[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Rules and Regulations]
[Pages 39379-39381]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16378]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 10


Military Commission Instructions

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule establishes policies for the issuance and 
interpretation of Military Commission Instructions promulgated pursuant 
to regulations on Procedures for Trials by Military Commission of 
Certain Non-United States Citizens in the War Against Terrorism, and 
Military Order of November 13, 2001, ``Detention, Treatment, and Trial 
of Certain Non-Citizens in the War Against Terrorism.

EFFECTIVE DATE: April 30, 2003.

FOR FURTHER INFORMATION CONTACT: Office of Military Commission 
Spokesperson, 703-693-1115.

SUPPLEMENTARY INFORMATION: Although exempt from administrative 
procedures for rulemaking, publication of the final rule in the Federal 
Register is deemed appropriate under 5 U.S.C. 552(a)(1)(C). 
Certifications follow:

Administrative Procedures Act (Sec.1, Pub. L. 89-544)

    It has been certified that 32 CFR part 10 is as a military function 
of the United States and exempt from administrative procedures for rule 
making.

[[Page 39380]]

Executive Order 12866, ``Regulatory Planning and Review''

    It has been certified that 32 CFR part 10 pertains to military 
functions other than procurement and import-export licenses and is 
exempt from Office of Management and Budget review under section 3, 
para (d)(2).

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that 32 CFR part 10 does not contain a 
Federal mandate that may result in the expenditure by State, local and 
tribal governments, in aggregate, or by the private sector, of $100 
million or more in any one year.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been determined that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if 
promulgated, have a significant economic impact on a substantial number 
of small entities.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been certified that 32 CFR part 10 does not impose any 
reporting or recordkeeping requirements under the Paperwork Reduction 
Act of 1995 (44 U.S.C. chapter 44).

Federalism (Executive Order 13132)

    It has been certified that 32 CFR part 10 does not have federalism 
implications, as set forth in Executive Order 13132. This rule does not 
have substantial direct effects on:
    (1) The States;
    (2) The relationship between the national government and the 
States; or
    (3) The distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 10

    Military law.


0
Accordingly, 32 CFR part 10 is added to Subtitle A, Chapter I, 
Subchapter B to read as follows:

PART 10--MILITARY COMMISION INSTRUCTIONS

Sec.
10.1 Purpose.
10.2 Authority.
10.3 Applicability.
10.4 Policies and procedures.
10.5 Construction.
10.6 Non-creation of right.
10.7 Reservation of authority.
10.8 Amendment.

    Authority: 10 U.S.C. 113Id) and 140(b).


Sec.  10.1  Purpose.

    This part establishes policies for the issuance and interpretation 
of Military Commission Instructions promulgated pursuant to 32 CFR part 
9, and Military Order of November 13, 2001, ``Detention, Treatment, and 
Trial of Certain Non-Citizens in the War Against Terrorism,'' (3 CFR, 
2001 comp., p. 918, 66 FR 57833).


Sec.  10.2  Authority.

    This part is issued pursuant to 32 CFR 9.7(a) and in accordance 
with 10 U.S.C. 113(d) and 140(b).


Sec.  10.3  Applicability.

    This part, and, unless stated otherwise, all other Military 
Commission Instructions apply throughout the Department of Defense, 
including to the Office of the Secretary of Defense, the Military 
Departments, the Chairman and Vice Chairman of the Joint Chiefs of 
Staff and the Joint Staff, the Combatant Commands, the Office of the 
Inspector General of the Department of Defense, the Defense Agencies, 
the Department of Defense Field Activities, and all other 
organizational entities within the Department of Defense, to any 
special trial counsel of the Department of Justice who may be made 
available by the Attorney General of the United States to serve as a 
prosecutor in trials before military commissions pursuant to 32 CFR 
9.4(b)(2), to any civilian attorney who seeks qualification as a member 
of the pool of qualified Civilian Defense Counsel authorized in 32 CFR 
9.4(c)(3)(ii), and to any attorney who has been qualified as a member 
of that pool.


Sec.  10.4  Policies and procedures.

    (a) Promulgation. Military Commission Instructions will be issued 
by the General Counsel of the Department of Defense (hereinafter 
General Counsel). Each Instruction will issue over the signature of the 
General Counsel and, unless otherwise specified therein, shall take 
effect upon the signature of the General Counsel. Instructions will be 
numbered in sequence.
    (b) Professional responsibility. Compliance with these Instructions 
shall be deemed a professional responsibility obligation for the 
practice of law within the Department of Defense.
    (c) Compliance breaches. Failure to adhere to these Instructions or 
any other failure to comply with any rule, regulation, or Instruction 
applicable to trials by military commission convened pursuant to 32 CFR 
part 9, and Military Order of November 13, 2001, ``Detention, 
Treatment, and Trial of Certain Non-Citizens in the War Against 
Terrorism,'' may be subject to appropriate action by the Appointing 
Authority, the General Counsel of the Department of Defense, or the 
Presiding Officer of a military commission. Such action may include 
permanently barring an individual from participating in any military 
commission proceeding convened pursuant to 32 CFR part 9, and Military 
Order of November 13, 2001, ``Detention, Treatment, and Trial of 
Certain Non-Citizens in the War Against Terrorism,'' punitive measures 
imposed under 10 U.S.C. 898, and any other lawful sanction.


Sec.  10.5  Construction.

    Military Commission Instructions shall be construed in a manner 
consistent with 32 CFR part 9, and Military Order of November 13, 2001, 
``Detention, Treatment, and Trial of Certain Non-Citizens in the War 
Against Terrorism.'' Nothing in these Military Commission Instructions 
applies with respect to the trial of crimes by military commissions 
convened under other authority. In the event of an inconsistency, the 
provisions of 32 CFR part 9, and Military Order of November 13, 2001, 
``Detention, Treatment, and Trial of Certain Non-Citizens in the War 
Against Terrorism,'' shall govern as provided in Section 7(B) of 
Military Order of November 13, 2001, ``Detention, Treatment, and Trial 
of Certain Non-Citizens in the War Against Terrorism.'' Pronouns 
referring to the male gender shall be construed as applying to both 
male and female.


Sec.  10.6  Non-creation of right.

    Neither this part nor any Military Commission Instruction issued 
hereafter, is intended to and does not create any right, benefit, 
privilege, substantive or procedural, enforceable by any party, against 
the United States, its departments, agencies, or other entities, its 
officers or employees, or any other person. Alleged noncompliance with 
an Instruction does not, of itself, constitute error, give rise to 
judicial review, or establish a right to relief for the Accused or any 
other person.


Sec.  10.7  Reservation of authority.

    Neither this part nor any Military Commission Instruction issued 
hereafter shall be construed to limit, impair, or otherwise affect any 
authority granted by the Constitution or laws of the United States or 
Department of Defense regulation or directive.

[[Page 39381]]

Sec.  10.8  Amendment.

    The General Counsel may issue, supplement, amend, or revoke any 
Military Commission Instruction at any time.

    Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16378 Filed 6-26-03; 12:40 pm]
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