[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Rules and Regulations]
[Pages 39387-39389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16380]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 12


Responsibilities of the Chief Prosecutor, Prosecutors, and 
Assistant Prosecutors

AGENCY: Department of Defense.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: This rule establishes the responsibilities of the Office of 
the Chief Prosecutor and components thereof.

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 12 is as a military function 
of the United States and exempt from administrative procedures for rule 
making.

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

    It has been certified that 32 CFR part 12 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 12 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.

[[Page 39388]]

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

    It has been certified that 32 CFR part 12 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 12 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 12

    Military law.


0
Accordingly, 32 CFR part 12 is added to subtitle A, chapter I, 
Subchapter B to read as follows:

PART 12--RESPONSIBILITIES OF THE CHIEF PROSECUTOR, PROSECUTORS, AND 
ASSISTANT PROSECUTORS

Sec.
12.1 Purpose.
12.2 Authority.
12.3 Office of the Chief Prosecutor.
12.4 Duties and responsibilities of the prosecution.
12.5 Policies.

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


Sec.  12.1  Purpose.

    This part establishes the responsibilities of the Office of the 
Chief Prosecutor and components thereof.


Sec.  12.2  Authority.

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


Sec.  12.3  Office of the Chief Prosecutor.

    (a) General. The Office of the Chief Prosecutor shall be a 
component of the Office of Military Commissions and shall be comprised 
of the Chief Prosecutor, Prosecutors, and other persons properly under 
the supervision of the Chief Prosecutor.
    (b) Chief Prosecutor. (1) The Chief Prosecutor shall be a judge 
advocate of any United States armed force and shall be designated by 
the General Counsel of the Department of Defense.
    (2) The Chief Prosecutor shall report directly to the Deputy 
General Counsel (Legal Counsel) of the Department of Defense.
    (3) The Chief Prosecutor shall have authority to subpoena any 
individual to appear as a witness, to testify, or to produce any 
evidence in a case referred to military commissions or in a criminal 
investigation associated with a case that may be referred to a military 
commission.
    (4) The Chief Prosecutor shall direct the overall prosecution 
effort 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,'' ensuring proper supervision and management of 
all personnel and resources assigned to the Office of the Chief 
Prosecutor.
    (5) The Chief Prosecutor shall ensure that all personnel assigned 
to the Office of the Chief Prosecutor review, and attest that they 
understand and will comply 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,'' and all Supplementary 
Regulations and Instructions issued in accordance therewith.
    (6) The Chief Prosecutor shall inform the Deputy General Counsel 
(Legal Counsel) of all requirements for personnel, office space, 
equipment, and supplies to ensure the successful functioning and 
mission accomplishment of the Office of the Chief Prosecutor.
    (7) The Chief Prosecutor shall supervise all Prosecutors and other 
personnel assigned to the Office of the Chief Prosecutor including any 
special trial counsel of the Department of Justice who may be made 
available by the Attorney General of the United States.
    (8) The Chief Prosecutor, or his designee, shall fulfill applicable 
performance evaluation requirements associated with Prosecutors and 
other personnel properly under the supervision of the Office of the 
Chief Prosecutor.
    (9) The Chief Prosecutor shall detail a Prosecutor and, as 
appropriate, one or more Assistant Prosecutors to perform the duties of 
the prosecution as set forth in 32 CFR 9.4(b)(2). The Chief Prosecutor 
may detail himself to perform such duties.
    (10) The Chief Prosecutor shall ensure that all Prosecutors and 
Assistant Prosecutors faithfully represent the United States in 
discharging their prosecutorial duties before military commissions 
conducted 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.''
    (11) The Chief Prosecutor shall ensure that all Prosecutors and 
Assistant Prosecutors have taken an oath to perform their duties 
faithfully.
    (12) The Chief Prosecutor shall ensure that all personnel properly 
under the supervision of the Office of the Chief Prosecutor possess the 
appropriate security clearances.
    (c) Prosecutors. (1) Prosecutors shall be detailed by the Chief 
Prosecutor and may be either judge advocates of any United States armed 
force or special trial counsel of the Department of Justice who may be 
made available by the Attorney General of the United States.
    (2) Prosecutors shall represent the United States as Prosecutors or 
Assistant Prosecutors as directed by the Chief Prosecutor and in 
accordance 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.''
    (3) Prosecutors shall fulfill all responsibilities detailed in 32 
CFR part 9, and Military Order of November 13, 2001, ``Detention, 
Treatment, and Trial of Certain Non-Citizens in the War Against 
Terrorism,'' those set forth in this part, and those assigned by the 
Chief Prosecutor.
    (4) Prosecutors shall ensure that all court reporters, security 
personnel, and interpreters who are to perform duties in relation to a 
military commission proceeding have taken an oath to perform their 
duties faithfully. As directed by the Presiding Officer, Prosecutors 
also shall administer appropriate oaths to witnesses during military 
commission proceedings.


Sec.  12.4  Duties and responsibilities of the prosecution.

    (a) Regular duties. The Prosecution shall perform all duties 
specified or implied in 32 CFR part 9 as responsibilities of the 
Prosecution.
    (b) Administrative duties. The Prosecution shall, as directed by 
the Presiding Officer or the Appointing Authority, prepare any 
documentation necessary to facilitate the conduct of military 
commissions proceedings. The Prosecution shall, as directed by the 
Deputy General Counsel (Legal Counsel), prepare a trial guide to 
provide a standardized administrative plan for the conduct of military 
commission proceedings. Unless directed otherwise by the Appointing 
Authority, the Presiding Officer may, in

[[Page 39389]]

his discretion, depart from this guide as appropriate.
    (c) Special duties. The Prosecution shall perform all other 
functions, 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,'' as may be directed by the 
Appointing Authority or the General Counsel of the Department of 
Defense.


Sec.  12.5  Policies.

    (a) Prohibition on Prosecutors serving as Defense Counsel. Judge 
advocates assigned to the Office of the Chief Prosecutor shall be 
deemed unavailable for service as Defense Counsel under 32 CFR 
9.4(c)(3)(i).
    (b) Prohibition on certain disclosures. All Prosecutors must 
strictly comply with 32 CFR 9.6(d)(5) and 9.9 to ensure they do not 
improperly disclose classified information, national security 
information, or state secrets to any person not specifically authorized 
to receive such information.
    (c) Statements to the media. Consistent with DoD Directive 5122.5 
\1\, the Assistant Secretary of Defense for Public Affairs shall serve 
as the sole release authority for DoD information and audiovisual 
materials regarding military commissions. Personnel assigned to the 
Office of the Chief Prosecutor may communicate with news media 
representatives regarding cases and other matters related to military 
commissions only when approved by the Appointing Authority or the 
General Counsel of the Department of Defense.
---------------------------------------------------------------------------

    \1\ Available at http://www.dtic.mil/whs/directives.

    Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16380 Filed 6-26-03; 12:40 pm]
BILLING CODE 5001-08-P