k. Defense of lack of mental responsibility 
‘‘(a) AFFIRMATIVE DEFENSE.—It is an affirmative 
defense in a trial by military commission under this chap-
ter that, at the time of the commission of the acts consti-
tuting the offense, the accused, as a result of a severe 
mental disease or defect, was unable to appreciate the na-
ture 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 DE-
FENSE.—Whenever lack of mental responsibility of the ac-
cused with respect to an offense is properly at issue in 
a military commission under this chapter, the military 
judge shall instruct the members of the commission as to 
the defense of lack of mental responsibility under this sec-
tion and shall charge them to find the accused—
‘‘(1) guilty; 
‘‘(2) not guilty; or 
‘‘(3) subject to subsection (d), not guilty by rea-
son 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 re-
sponsibility has been established. 
‘‘§ 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 writ-
ten ballot. 
‘‘(b) RULINGS.—(1) The military judge in a military 
commission under this chapter shall rule upon all ques-
tions 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 his 
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 his guilt is established by legal and 
competent evidence beyond a reasonable doubt; 
‘‘(2) that in the case being considered, if there 
is a reasonable doubt as to the guilt of the accused, 
the doubt must be resolved in favor of the accused 
and he must be acquitted; 
‘‘(3) that, if there is reasonable doubt as to the 
degree of guilt, the finding must be in a lower de-
gree 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) No person may be sentenced 
by a military commission to suffer death, except insofar 
as—
‘‘(A) the penalty of death is expressly author-
ized under this chapter or the law of war for an of-
fense 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 is convicted of the offense by 
the concurrence of all the members present at the 
time the vote is taken; and 
‘‘(D) all the members present at the time the 
vote is taken concur in the sentence of death. 
‘‘(2) No person may be sentenced to life imprison-
ment, or to confinement for more than 10 years, by a mili-
tary commission under this chapter except by the concur-
rence of three-fourths of the members present at the time 
the vote is taken. 
‘‘(3) All other 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. 
‘‘(c) NUMBER OF MEMBERS REQUIRED FOR PEN-
ALTY OF DEATH.—(1) Except as provided in paragraph 
(2), in a case in which the penalty of death is sought, the 
number of members of the military commission under this 
chapter shall be not less than 12.
‘‘(2) In any case described in paragraph (1) in which 
12 members are not reasonably available because of phys-
ical conditions or military exigencies, the convening au-
thority shall specify a lesser number of members for the 
military commission (but not fewer than 9 members), and 
the military commission may be assembled, and the trial 
held, with not fewer than the number of members so speci-
fied. In such a case, the convening authority shall make 
a detailed written statement, to be appended to the record, 
stating why a greater number of members were not rea-
sonably available. 
‘‘§ 949n. Military commission to announce action 
‘‘A military commission under this chapter shall an-
nounce its findings and sentence to the parties as soon 
as determined. 
‘‘§ 949o. Record of trial 
‘‘(a) RECORD; AUTHENTICATION.—Each military 
commission under this chapter shall keep a separate, ver-
batim, record of the proceedings in each case brought be-
fore it, and the record shall be authenticated by the signa-
ture of the military judge. If the record cannot be authen-
ticated by the military judge by reason of his death, dis-
ability, or absence, it shall be authenticated by the signa-
ture of the trial counsel or by a member of the commission 
if the trial counsel is unable to authenticate it by reason
of his death, disability, or absence. Where appropriate, 
and as provided in regulations prescribed by the Secretary 
of Defense, the record of a military commission under this 
chapter may contain a classified annex. 
‘‘(b) COMPLETE RECORD REQUIRED.—A complete 
record of the proceedings and testimony shall be prepared 
in every military commission under this chapter. 
‘‘(c) PROVISION 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 infor-
mation, or a classified annex, the accused shall be given 
a redacted version of the record consistent with the re-
quirements of section 949d of this title. Defense counsel 
shall have access to the unredacted record, as provided 
in regulations prescribed by the Secretary of Defense. 
‘‘SUBCHAPTER V—SENTENCES
‘‘Sec. 
‘‘949s. Cruel or unusual punishments prohibited. 
‘‘949t. Maximum limits. 
‘‘949u. Execution of confinement.
‘‘§ 949s. Cruel or unusual punishments prohibited 
‘‘Punishment by flogging, or by branding, marking, 
or tattooing on the body, or any other cruel or unusual 
punishment, may not be adjudged by a military commis-
sion under this chapter or inflicted under this chapter 
upon any person subject to this chapter. The use of irons,
single or double, except for the purpose of safe custody, 
is prohibited under this chapter. 
‘‘§ 949t. Maximum 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 Defense may pre-
scribe for that offense. 
‘‘§ 949u. Execution of confinement 
‘‘(a) IN GENERAL.—Under such regulations as the 
Secretary of Defense may prescribe, a sentence of confine-
ment adjudged by a military commission under this chap-
ter may be carried into execution by confinement—
‘‘(1) in any place of confinement under the con-
trol of any of the armed forces; or 
‘‘(2) in any penal or correctional institution 
under the control of the United States or its allies, 
or which the United States may be allowed to use. 
‘‘(b) TREATMENT DURING CONFINEMENT BY OTHER 
THAN
THE ARMED FORCES.—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 com-
mitted by the courts of the United States or of the State, 
District of Columbia, or place in which the institution is 
situated.
‘‘SUBCHAPTER VI—POST-TRIAL PROCEDURE 
AND REVIEW OF MILITARY COMMISSIONS
‘‘Sec. 
‘‘950a. Error of law; lesser included offense. 
‘‘950b. Review by the convening authority. 
‘‘950c. Appellate referral; waiver or withdrawal of appeal. 
‘‘950d. Appeal by the United States. 
‘‘950e. Rehearings. 
‘‘950f. Review by Court of Military Commission Review. 
‘‘950g. Review by the United States Court of Appeals for the District of Colum-
bia Circuit and the Supreme Court. 
‘‘950h. Appellate counsel. 
‘‘950i. Execution of sentence; procedures for execution of sentence of death. 
‘‘950j. Finality or proceedings, findings, and sentences.
‘‘§ 950a. Error of law; lesser included offense 
‘‘(a) ERROR OF LAW.—A finding or sentence of a 
military commission under this chapter may not be held 
incorrect on the ground of an error of law unless the error 
materially prejudices the substantial rights of the accused. 
‘‘(b) LESSER INCLUDED OFFENSE.—Any reviewing 
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 in-
cludes a lesser included offense. 
‘‘§ 950b. Review by the convening authority 
‘‘(a) NOTICE TO CONVENING AUTHORITY OF FIND-
INGS AND SENTENCE.—The 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) SUBMITTAL OF MATTERS BY ACCUSED TO CON-
VENING AUTHORITY.—(1) The accused may submit to the 
convening authority matters for consideration by the con-
vening authority with respect to the findings and the sen-
tence of the military commission under this chapter. 
‘‘(2)(A) Except as provided in subparagraph (B), a 
submittal under paragraph (1) shall be made in writing 
within 20 days after the accused has been given an au-
thenticated record of trial under section 949o(c) of this 
title. 
‘‘(B) If the accused shows that additional time is re-
quired for the accused to make a submittal under para-
graph (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 his right to make a sub-
mittal 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 sub-
mittal 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 con-
vening authority. 
‘‘(2)(A) The convening authority shall take action on 
the sentence of a military commission under this chapter. 
‘‘(B) Subject to regulations prescribed by the Sec-
retary of Defense, action on the sentence under this para-
graph may be taken only after consideration of any mat-
ters submitted by the accused under subsection (b) or 
after the time for submitting such matters expires, which-
ever is earlier. 
‘‘(C) In taking action under this paragraph, the con-
vening authority may, in his sole discretion, approve, dis-
approve, commute, or suspend the sentence in whole or 
in part. The convening authority may not increase a sen-
tence beyond that which is found by the military commis-
sion. 
‘‘(3) 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 his sole discre-
tion, may—
‘‘(A) dismiss any charge or specification by set-
ting 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 in-
cluded offense of the offense stated in the charge. 
‘‘(4) The convening authority shall serve on the ac-
cused or on defense counsel notice of any action taken by 
the convening authority under this subsection. 
‘‘(d) ORDER OF REVISION OR REHEARING.—(1) Sub-
ject to paragraphs (2) and (3), the convening authority 
of a military commission under this chapter may, in his 
sole discretion, order a proceeding in revision or a rehear-
ing. 
‘‘(2)(A) Except 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 substantial rights of the 
accused. 
‘‘(B) In no case may a proceeding in revision—
‘‘(i) reconsider a finding of not guilty of a spec-
ification 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 un-
less the sentence prescribed for the offense is man-
datory. 
‘‘(3) A rehearing may be ordered by the convening 
authority if the convening authority disapproves the find-
ings and sentence and states the reasons for disapproval 
of the findings. If the convening 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 sen-
tence may be ordered by the convening authority if the 
convening authority disapproves the sentence. 
‘‘§ 950c. Appellate referral; waiver or withdrawal of 
appeal 
‘‘(a) AUTOMATIC REFERRAL FOR APPELLATE RE-
VIEW.—Except as provided under subsection (b), in each 
case in which the final decision of a military commission 
(as approved by the convening authority) includes a find-
ing of guilty, the convening authority shall refer the case
to the Court of Military Commission Review. Any such re-
ferral shall be made in accordance with procedures pre-
scribed under regulations of the Secretary. 
‘‘(b) WAIVER OF RIGHT OF REVIEW.—(1) In each 
case subject to appellate review under section 950f of this 
title, except a case in which the sentence as approved 
under section 950b of this title extends to death, the ac-
cused may file with the convening authority a statement 
expressly waiving the right of the accused to such review. 
‘‘(2) A waiver under paragraph (1) shall be signed 
by both the accused and a defense counsel. 
‘‘(3) A waiver under paragraph (1) must be filed, if 
at all, within 10 days after notice on the action is served 
on the accused or on defense counsel under section 
950b(c)(4) of this title. The convening authority, for good 
cause, may extend the period for such filing by not more 
than 30 days. 
‘‘(c) WITHDRAWAL OF APPEAL.—Except in a case in 
which the sentence as approved under section 950b of this 
title extends to death, the accused may withdraw an ap-
peal at any time. 
‘‘(d) EFFECT
OF WAIVER
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. Appeal by the United States 
‘‘(a) INTERLOCUTORY APPEAL.—(1) Except as pro-
vided in paragraph (2), in a trial by military commission 
under this chapter, the United States may take an inter-
locutory appeal to the Court of Military Commission Re-
view of any order or ruling of the military judge that—
‘‘(A) terminates proceedings of the military 
commission with respect to a charge or specification; 
‘‘(B) excludes evidence that is substantial proof 
of a fact material in the proceeding; or 
‘‘(C) relates to a matter under subsection (d), 
(e), or (f) of section 949d of this title or section 
949j(c) of this title. 
‘‘(2) The United States may not appeal under para-
graph (1) an order or ruling that is, or amounts to, a find-
ing of not guilty by the military commission with respect 
to a charge or specification. 
‘‘(b) NOTICE OF APPEAL.—The United States shall 
take an appeal of an order or ruling under subsection (a) 
by filing a notice of appeal with the military judge within 
five days after the date of such order or ruling. 
‘‘(c) APPEAL.—An appeal under this section shall be 
forwarded, by means specified in regulations prescribed 
the Secretary of Defense, directly to the Court of Military 
Commission Review. In ruling on an appeal under this sec-
tion, the Court may act only with respect to matters of 
law. 
‘‘(d) APPEAL FROM ADVERSE RULING.—The United 
States may appeal an adverse ruling on an appeal under 
subsection (c) to the United States Court of Appeals for 
the District of Columbia Circuit by filing a petition for 
review in the Court of Appeals within 10 days after the 
date of such ruling. Review under this subsection shall be 
at the discretion of the Court of Appeals. 
‘‘§ 950e. Rehearings 
‘‘(a) COMPOSITION OF MILITARY COMMISSION FOR 
REHEARING.—Each rehearing under this chapter shall 
take place before a military commission under this chapter 
composed of members who were not members of the mili-
tary commission which first heard the case. 
‘‘(b) SCOPE OF REHEARING.—(1) Upon a rehear-
ing—
‘‘(A) the accused may not be tried for any of-
fense of which he was found not guilty by the first 
military commission; 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 of-
fense is mandatory. 
‘‘(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 specifica-
tions upon which the pretrial agreement was based, or oth-
erwise does not comply with pretrial agreement, the sen-
tence as to those charges or specifications may include any 
punishment not in excess of that lawfully adjudged at the 
first military commission. 
‘‘§ 950f. Review by Court of Military Commission Re-
view 
‘‘(a) ESTABLISHMENT.—The Secretary of Defense 
shall establish a Court of Military Commission Review 
which shall be composed of one or more panels, and each 
such panel shall be composed of not less than three appel-
late military judges. For the purpose of reviewing military 
commission decisions under this chapter, the court may 
sit in panels or as a whole in accordance with rules pre-
scribed by the Secretary. 
‘‘(b) APPELLATE MILITARY JUDGES.—The Secretary 
shall assign appellate military judges to a Court of Mili-
tary Commission Review. Each appellate military judge 
shall meet the qualifications for military judges prescribed
by section 948j(b) of this title or shall be a civilian with 
comparable qualifications. No person may be serve as an 
appellate military judge in any case in which that person 
acted as a military judge, counsel, or reviewing official. 
‘‘(c) CASES TO BE REVIEWED.—The Court of Mili-
tary Commission Review, in accordance with procedures 
prescribed under regulations of the Secretary, shall review 
the record in each case that is referred to the Court by 
the convening authority under section 950c of this title 
with respect to any matter of law raised by the accused. 
‘‘(d) SCOPE OF REVIEW.—In a case reviewed by the 
Court of Military Commission Review under this section, 
the Court may act only with respect to matters of law. 
‘‘§ 950g. Review by the United States Court of Ap-
peals for the District of Columbia Circuit 
and the Supreme Court 
‘‘(a) EXCLUSIVE APPELLATE JURISDICTION.—(1)(A) 
Except as provided in subparagraph (B), the United 
States Court of Appeals for the District of Columbia Cir-
cuit shall have exclusive jurisdiction to determine the va-
lidity of a final judgment rendered by a military commis-
sion (as approved by the convening authority) under this 
chapter.
‘‘(B) The Court of Appeals may not review the final 
judgment until all other appeals under this chapter have 
been waived or exhausted. 
‘‘(2) A petition for review must be filed by the ac-
cused in the Court of Appeals not later than 20 days after 
the date on which—
‘‘(A) written notice of the final decision of the 
Court of Military Commission Review is served on 
the accused or on defense counsel; or 
‘‘(B) the accused submits, in the form pre-
scribed by section 950c of this title, a written notice 
waiving the right of the accused to review by the 
Court of Military Commission Review under section 
950f of this title. 
‘‘(b) STANDARD FOR REVIEW.—In a case reviewed 
by it under this section, the Court of Appeals may act 
only with respect to matters of law. 
‘‘(c) SCOPE OF REVIEW.—The jurisdiction of the 
Court of Appeals on an appeal under subsection (a) shall 
be limited to the consideration of—
‘‘(1) whether the final decision was consistent 
with the standards and procedures specified in this 
chapter; and 
‘‘(2) to the extent applicable, the Constitution 
and the laws of the United States.