[Code of Federal Regulations] [Title 32, Volume 1] [Revised as of July 1, 2003] From the U.S. Government Printing Office via GPO Access [CITE: 32CFR9.4] [Page 21-23] TITLE 32--NATIONAL DEFENSE CHAPTER I--OFFICE OF THE SECRETARY OF DEFENSE PART 9--PROCEDURES FOR TRIALS BY MILITARY COMMISSIONS OF CERTAIN NON-UNITED STATES CITIZENS IN THE WAR AGAINST TERROISM--Table of Contents Sec. 9.4 Commission personnel. (a) Members--(1) Appointment. The Appointing Authority shall appoint the members and the alternate member or members of each Commission. The alternate member or members shall attend all sessions of the Commission, but the absence of an alternate member shall not preclude the Commission from conducting proceedings. In case of incapacity, resignation, or removal of any member, an alternate member shall take the place of that member. Any vacancy among the members or alternate members occurring after a trial has begun may be filled by the Appointing Authority, but the substance of all prior proceedings and evidence taken in that case shall be made known to that new member or alternate member before the trial proceeds. (2) Number of members. Each Commission shall consist of at least three but [[Page 22]] no more than seven members, the number being determined by the Appointing Authority. For each such Commission, there shall also be one or two alternate members, the number being determined by the Appointing Authority. (3) Qualifications. Each member and alternate member shall be a commissioned officer of the United States armed forces (``Military Officer''), including without limitation reserve personnel on active duty, National Guard personnel on active duty in Federal service, and retired personnel recalled to active duty. The Appointing Authority shall appoint members and alternate members determined to be competent to perform the duties involved. The Appointing Authority may remove members and alternate members for good cause. (4) Presiding Officer. From among the members of each Commission, the Appointing Authority shall designate a Presiding Officer to preside over the proceedings of that Commission. The Presiding Officer shall be a Military Officer who is a judge advocate of any United States armed force. (5) Duties of the Presiding Officer. (i) The Presiding Officer shall admit or exclude evidence at trial in accordance with section 6(d) of this part. The Presiding Officer shall have authority to close proceedings or portions of proceedings in accordance with Sec. 9.6(b)(3) of this part and for any other reason necessary for the conduct of a full and fair trial. (ii) The Presiding Officer shall ensure that the discipline, dignity, and decorum of the proceedings are maintained, shall exercise control over the proceedings to ensure proper implementation of the President's Military Order and this part, and shall have authority to act upon any contempt or breach of Commission rules and procedures. Any attorney authorized to appear before a Commission who is thereafter found not to satisfy the requirements for eligibility or who fails to comply with laws, rules, regulations, or other orders applicable to the Commission proceedings or any other individual who violates such laws, rules, regulations, or orders may be disciplined as the Presiding Officer deems appropriate, including but not limited to revocation of eligibility to appear before that Commission. The Appointing Authority may further revoke that attorney's or any other person's eligibility to appear before any other Commission convened under this part. (iii) The Presiding Officer shall ensure the expeditious conduct of the trial. In no circumstance shall accommodation of counsel be allowed to delay proceedings unreasonably. (iv) The Presiding Officer shall certify all interlocutory questions, the disposition of which would effect a termination of proceedings with respect to a charge, for decision by the Appointing Authority. The Presiding Officer may certify other interlocutory questions to the Appointing Authority as the Presiding Officer deems appropriate. (b) Prosecution--(1) Office of the Chief Prosecutor. The Chief Prosecutor shall be a judge advocate of any United States armed force, shall supervise the overall prosecution efforts under the President's Military Order, and shall ensure proper management of personnel and resources. (2) Prosecutors and Assistant Prosecutors. (i) Consistent with any supplementary regulations or instructions issued under Sec. 9.7(a), the Chief Prosecutor shall detail a Prosecutor and, as appropriate, one or more Assistant Prosecutors to prepare charges and conduct the prosecution for each case before a Commission (``Prosecution''). Prosecutors and Assistant Prosecutors shall be: (A) Military Officers who are judge advocates of any United States armed force, or (B) Special trial counsel of the Department of Justice who may be made available by the Attorney General of the United States. (ii) The duties of the Prosecution are: (A) To prepare charges for approval and referral by the Appointing Authority; (B) To conduct the prosecution before the Commission of all cases referred for trial; and (C) To represent the interests of the Prosecution in any review process. (c) Defense--(1) Office of the Chief Defense Counsel. The Chief Defense Counsel shall be a judge advocate of any [[Page 23]] United States armed force, shall supervise the overall defense efforts under the President's Military Order, shall ensure proper management of personnel and resources, shall preclude conflicts of interest, and shall facilitate proper representation of all Accused. (2) Detailed Defense Counsel. Consistent with any supplementary regulations or instructions issued under Sec. 9.7(a), the Chief Defense Counsel shall detail one or more Military Officers who are judge advocates of any United States armed force to conduct the defense for each case before a Commission (``Detailed Defense Counsel''). The duties of the Detailed Defense Counsel are: (i) To defend the Accused zealously within the bounds of the law without regard to personal opinion as to the guilt of the Accused; and (ii) To represent the interests of the Accused in any review process as provided by this part. (iii) Choice of Counsel. (A) The Accused may select a Military Officer who is a judge advocate of any United States armed force to replace the Accused's Detailed Defense Counsel, provided that Military Officer has been determined to be available in accordance with any applicable supplementary regulations or instructions issued under Sec. 9.7(a). After such selection of a new Detailed Defense Counsel, the original Detailed Defense Counsel will be relieved of all duties with respect to that case. If requested by the Accused, however, the Appointing Authority may allow the original Detailed Defense Counsel to continue to assist in representation of the Accused as another Detailed Defense Counsel. (B) The Accused may also retain the services of a civilian attorney of the Accused's own choosing and at no expense to the United States Government (``Civilian Defense Counsel''), provided that attorney: (1) Is a United States citizen; (2) Is admitted to the practice of law in a State, district, territory, or possession of the United States, or before a Federal court; (3) Has not been the subject of any sanction or disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct; (4) Has been determined to be eligible for access to information classified at the level SECRET or higher under the authority of and in accordance with the procedures prescribed in DoD 5200.2-R \1\; and --------------------------------------------------------------------------- \1\ Available from www.ditc.mil/whs/directives. --------------------------------------------------------------------------- (5) Has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the course of proceedings. Civilian attorneys may be pre-qualified as members of the pool of available attorneys if, at the time of application, they meet the relevant criteria, or they may be qualified on an ad hoc basis after being requested by an Accused. Representation by Civilian Defense Counsel will not relieve Detailed Defense Counsel of the duties specified in paragraph (c)(2) of this section. The qualification of a Civilian Defense Counsel does not guarantee that person's presence at closed Commission proceedings or that person's access to any information protected under Sec. 9.6(d)(5). (4) Continuity of representation. The Accused must be represented at all relevant times by Detailed Defense Counsel. Detailed Defense Counsel and Civilian Defense Counsel shall be herein referred to collectively as ``Defense Counsel.'' The Accused and Defense Counsel shall be herein referred to collectively as ``the Defense.'' (d) Other Personnel. Other personnel, such as court reporters, interpreters, security personnel, bailiffs, and clerks may be detailed or employed by the Appointing Authority, as necessary.