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10 U.S.C. § 948h (ARMED FORCES)
§ 948h. Who may convene military commissions
Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2576.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 948h, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2603, related to who may convene military commissions, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 948i (ARMED FORCES)
§ 948i. Who may serve on military commissions
(a) In General.—
Any commissioned officer of the armed forces on active duty is eligible to serve on a military commission under this chapter, including commissioned officers of the reserve components of the armed forces on active duty, commissioned officers of the National Guard on active duty in Federal service, or retired commissioned officers recalled to active duty.
(b) Detail of Members.—
When convening a military commission under this chapter, the convening authority shall detail as members thereof such members of the armed forces eligible under subsection (a) who, in the opinion of the convening authority, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a military commission when such member is the accuser or a witness for the prosecution or has acted as an investigator or counsel in the same case.
(c) Excuse of Members.—
Before a military commission under this chapter is assembled for the trial of a case, the convening authority may excuse a member from participating in the case.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2576.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 948i, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2603, related to who may serve on military commissions, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 948j (ARMED FORCES)
§ 948j. Military judge of a military commission
(a) Detail of Military Judge.—
A military judge shall be detailed to each military commission under this chapter. The Secretary of Defense shall prescribe regulations providing for the manner in which military judges are so detailed to military commissions. The military judge shall preside over each military commission to which such military judge has been detailed.
(b) Eligibility.—
A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court, or a member of the bar of the highest court of a State, and who is certified to be qualified for duty under section 826 of this title (article 26 of the Uniform Code of Military Justice) as a military judge of general courts-martial by the Judge Advocate General of the armed force of which such military judge is a member.
(c) Ineligibility of Certain Individuals.—
No person is eligible to act as military judge in a case of a military commission under this chapter if such person is the accuser or a witness or has acted as investigator or a counsel in the same case.
(d) Consultation With Members; Ineligibility to Vote.—
A military judge detailed to a military commission under this chapter may not consult with the members except in the presence of the accused (except as otherwise provided in section 949d of this title), trial counsel, and defense counsel, nor may such military judge vote with the members.
(e) Other Duties.—
A commissioned officer who is certified to be qualified for duty as a military judge of a military commission under this chapter may perform such other duties as are assigned to such officer by or with the approval of the Judge Advocate General of the armed force of which such officer is a member or the designee of such Judge Advocate General.
(f) Prohibition on Evaluation of Fitness by Convening Authority.—
The convening authority of a military commission under this chapter may not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to the military commission which relates to such judge’s performance of duty as a military judge on the military commission.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2577.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 948j, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2604, related to military judges of military commissions, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 948l (ARMED FORCES)
§ 948l. Detail or employment of reporters and interpreters
(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 military commission qualified court reporters, who shall prepare a verbatim record of the proceedings of and testimony taken before the military commission.
(b) Interpreters.—
Under such regulations as the Secretary of Defense may prescribe, the convening authority of a military commission under this chapter may detail to or employ for the military commission interpreters who shall interpret for the military commission, and, as necessary, for trial counsel and defense counsel for the military commission, 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 military commission, who shall also be responsible for preparing the record of the proceedings of the military commission.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2578.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 948l, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2605, related to detail or employment of reporters and interpreters, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 948q (ARMED FORCES)
§ 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 such matters 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 subsection (a), the accused shall be informed of the charges and specifications against the accused as soon as practicable.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2579.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 948q, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2606, related to charges and specifications, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 948r (ARMED FORCES)
§ 948r. Exclusion of statements obtained by torture or cruel, inhuman, or degrading treatment; prohibition of self-incrimination; admission of other statements of the accused
(a) Exclusion of Statements Obtain by Torture or Cruel, Inhuman, or Degrading Treatment.—
No statement obtained by the use of torture or by cruel, inhuman, or degrading treatment (as defined by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd)), whether or not under color of law, shall be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence that the statement was made.
(b) Self-incrimination Prohibited.—
No person shall be required to testify against himself or herself at a proceeding of a military commission under this chapter.
(c) Other Statements of the Accused.—
A statement of the accused may be admitted in evidence in a military commission under this chapter only if the military judge finds—
(1) that the totality of the circumstances renders the statement reliable and possessing sufficient probative value; and
(2) that—
(A) the statement was made incident to lawful conduct during military operations at the point of capture or during closely related active combat engagement, and the interests of justice would best be served by admission of the statement into evidence; or
(B) the statement was voluntarily given.
(d) Determination of Voluntariness.—
In determining for purposes of subsection (c)(2)(B) whether a statement was voluntarily given, the military judge shall consider the totality of the circumstances, including, as appropriate, the following:
(1) The details of the taking of the statement, accounting for the circumstances of the conduct of military and intelligence operations during hostilities.
(2) The characteristics of the accused, such as military training, age, and education level.
(3) The lapse of time, change of place, or change in identity of the questioners between the statement sought to be admitted and any prior questioning of the accused.
(Added by Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2580.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 948r, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2607; amended Pub. L. 110–181, div. A, title X, § 1063(a)(4), Jan. 28, 2008, 122 Stat. 321, related to prohibition of compulsory self-incrimination and treatment of statements obtained by torture and other statements, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 948s (ARMED FORCES)
§ 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 in English and, if appropriate, in another language that the accused understands, sufficiently in advance of trial to prepare a defense.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2580.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 948s, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2607, related to service of charges, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949c (ARMED FORCES)
§ 949c. Duties of trial counsel and defense counsel
(a) Trial Counsel.—
The trial counsel of a military commission under this chapter shall prosecute in the name of the United States.
(b) Defense Counsel.—
(1) The accused shall be represented in the accused’s defense before a military commission under this chapter as provided in this subsection.
(2) The accused may be represented by military counsel detailed under section 948k of this title or by military counsel of the accused’s own selection, if reasonably available.
(3) The accused may be represented by civilian counsel if retained by the accused, provided that such civilian counsel—
(A) is a United States 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 misconduct;
(D) has been determined to be eligible for access to information classified at the level Secret or higher; and
(E) has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings.
(4) If the accused is represented by civilian counsel, military counsel shall act as associate counsel.
(5) The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 948k of this title to detail counsel, in such person’s sole discretion, may detail additional military counsel to represent the accused.
(6) Defense counsel may cross-examine each witness for the prosecution who testifies before a military commission under this chapter.
(7) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in accordance with all applicable law governing the protection of classified information, and may not divulge such information to any person not authorized to receive it.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2585.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 949c, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2610, related to duties of trial counsel and defense counsel, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949d (ARMED FORCES)
§ 949d. Sessions
(a) Sessions Without Presence of Members.—
(1) At any time after the service of charges which have been referred for trial by military commission under this chapter, the military judge may call the military commission into session without the presence of the members for the purpose of—
(A) hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;
(B) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members;
(C) if permitted by regulations prescribed by the Secretary of Defense, receiving the pleas of the accused; and
(D) performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 949a of this title and which does not require the presence of the members.
(2) Except as provided in subsections (b), (c), and (d), any proceedings under paragraph (1) shall be conducted in the presence of the accused, defense counsel, and trial counsel, and shall be made part of the record.
(b) Deliberation or Vote of Members.—
When the members of a military commission under this chapter deliberate or vote, only the members may be present.
(c) Closure of Proceedings.—
(1) The military judge may close to the public all or part of the proceedings of a military commission under this chapter.
(2) The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon making a specific finding that such closure is necessary to—
(A) protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities; or
(B) ensure the physical safety of individuals.
(3) A finding under paragraph (2) may be based upon a presentation, including a presentation ex parte or in camera, by either trial counsel or defense counsel.
(d) Exclusion of Accused From Certain Proceedings.—
The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom—
(1) to ensure the physical safety of individuals; or
(2) to prevent disruption of the proceedings by the accused.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2585.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 949d, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2611, related to sessions of military commissions, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949e (ARMED FORCES)
§ 949e. Continuances
The military judge in a military commission under this chapter may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2586.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 949e, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2613, related to continuances, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949f (ARMED FORCES)
§ 949f. Challenges
(a) Challenges Authorized.—
The military judge and primary or alternate members of a military commission under this chapter may be challenged by the accused or trial counsel for cause stated to the military commission. The military judge shall determine the relevance and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by trial counsel shall ordinarily be presented and decided before those by the accused are offered.
(b) Peremptory Challenges.—
The accused and trial counsel are each entitled to one peremptory challenge, but the military judge may not be challenged except for cause. Nothing in this section prohibits the military judge from awarding to each party such additional peremptory challenges as may be required in the interests of justice.
(c) Challenges Against Additional Members.—
Whenever additional members are detailed to a military commission under this chapter, and after any challenges for cause against such additional members are presented and decided, the accused and trial counsel are each entitled to one peremptory challenge against members not previously subject to peremptory challenge.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2586; amended Pub. L. 113–66, div. A, title X, § 1031(b), Dec. 26, 2013, 127 Stat. 850.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 949f, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2613, related to challenges, prior to the general amendment of this chapter by Pub. L. 111–84.
heading: Amendments
text: 2013—Subsec. (a). Pub. L. 113–66, § 1031(b)(1), inserted “primary or alternate” before “members”.
Subsec. (b). Pub. L. 113–66, § 1031(b)(2), inserted at end “Nothing in this section prohibits the military judge from awarding to each party such additional peremptory challenges as may be required in the interests of justice.”
10 U.S.C. § 949g (ARMED FORCES)
§ 949g. Oaths
(a) In General.—
(1) Before performing their respective duties in a military commission under this chapter, military judges, members, trial counsel, defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully.
(2) The form of the oath required by paragraph (1), the time and place of the taking thereof, the manner of recording thereof, and whether the oath shall be taken for all cases in which duties are to be performed or for a particular case, shall be as provided in regulations prescribed by the Secretary of Defense. The 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.
(c) Oath Defined.—
In this section, the term “oath” includes an affirmation.
(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 949g, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2613, related to oaths, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949h (ARMED FORCES)
§ 949h. Former jeopardy
(a) In General.—
No person may, without the person’s consent, be tried by a military commission under this chapter a second time for the same offense.
(b) Scope of Trial.—
No proceeding in which the accused has been found guilty by military commission under this chapter upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed.
(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 949h, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2614, related to former jeopardy, prior to the general amendment of this chapter by Pub. L. 111–84.
10 U.S.C. § 949i (ARMED FORCES)
§ 949i. Pleas of the accused
(a) Plea of Not Guilty.—
If an accused 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 military 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 commission under this chapter and accepted by the military judge, including a charge or specification that has been referred capital, a finding of guilty of the charge or specification may be entered by the military judge immediately without a vote by the members. The finding shall constitute the finding of the military commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.
(c) Pre-Trial Agreements.—
(1) A plea of guilty made by the accused that is accepted by a military judge under subsection (b) and not withdrawn prior to announcement of the sentence may form the basis for an agreement reducing the maximum sentence approved by the convening authority, including the reduction of a sentence of death to a lesser punishment, or that the case will be referred to a military commission under this chapter without seeking the penalty of death. Such an agreement may provide for terms and conditions in addition to a guilty plea by the accused in order to be effective.
(2) A plea agreement under this subsection may not provide for a sentence of death imposed by a military judge alone. A sentence of death may only be imposed by the unanimous vote of all members of a military commission concurring in the sentence of death as provided in section 949m(b)(2)(D) of this title.
(Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2587; amended Pub. L. 112–81, div. A, title X, § 1030(b), Dec. 31, 2011, 125 Stat. 1570; Pub. L. 113–291, div. A, title X, § 1071(f)(9), Dec. 19, 2014, 128 Stat. 3510.)
heading: Editorial Notes
heading: Prior Provisions
text: A prior section 949i, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2614, related to pleas of the accused, prior to the general amendment of this chapter by Pub. L. 111–84.
heading: Amendments
text: 2014—Subsec. (b). Pub. L. 113–291 substituted a comma for “,,” after “referred capital”.
2011—Subsec. (b). Pub. L. 112–81, § 1030(b)(1), in the first sentence, inserted “, including a charge or specification that has been referred capital,” after “military judge”, “by the military judge” after “may be entered”, and “by the members” after “vote”.
Subsec. (c). Pub. L. 112–81, § 1030(b)(2), added subsec. (c).