[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Rules and Regulations]
[Pages 39389-39391]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16381]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 13


Responsibilities of the Chief Defense Counsel, Detailed Defense 
Counsel, and Civilian Defense Counsel

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule establishes the responsibilities of the Office of 
the Chief Defense Counsel 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 rule making, 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 13 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 13 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 13 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 13 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 13 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 13

    Military law.


0
Accordingly, 32 CFR part 13 is added to Subtitle A, Chapter I, 
Subchapter B to read as follows:

PART 13--RESPONSIBILITIES OF THE CHIEF DEFENSE COUNSEL, DETAILED 
DEFENSE COUNSEL, AND CIVILIAN DEFENSE COUNSEL

Sec.
13.1 Purpose.
13.2 Authority.
13.3 Office of the Chief Defense Counsel.
13.4 Duties and responsibilities of the defense.
13.5 Policies.

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


Sec.  13.1  Purpose.

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


Sec.  13.2  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.  13.3  Office of the Chief Defense Counsel.

    (a) General. The Office of the Chief Defense Counsel shall be a 
component of the Office of Military Commissions and shall be comprised 
of the Chief Defense Counsel, Defense Counsel, and other such persons 
properly under the supervision of the Chief Defense Counsel.
    (b) Chief Defense Counsel. (1) The Chief Defense Counsel 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 Defense Counsel shall report directly to the Deputy 
General Counsel (Personnel and Health Policy) of the Department of 
Defense.
    (3) The Chief Defense Counsel shall supervise all defense 
activities and the efforts of Detailed Defense Counsel and other office 
personnel and resources 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 Defense Counsel and facilitating the proper representation of 
all Accused referred to trial before a military commission appointed 
pursuant to 32 CFR part 9, and Military Order of

[[Page 39390]]

November 13, 2001, ``Detention, Treatment, and Trial of Certain Non-
Citizens in the War Against Terrorism.''
    (4) The Chief Defense Counsel shall ensure that all personnel 
assigned to the Office of the Chief Defense Counsel 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. Furthermore, the Chief Defense Counsel shall regulate the 
conduct of Detailed Defense Counsel as deemed necessary, 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,'' and subordinate instructions and regulations, and 
specifically shall ensure that Detailed Defense Counsel have been 
directed to conduct their activities consistent with applicable 
prescriptions and proscriptions specified in Section II of the 
Affidavit And Agreement By Civilian Defense Counsel at Appendix B to 32 
CFR part 14.
    (5) The Chief Defense Counsel shall inform the Deputy General 
Counsel (Personnel and Health Policy) of the Department of Defense of 
all requirements for personnel, office space, equipment, and supplies 
to ensure the successful functioning and mission accomplishment of the 
Office of the Chief Defense Counsel.
    (6) The Chief Defense Counsel shall supervise all Defense Counsel 
and other personnel assigned to the Office of the Chief Defense 
Counsel.
    (7) The Chief Defense Counsel, or his designee, shall fulfill 
applicable performance evaluation requirements associated with Defense 
Counsel and other personnel properly under the supervision of the Chief 
Defense Counsel.
    (8) The Chief Defense Counsel shall detail a judge advocate of any 
United States armed force to perform the duties of the Detailed Defense 
Counsel as set forth in 32 CFR 9.4(c)(2) and shall detail or employ any 
other personnel as directed by the Appointing Authority or the 
Presiding Officer in a particular case. The Chief Defense Counsel may 
not detail himself to perform the duties of Detailed Defense Counsel, 
nor does he form an attorney-client relationship with accused persons 
or incur any concomitant confidentiality obligations.
    (i) The Chief Defense Counsel may, when appropriate, detail an 
additional judge advocate as Assistant Detailed Defense Counsel to 
assist in performing the duties of the Detailed Defense Counsel.
    (ii) The Chief Defense Counsel may structure the Office of the 
Chief Defense Counsel so as to include subordinate supervising 
attorneys who may incur confidentiality obligations in the context of 
fulfilling their supervisory responsibilities with regard to Detailed 
Defense Counsel.
    (9) The Chief Defense Counsel shall take appropriate measures to 
preclude Defense Counsel conflicts of interest arising from the 
representation of Accused before military commissions. The Chief 
Defense Counsel shall be provided sufficient information (potentially 
including protected information) to fulfill this responsibility.
    (10) The Chief Defense Counsel shall take appropriate measures to 
ensure that each Detailed Defense Counsel is capable of zealous 
representation, unencumbered by any conflict of interest. In this 
regard, the Chief Defense Counsel shall monitor the activities of all 
Defense Counsel (Detailed and Civilian) and take appropriate measures 
to ensure that Defense Counsel do not enter into agreements with other 
Accused or Defense Counsel that might cause them or the Accused they 
represent to incur an obligation of confidentiality with such other 
Accused or Defense Counsel or to effect some other impediment to 
representation.
    (11) The Chief Defense Counsel shall ensure that an Accused tried 
before a military commission 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,'' is represented at 
all relevant times by Detailed Defense Counsel.
    (12) The Chief Defense Counsel shall administer all requests for 
replacement Detailed Defense Counsel requested in accordance with 32 
CFR 9.4(c)(3). He shall determine the availability of such counsel in 
accordance with this part.
    (13) The Chief Defense Counsel shall administer the Civilian 
Defense Counsel pool, screening all requests for pre-qualification and 
ad hoc qualification, making qualification determinations and 
recommendations in accordance with 32 CFR part 9, this part, and 32 CFR 
part 14, and ensuring appropriate notification to an Accused of 
civilian attorneys available to represent Accused before a military 
commission.
    (14) The Chief Defense Counsel shall ensure that all Detailed 
Defense Counsel and Civilian Defense Counsel who are to perform duties 
in relation to a military commission have taken an oath to perform 
their duties faithfully.
    (15) The Chief Defense Counsel shall ensure that all personnel 
properly under the supervision of the Office of the Chief Defense 
Counsel possess the appropriate security clearances.
    (c) Detailed Defense Counsel. (1) Detailed Defense Counsel shall be 
judge advocates of any United States armed force.
    (2) Detailed Defense Counsel shall represent the Accused before 
military commissions when detailed 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.'' In this 
regard Detailed Defense Counsel shall: defend the Accused to whom 
detailed zealously within the bounds of the law and without regard to 
personal opinion as to guilt; represent the interests of the Accused in 
any review process as provided by 32 CFR part 9; and comply with the 
procedures accorded the Accused pursuant to 32 CFR 9.5 and 9.6. 
Detailed Defense Counsel shall so serve notwithstanding any intention 
expressed by the Accused to represent himself.
    (3) Detailed Defense Counsel shall have primary responsibility to 
prevent conflicts of interest related to the handling of the cases to 
which detailed.
    (4) Detailed Defense Counsel 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 Defense Counsel.
    (d) Selected Detailed Defense Counsel. (1) The Accused may select a 
judge advocate of any United States armed force to replace the 
Accused's Detailed Defense Counsel, provided that judge advocate has 
been determined to be available by the Chief Defense Counsel in 
consultation with the Judge Advocate General of that judge advocate's 
military department.
    (2) A judge advocate shall be determined not to be available if 
assigned duties: as a general or flag officer; as a military judge; as 
a prosecutor in the Office of Military Commissions; as a judge advocate 
assigned to the Department of Defense Criminal Investigation Task Force 
or Joint Task Force Guantanamo; as a principal legal advisor to a 
command, organization, or agency; as an instructor or student at a 
service school, academy, college or university; or in any other 
capacity that the Judge Advocate General of the Military Department

[[Page 39391]]

concerned may determine not to be available because of the nature or 
responsibilities of their assignments, exigent circumstances, military 
necessity, or other appropriate reasons.
    (3) Consistent with 32 CFR 9.6(b), the selection and replacement of 
new Detailed Defense Counsel shall not unreasonably delay military 
commission proceedings.
    (4) Unless otherwise directed by the Appointing Authority or the 
General Counsel of the Department of Defense, the Chief Defense Counsel 
will, after selection of a new Detailed Defense Counsel, relieve the 
original Detailed Defense Counsel of all duties with respect to that 
case.
    (e) Qualified Civilian Defense Counsel. (1) The Accused may, at no 
expense to the United States, retain the services of a civilian 
attorney of the Accused's own choosing to assist in the conduct of his 
defense before a military commission, provided that the civilian 
attorney retained has been determined to be qualified pursuant to 32 
CFR 9.4(c)(3)(ii).
    (2) Consistent with 32 CFR 9.6(b), the retention of Civilian 
Defense Counsel shall not unreasonably delay military commission 
proceedings.
    (3) Representation by Civilian Defense Counsel will not relieve 
Detailed Defense Counsel of the duties specified in 32 CFR 9.4(c)(2).
    (4) Neither qualification of a Civilian Defense Counsel for 
membership in the pool of available Civilian Defense Counsel nor the 
entry of appearance in a specific case guarantees that counsel's 
presence at closed military commission proceedings or access to 
information protected under 32 CFR 9.6(d)(5).
    (5) The Chief Defense Counsel shall monitor the conduct of all 
qualified Civilian Defense Counsel for compliance with all rules, 
regulations, and instructions governing military commissions. The Chief 
Defense Counsel will report all instances of noncompliance with the 
rules, regulations, and instructions governing military commissions to 
the Appointing Authority and to the General Counsel of the Department 
of Defense with a recommendation as to any appropriate action 
consistent with 32 CFR part 9 and this part.


Sec.  13.4  Duties and responsibilities of the defense.

    (a) Regular duties. The Defense shall perform all duties specified 
or implied in 32 CFR part 9 as responsibilities of the Defense.
    (b) Special duties. The Office of the Chief Defense Counsel shall 
perform such 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,'' and the mission 
of the Office of the Chief Defense Counsel, as may be directed by the 
Appointing Authority or the General Counsel of the Department of 
Defense.


Sec.  13.5  Policies.

    (a) Prohibition on certain agreements. No Defense Counsel may enter 
into agreements with any detainee other than his client, or such 
detainee's Defense Counsel, that might cause him or the client he 
represents to incur an obligation of confidentiality with such other 
detainee or Defense Counsel or to effect some other impediment to 
representation.
    (b) Prohibition on certain disclosures. All Defense Counsel 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 an Accused or potential Accused or to 
any other 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 Defense Counsel, as well as all members of the 
Civilian Defense Counsel pool and associated personnel 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.
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    \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. 03-16381 Filed 6-26-03; 12:40 pm]
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