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10 U.S.C. § 949m (ARMED FORCES)
§ 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 commission, 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by the concurrence of all the members present at the time the vote is taken, or a guilty plea was accepted and not withdrawn prior to announcement of the sentence in accordance with section 949i(b) of this title; and
(D) all members present at the time the vote was taken on the sentence 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.
(c) Number of Members Required for Penalty 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 members.
(2) In 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 commission (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 make a detailed written statement, to be appended to the record, stating why a greater number of members were not reasonably available.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2589; amended Pub. L. 112–81, div. A, title X, § 1030(a), Dec. 31, 2011, 125 Stat. 1570.)
heading: Prior Provisions
text: A prior section 949m, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2616, related to number of votes required for conviction and sentences and number of members required on military commission for penalty of death, prior to the general amendment of this chapter by Pub. L. 111–84.
heading: Amendments
text: 2011—Subsec. (b)(2)(C). Pub. L. 112–81, § 1030(a)(1), inserted before semicolon “, or a guilty plea was accepted and not withdrawn prior to announcement of the sentence in accordance with section 949i(b) of this title”.
Subsec. (b)(2)(D). Pub. L. 112–81, § 1030(a)(2), inserted “on the sentence” after “vote was taken”.
10 U.S.C. § 949n (ARMED FORCES)
§ 949n. Military commission to announce action
A military commission under this chapter shall announce its findings and sentence to the parties as soon as determined.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2590.)
heading: Prior Provisions
text: A prior section 949n, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2617, required a military commission to announce its findings and sentence as soon as determined, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949o (ARMED FORCES)
§ 949o. Record of trial
(a) Record; 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 judge. 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. 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 information, or a classified annex, the accused shall receive a redacted version of the record consistent with the requirements 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2590.)
heading: Prior Provisions
text: A prior section 949o, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2617, related to record of trial, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949p–1 (ARMED FORCES)
§ 949p–1. Protection of classified information: applicability of subchapter
(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 no circumstances may a military judge order the release of classified information to any person not authorized to receive such information.
(b) Access to Evidence.—
Any information admitted into evidence pursuant to any rule, procedure, or order by the military judge shall be provided to the accused.
(c) Declassification.—
Trial counsel shall work with the original classification authorities for evidence that may be used at trial to ensure that such evidence is declassified to the maximum extent possible, consistent with the requirements of national security. A decision not to declassify evidence under this section shall not be subject to review by a military commission or upon appeal.
(d) Construction of Provisions.—
The judicial construction of the Classified Information Procedures Act (18 U.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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2590.)
heading: References in Text
text: The Classified Information Procedures Act, referred to in subsec. (d), is Pub. L. 96–456, Oct. 15, 1980, 94 Stat. 2025, which is set out in the Appendix to Title 18, Crimes and Criminal Procedure.
10 U.S.C. § 949p–2 (ARMED FORCES)
§ 949p–2. Pretrial conference
(a) Motion.—
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.—
Following 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 Be Established at Pretrial Conference.—
(1) Timing of subsequent actions.—
At the pretrial conference, the military judge shall establish the timing of—
(A) requests for discovery;
(B) the provision of notice required by section 949p–5 of this title; and
(C) the initiation of the procedure established by section 949p–6 of this title.
(2) Other matters.—
At the pretrial conference, the military 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 by Accused at Pretrial Conference.—
No 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2591.)
heading: References in Text
text: The Classified Information Procedures Act, referred to in subsec. (b), is Pub. L. 96–456, Oct. 15, 1980, 94 Stat. 2025, which is set out in the Appendix to Title 18, Crimes and Criminal Procedure.
10 U.S.C. § 949p–3 (ARMED FORCES)
§ 949p–3. Protective orders
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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2591.)
10 U.S.C. § 949p–5 (ARMED FORCES)
§ 949p–5. Notice by accused of intention to disclose classified information
(a) Notice by Accused.—
(1) Notification of trial counsel and military judge.—
If 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 specified, within 30 days before trial, notify the trial counsel and the military judge in writing. Such notice shall include a brief description of the classified information. Whenever the accused learns of additional classified information the accused reasonably 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 information.
(2) Limitation 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 United States has been afforded a reasonable opportunity to seek a determination pursuant to the procedure set forth in section 949p–6 of this title and the time for the United States to appeal such determination under section 950d of this title has expired or any appeal under that section by the United States is decided.
(b) Failure To Comply.—
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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2593.)
10 U.S.C. § 949s (ARMED FORCES)
§ 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 commission 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2598.)
heading: Prior Provisions
text: A prior section 949s, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2617, prohibited cruel or unusual punishments, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949t (ARMED FORCES)
§ 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 prescribe for that offense.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2598.)
heading: Prior Provisions
text: A prior section 949t, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2617, related to maximum limits of punishment, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949u (ARMED FORCES)
§ 949u. Execution of confinement
(a) In General.—
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 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 committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2598.)
heading: Prior Provisions
text: A prior section 949u, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2617, related to execution of a sentence of confinement, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 950a (ARMED FORCES)
§ 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 includes a lesser included offense.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2599.)
heading: Prior Provisions
text: A prior section 950a, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2618, related to error of law and lesser included offense, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 950c (ARMED FORCES)
§ 950c. Appellate referral; waiver or withdrawal of appeal
(a) Automatic Referral for Appellate Review.—
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 United States Court of Military Commission Review. Any such referral shall be made in accordance with procedures prescribed under regulations of the Secretary.
(b) Waiver of Right of Review.—
(1) Except in a case in which the sentence as approved under section 950b 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.
(3) A waiver under paragraph (1) must be filed, if at all, within 10 days after notice of 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 appeal 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2600.)
heading: Prior Provisions
text: A prior section 950c, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2620, related to appellate referral and waiver or withdrawal of appeal, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 950e (ARMED FORCES)
§ 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 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 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 offense 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 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2602.)
heading: Prior Provisions
text: A prior section 950e, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2621, related to rehearings, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 950f (ARMED FORCES)
§ 950f. Review by United States Court of Military Commission Review
(a) Establishment.—
There is a court of record to be known as the “United States Court of Military Commission Review” (in this section referred to as the “Court”). The Court shall consist of one or more panels, each composed of not less than three judges on the Court. For 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 Defense.
(b) Judges.—
(1) Judges on the Court shall be assigned or appointed in a manner consistent with the provisions of this subsection.
(2) The Secretary of Defense may assign persons who are appellate military judges to be judges on the Court. Any judge so assigned shall be a commissioned officer of the armed forces, and shall meet the qualifications for military judges prescribed by section 948j(b) of this title.
(3) The President may appoint, by and with the advice and consent of the Senate, additional judges to the United States Court of Military Commission Review.
(4) No 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 To Be Reviewed.—
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 950c of this title with respect to any matter properly raised by the accused.
(d) Standard and Scope of Review.—
In 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, recognizing that the military commission saw and heard the witnesses.
(e) Rehearings.—
If the Court sets aside the findings or sentence, the Court may, except 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2603; amended Pub. L. 112–81, div. A, title X, § 1034(c), Dec. 31, 2011, 125 Stat. 1573.)
heading: Prior Provisions
text: A prior section 950f, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2621; amended Pub. L. 110–181, div. A, title X, § 1063(a)(6), Jan. 28, 2008, 122 Stat. 322, related to review by Court of Military Commission Review, prior to the general amendment of this chapter by Pub. L. 111–84.
heading: Amendments
text: 2011—Subsec. (a). Pub. L. 112–81 substituted “judges on the Court” for “appellate military judges” in second sentence.
10 U.S.C. § 950h (ARMED FORCES)
§ 950h. Appellate counsel
(a) Appointment.—
The Secretary of Defense shall, by regulation, 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 qualifications 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 General 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 represented 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2604.)
heading: Prior Provisions
text: A prior section 950h, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2622, related to appellate counsel, prior to the general amendment of this chapter by Pub. L. 111–84.