[Code of Federal Regulations]

[Title 32, Volume 1]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 32CFR9.6]



[Page 25-30]

 

                       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 TERRORISM--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 27]]



    (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 28]]



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 29]]



    (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 30]]



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.