[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: 32CFR9.6]

[Page 24-29]
 
                       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. 9.6  Conduct of the trial.

    (a) Pretrial procedures--(1) Preparation of the Charges. The 
Prosecution shall prepare charges for approval by the Appointing 
Authority, as provided in Sec. 9.4(b)(2)(i).
    (2) Referral to the Commission. The Appointing Authority may approve 
and refer for trial any charge against an individual or individuals 
within the jurisdiction of a Commission in accordance with Sec. 9.3(a) 
and alleging an offense within the jurisdiction of a Commission in 
accordance with Sec. 9.3(b).
    (3) Notification of the accused. The Prosecution shall provide 
copies of the charges approved by the Appointing Authority to the 
Accused and Defense Counsel. The Prosecution also shall submit the 
charges approved by the Appointing Authority to the Presiding Officer of 
the Commission to which they were referred.
    (4) Plea Agreements. The Accused, through Defense Counsel, and the 
Prosecution may submit for approval to the Appointing Authority a plea 
agreement mandating a sentence limitation or any other provision in 
exchange for an agreement to plead guilty, or any other consideration. 
Any agreement to plead

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guilty must include a written stipulation of fact, signed by the 
Accused, that confirms the guilt of the Accused and the voluntary and 
informed nature of the plea of guilty. If the Appointing Authority 
approves the plea agreement, the Commission will, after determining the 
voluntary and informed nature of the plea agreement, admit the plea 
agreement and stipulation into evidence and be bound to adjudge findings 
and a sentence pursuant to that plea agreement.
    (5) Issuance and service of process; obtaining evidence. (i) The 
Commission shall have power to:
    (A) Summon witnesses to attend trial and testify;
    (B) Administer oaths or affirmations to witnesses and other persons 
and to question witnesses;
    (C) Require the production of documents and other evidentiary 
material; and
    (D) Designate special commissioners to take evidence.
    (ii) The Presiding Officer shall exercise these powers on behalf of 
the Commission at the Presiding Officer's own initiative, or at the 
request of the Prosecution or the Defense, as necessary to ensure a full 
and fair trial in accordance with the President's Military Order and 
this part. The Commission shall issue its process in the name of the 
Department of Defense over the signature of the Presiding Officer. Such 
process shall be served as directed by the Presiding Officer in a manner 
calculated to give reasonable notice to persons required to take action 
in accordance with that process.
    (b) Duties of the Commission during trial. The Commission shall:
    (1) Provide a full and fair trial.
    (2) Proceed impartially and expeditiously, strictly confining the 
proceedings to a full and fair trial of the charges, excluding 
irrelevant evidence, and preventing any unnecessary interference or 
delay.
    (3) Hold open proceedings except where otherwise decided by the 
Appointing Authority or the Presiding Officer in accordance with the 
President's Military Order and this part. Grounds for closure include 
the protection of information classified or classifiable under Executive 
Order 12958; information protected by law or rule from unauthorized 
disclosure; the physical safety of participants in Commission 
proceedings, including prospective witnesses; intelligence and law 
enforcement sources, methods, or activities; and other national security 
interests. The Presiding Officer may decide to close all or part of a 
proceeding on the Presiding Officer's own initiative or based upon a 
presentation, including an ex parte, in camera presentation by either 
the Prosecution or the Defense. A decision to close a proceeding or 
portion thereof may include a decision to exclude the Accused, Civilian 
Defense Counsel, or any other person, but Detailed Defense Counsel may 
not be excluded from any trial proceeding or portion thereof. Except 
with the prior authorization of the Presiding Officer and subject to 
section 9 of this part, Defense Counsel may not disclose any information 
presented during a closed session to individuals excluded from such 
proceeding or part thereof. Open proceedings may include, at the 
discretion of the Appointing Authority, attendance by the public and 
accredited press, and public release of transcripts at the appropriate 
time. Proceedings should be open to the maximum extent practicable. 
Photography, video, or audio broadcasting, or recording of or at 
Commission proceedings shall be prohibited, except photography, video, 
and audio recording by the Commission pursuant to the direction of the 
Presiding Officer as necessary for preservation of the record of trial.
    (4) Hold each session at such time and place as may be directed by 
the Appointing Authority. Members of the Commission may meet in closed 
conference at any time.
    (5) As soon as practicable at the conclusion of a trial, transmit an 
authenticated copy of the record of trial to the Appointing Authority.
    (c) Oaths. (1) Members of a Commission, all Prosecutors, all Defense 
Counsel, all court reporters, all security personnel, and all 
interpreters shall take an oath to perform their duties faithfully.
    (2) Each witness appearing before a Commission shall be examined 
under oath, as provided in paragraph (d)(2)(ii) of this section.

[[Page 26]]

    (3) An oath includes an affirmation. Any formulation that appeals to 
the conscience of the person to whom the oath is administered and that 
binds that person to speak the truth, or, in the case of one other than 
a witness, properly to perform certain duties, is sufficient.
    (d) Evidence--(1) Admissibility. Evidence shall be admitted if, in 
the opinion of the Presiding Officer (or instead, if any other member of 
the Commission so requests at the time the Presiding Officer renders 
that opinion, the opinion of the Commission rendered at that time by a 
majority of the Commission), the evidence would have probative value to 
a reasonable person.
    (2) Witnesses--(i) Production of witnesses. The Prosecution or the 
Defense may request that the Commission hear the testimony of any 
person, and such testimony shall be received if found to be admissible 
and not cumulative. The Commission may also summon and hear witnesses on 
its own initiative. The Commission may permit the testimony of witnesses 
by telephone, audiovisual means, or other means; however, the Commission 
shall consider the ability to test the veracity of that testimony in 
evaluating the weight to be given to the testimony of the witness.
    (ii) Testimony. Testimony of witnesses shall be given under oath or 
affirmation. The Commission may still hear a witness who refuses to 
swear an oath or make a solemn undertaking; however, the Commission 
shall consider the refusal to swear an oath or give an affirmation in 
evaluating the weight to be given to the testimony of the witness.
    (iii) Examination of witnesses. A witness who testifies before the 
Commission is subject to both direct examination and cross-examination. 
The Presiding Officer shall maintain order in the proceedings and shall 
not permit badgering of witnesses or questions that are not material to 
the issues before the Commission. Members of the Commission may question 
witnesses at any time.
    (iv) Protection of witnesses. The Presiding Officer shall consider 
the safety of witnesses and others, as well as the safeguarding of 
Protected Information as defined in paragraph (d)(5)(i) of this section, 
in determining the appropriate methods of receiving testimony and 
evidence. The Presiding Officer may hear any presentation by the 
Prosecution or the Defense, including an ex parte, in camera 
presentation, regarding the safety of potential witnesses before 
determining the ways in which witnesses and evidence will be protected. 
The Presiding Officer may authorize any methods appropriate for the 
protection of witnesses and evidence. Such methods may include, but are 
not limited to: testimony by telephone, audiovisual means, or other 
electronic means; closure of the proceedings; introduction of prepared 
declassified summaries of evidence; and the use of pseudonyms.
    (3) Other evidence. Subject to the requirements of paragraph (d)(1) 
of this section concerning admissibility, the Commission may consider 
any other evidence including, but not limited to, testimony from prior 
trials and proceedings, sworn or unsworn written statements, physical 
evidence, or scientific or other reports.
    (4) Notice. The Commission may, after affording the Prosecution and 
the Defense an opportunity to be heard, take conclusive notice of facts 
that are not subject to reasonable dispute either because they are 
generally known or are capable of determination by resort to sources 
that cannot reasonably be contested.
    (5) Protection of Information--(i) Protective Order. The Presiding 
Officer may issue protective orders as necessary to carry out the 
Military Order and this part, including to safeguard ``Protected 
Information,'' which includes:
    (A) Information classified or classifiable pursuant to Executive 
Order 12958;
    (B) Information protected by law or rule from unauthorized 
disclosure;
    (C) Information the disclosure of which may endanger the physical 
safety of participants in Commission proceedings, including prospective 
witnesses;
    (D) Information concerning intelligence and law enforcement sources, 
methods, or activities; or
    (E) Information concerning other national security interests. As 
soon as practicable, counsel for either side will

[[Page 27]]

notify the Presiding Officer of any intent to offer evidence involving 
Protected Information.
    (ii) Limited disclosure. The Presiding Officer, upon motion of the 
Prosecution or sua sponte, shall, as necessary to protect the interests 
of the United States and consistent with Sec. 9.9, direct:
    (A) The deletion of specified items of Protected Information from 
documents to be made available to the Accused, Detailed Defense Counsel, 
or Civilian Defense Counsel;
    (B) The substitution of a portion or summary of the information for 
such Protected Information; or
    (C) The substitution of a statement of the relevant facts that the 
Protected Information would tend to prove. The Prosecution's motion and 
any materials submitted in support thereof or in response thereto shall, 
upon request of the Prosecution, be considered by the Presiding Officer 
ex parte, in camera, but no Protected Information shall be admitted into 
evidence for consideration by the Commission if not presented to 
Detailed Defense Counsel.
    (iii) Closure of proceedings. The Presiding Officer may direct the 
closure of proceedings in accordance with paragraph (b)(3) of this 
section.
    (iv) Protected information as part of the record of trial. All 
exhibits admitted as evidence but containing Protected Information shall 
be sealed and annexed to the record of trial. Additionally, any 
Protected Information not admitted as evidence but reviewed in camera 
and subsequently withheld from the Defense over Defense objection shall, 
with the associated motions and responses and any materials submitted in 
support thereof, be sealed and annexed to the record of trial as 
additional exhibits. Such sealed material shall be made available to 
reviewing authorities in closed proceedings.
    (e) Proceedings during trial. The proceedings at each trial will be 
conducted substantially as follows, unless modified by the Presiding 
Officer to suit the particular circumstances:
    (1) Each charge will be read, or its substance communicated, in the 
presence of the Accused and the Commission.
    (2) The Presiding Officer shall ask each Accused whether the Accused 
pleads ``Guilty'' or ``Not Guilty.'' Should the Accused refuse to enter 
a plea, the Presiding Officer shall enter a plea of ``Not Guilty'' on 
the Accused's behalf. If the plea to an offense is ``Guilty,'' the 
Presiding Officer shall enter a finding of Guilty on that offense after 
conducting sufficient inquiry to form an opinion that the plea is 
voluntary and informed. Any plea of Guilty that is not determined to be 
voluntary and informed shall be changed to a plea of Not Guilty. Plea 
proceedings shall then continue as to the remaining charges. If a plea 
of ``Guilty'' is made on all charges, the Commission shall proceed to 
sentencing proceedings; if not, the Commission shall proceed to trial as 
to the charges for which a ``Not Guilty'' plea has been entered.
    (3) The Prosecution shall make its opening statement.
    (4) The witnesses and other evidence for the Prosecution shall be 
heard or received.
    (5) The Defense may make an opening statement after the 
Prosecution's opening statement or prior to presenting its case.
    (6) The witnesses and other evidence for the Defense shall be heard 
or received.
    (7) Thereafter, the Prosecution and the Defense may introduce 
evidence in rebuttal and surrebuttal.
    (8) The Prosecution shall present argument to the Commission. 
Defense Counsel shall be permitted to present argument in response, and 
then the Prosecution may reply in rebuttal.
    (9) After the members of the Commission deliberate and vote on 
findings in closed conference, the Presiding Officer shall announce the 
Commission's findings in the presence of the Commission, the 
Prosecution, the Accused, and Defense Counsel. The individual votes of 
the members of the Commission shall not be disclosed.
    (10) In the event a finding of Guilty is entered for an offense, the 
Prosecution and the Defense may present information to aid the 
Commission in determining an appropriate sentence. The Accused may 
testify and shall be subject to cross-examination regarding any such 
testimony.

[[Page 28]]

    (11) The Prosecution and, thereafter, the Defense shall present 
argument to the Commission regarding sentencing.
    (12) After the members of the Commission deliberate and vote on a 
sentence in closed conference, the Presiding Officer shall announce the 
Commission's sentence in the presence of the Commission, the 
Prosecution, the Accused, and Defense Counsel. The individual votes of 
the members of the Commission shall not be disclosed.
    (f) Voting. Members of the Commission shall deliberate and vote in 
closed conference. A Commission member shall vote for a finding of 
Guilty as to an offense if and only if that member is convinced beyond a 
reasonable doubt, based on the evidence admitted at trial, that the 
Accused is guilty of the offense. An affirmative vote of two-thirds of 
the members is required for a finding of Guilty. When appropriate, the 
Commission may adjust a charged offense by exceptions and substitutions 
of language that do not substantially change the nature of the offense 
or increase its seriousness, or it may vote to convict of a lesser-
included offense. An affirmative vote of two-thirds of the members is 
required to determine a sentence, except that a sentence of death 
requires a unanimous, affirmative vote of all of the members. Votes on 
findings and sentences shall be taken by secret, written ballot.
    (g) Sentence. Upon conviction of an Accused, the Commission shall 
impose a sentence that is appropriate to the offense or offenses for 
which there was a finding of Guilty, which sentence may include death, 
imprisonment for life or for any lesser term, payment of a fine or 
restitution, or such other lawful punishment or condition of punishment 
as the Commission shall determine to be proper. Only a Commission of 
seven members may sentence an Accused to death. A Commission may 
(subject to rights of third parties) order confiscation of any property 
of a convicted Accused, deprive that Accused of any stolen property, or 
order the delivery of such property to the United States for 
disposition.
    (h) Post-trial procedures--(1) Record of Trial. Each Commission 
shall make a verbatim transcript of its proceedings, apart from all 
Commission deliberations, and preserve all evidence admitted in the 
trial (including any sentencing proceedings) of each case brought before 
it, which shall constitute the record of trial. The court reporter shall 
prepare the official record of trial and submit it to the Presiding 
Officer for authentication upon completion. The Presiding Officer shall 
transmit the authenticated record of trial to the Appointing Authority. 
If the Secretary of Defense is serving as the Appointing Authority, the 
record shall be transmitted to the Review Panel constituted under 
paragraph (h)(4) of this section.
    (2) Finality of findings and sentence. A Commission finding as to a 
charge and any sentence of a Commission becomes final when the President 
or, if designated by the President, the Secretary of Defense makes a 
final decision thereon pursuant to section 4(c)(8) of the President's 
Military Order and in accordance with paragraph (h)(6) of this section. 
An authenticated finding of Not Guilty as to a charge shall not be 
changed to a finding of Guilty. Any sentence made final by action of the 
President or the Secretary of Defense shall be carried out promptly. 
Adjudged confinement shall begin immediately following the trial.
    (3) Review by the Appointing Authority. If the Secretary of Defense 
is not the Appointing Authority, the Appointing Authority shall promptly 
perform an administrative review of the record of trial. If satisfied 
that the proceedings of the Commission were administratively complete, 
the Appointing Authority shall transmit the record of trial to the 
Review Panel constituted under paragraph (h)(4) of this section. If not 
so satisfied, the Appointing Authority shall return the case for any 
necessary supplementary proceedings.
    (4) Review Panel. The Secretary of Defense shall designate a Review 
Panel consisting of three Military Officers, which may include civilians 
commissioned pursuant to section 603 of title 10, United States Code. At 
least one member of each Review Panel shall have experience as a judge. 
The Review Panel shall review the record of trial and, in its 
discretion, any written submissions from the Prosecution and the Defense 
and shall deliberate in closed

[[Page 29]]

conference. The Review Panel shall disregard any variance from 
procedures specified in this part or elsewhere that would not materially 
have affected the outcome of the trial before the Commission. Within 
thirty days after receipt of the record of trial, the Review Panel shall 
either:
    (i) Forward the case to the Secretary of Defense with a 
recommendation as to disposition, or
    (ii) Return the case to the Appointing Authority for further 
proceedings, provided that a majority of the Review Panel has formed a 
definite and firm conviction that a material error of law occurred.
    (5) Review by the Secretary of Defense. The Secretary of Defense 
shall review the record of trial and the recommendation of the Review 
Panel and either return the case for further proceedings or, unless 
making the final decision pursuant to a Presidential designation under 
section 4(c)(8) of the President's Military Order, forward it to the 
President with a recommendation as to disposition.
    (6) Final decision. After review by the Secretary of Defense, the 
record of trial and all recommendations will be forwarded to the 
President for review and final decision (unless the President has 
designated the Secretary of Defense to perform this function). If the 
President has so designated the Secretary of Defense, the Secretary may 
approve or disapprove findings or change a finding of Guilty to a 
finding of Guilty to a lesser-included offense, or mitigate, commute, 
defer, or suspend the sentence imposed or any portion thereof. If the 
Secretary of Defense is authorized to render the final decision, the 
review of the Secretary of Defense under paragraph (h)(5) of this 
section shall constitute the final decision.