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10 U.S.C. § 949j (ARMED FORCES)
§ 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 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 production 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2587.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 949j, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2614, related to the opportunity to obtain witnesses and other evidence, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949k (ARMED FORCES)
§ 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2588.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 949k, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2615, related to the defense of lack of mental responsibility, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949l (ARMED FORCES)
§ 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 reasonable 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2589.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 949l, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2615, related to voting and rulings, prior to the general amendment of this chapter by Pub. L. 111–84.
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: Editorial Notes
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: Editorial Notes
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: Editorial Notes
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: Editorial Notes
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. § 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: Editorial Notes
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: Editorial Notes
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: Editorial Notes
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: Editorial Notes
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: Editorial Notes
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: Editorial Notes
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. § 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: Editorial Notes
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.
10 U.S.C. § 950i (ARMED FORCES)
§ 950i. Execution of sentence; suspension of sentence
(a) In General.—
The Secretary of Defense is authorized to carry out a sentence imposed by a military commission under this chapter in accordance with such procedures as the Secretary may prescribe.
(b) Execution of Sentence of Death Only Upon Approval by the President.—
If the sentence of a military commission under this chapter extends to death, that part of the sentence providing 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 Final Judgment of Legality 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 judgment 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 Court of Military Commission Review 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.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2605.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 950i, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2623, related to execution of sentence, procedures for execution of sentence of death, and suspension of sentence prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 950j (ARMED FORCES)
§ 950j. Finality of proceedings, 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 required by this chapter, are final and conclusive. Orders publishing the proceedings 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 950i(c) of this title and the authority of the President.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2605.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 950j, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2623; amended Pub. L. 110–181, div. A, title X, § 1063(a)(7), Jan. 28, 2008, 122 Stat. 322, related to finality of proceedings, findings, and sentences, prior to the general amendment of this chapter by Pub. L. 111–84.