[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Rules and Regulations]
[Pages 39391-39394]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16382]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 14


Qualification of Civilian Defense Counsel

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule establishes policies and procedures for the creation 
and management of the pool of qualified Civilian Defense Counsel 
authorized in regulations on Procedures for Trials by Military 
Commission of Certain Non-United States Citizens in the War Against 
Terrorism in accordance with 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 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 14 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 14 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 14 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 14 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 14 does not have federalism 
implications, as set forth in Executive

[[Page 39392]]

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 14

    Military law.


0
Accordingly, 32 CFR part 14 is added to Subtitle A, Chapter I, 
Subchapter B to read as follows:
PART 14--QUALIFICATION OF CIVILIAN DEFENSE COUNSEL
Sec.
14.1 Purpose.
14.2 Authority.
14.3 Policies and procedures.
Appendix A to Part 14--United States of America Authorization for 
Release of Information
Appendix B to Part 14--Affidavit and Agreement by Civilian Defense 
Counsel

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


Sec.  14.1  Purpose.

    This part establishes policies and procedures for the creation and 
management of the pool of qualified Civilian Defense Counsel authorized 
in 32 CFR 9.4 (c)(3)(ii) 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., 918, 66 FR 57833).


Sec.  14.2  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,'' and 10 
U.S.C. 113(d) and 140(b). The provisions of 32 CFR part 10 are 
applicable to this part.


Sec.  14.3  Policies and procedures.

    (a) Application procedures. (1) Civilian attorneys may be 
prequalified as members of the pool of attorneys eligible to represent 
Accused before military commissions at no expense to the United States 
if, at the time of application, they meet the eligibility criteria set 
forth in 32 CFR 9.4(c)(3)(ii) as further detailed in this part, or they 
may be qualified on an ad hoc basis after being requested by an 
Accused. In both cases, qualification results in membership in the pool 
of available Civilian Defense Counsel.
    (2) An attorney seeking qualification as a member of the pool of 
available Civilian Defense Counsel shall submit an application, by 
letter, to: Office of the General Counsel, Department of Defense, 
(Attn: Chief Defense Counsel, Office of Military Commissions), 1600 
Defense Pentagon, Washington, DC 20301-1600. Applications will be 
comprised of the letter requesting qualification for membership, 
together with the following documents that demonstrate satisfaction of 
the criteria set forth in 32 CFR 9.4(c)(3)(ii):
    (i) Civilian Defense Counsel shall be United States citizens (32 
CFR 9.4(c)(3)(ii)(A)). Applicants will provide proof of citizenship 
(e.g., certified true copy of passport, birth certificate, or 
certificate of naturalization).
    (ii) Civilian Defense Counsel shall be admitted to the practice of 
law in a State, district, territory or possession of the United States, 
or before a Federal court (32 CFR 9.4(c)(3)(ii)(B)). Applicants will 
submit an official certificate showing that the applicant is an active 
member in good standing with the bar of a qualifying jurisdiction. The 
certificate must be dated within three months of the date of the Chief 
Defense Counsel's receipt of the application.
    (iii) Civilian Defense Counsel shall not have been the subject of 
any sanction or disciplinary action by any court, bar, or other 
competent governmental authority for relevant misconduct (32 CFR 
9.4(c)(2)(iii)).
    (A) An applicant shall submit a statement detailing all sanctions 
or disciplinary actions, pending or final, to which he has been 
subject, whether by a court, bar or other competent governmental 
authority, for misconduct of any kind. The statement shall identify the 
jurisdiction or authority that imposed the sanction or disciplinary 
action, together with any explanation deemed appropriate by the 
applicant. Additionally, the statement shall identify and explain any 
formal challenge to the attorney's fitness to practice law, regardless 
of the outcome of any subsequent proceedings. In the event that no 
sanction, disciplinary action or challenge has been imposed on or made 
against an applicant, the statement shall so state. Further, the 
applicant's statement shall identify each jurisdiction in which he has 
been admitted or to which he has applied to practice law, regardless of 
whether the applicant maintains a current active license in that 
jurisdiction, together with any dates of admission to or rejection by 
each such jurisdiction and, if no longer active, the date of and basis 
for inactivation. The information shall be submitted either in the form 
of a sworn notarized statement or as a declaration under penalty of 
perjury of the laws of the United States. The sworn statement or 
declaration must be executed and dated within three months of the date 
of the Chief Defense Counsel's receipt of the application.
    (B) Further, applicants shall submit a properly executed 
Authorization for Release of Information (Appendix A to this part), 
authorizing the Chief Defense Counsel or his designee to obtain 
information relevant to qualification of the applicant as a member of 
the Civilian Defense Counsel pool from each jurisdiction in which the 
applicant has been admitted or to which he has applied to practice law.
    (iv) Civilian Defense Counsel shall be determined to be eligible 
for access to information classified at the level SECRET or higher 
under the authority of and in accordance with the procedures described 
in Department of Defense Regulation, DoD 5200.2-R, ``Personnel Security 
Program.'' \1\ (32 CFR 9.4(c)(2)(iv)
    (A) Civilian Defense Counsel applicants who possess a valid current 
security clearance of SECRET or higher shall provide, in writing, the 
date of their background investigation, the date such clearance was 
granted, the level of the clearance, and the adjudicating authority.
    (B) Civilian Defense Counsel applicants who do not possess a valid 
current security clearance of SECRET or higher shall state in writing 
their willingness to submit to a background investigation in accordance 
with DoD 5200.2-R and to pay any actual costs associated with the 
processing of the same. The security clearance application, 
investigation, and adjudication process will not be initiated until the 
applicant has submitted an application that otherwise fully complies 
with this part and the Chief Defense Counsel has determined that the 
applicant would otherwise be qualified for membership in the Civilian 
Defense Counsel pool. Favorable adjudication of the applicant's 
personnel security investigation must be completed before an applicant 
will be qualified for membership in the pool of Civilian Defense 
Counsel. The Chief Defense Counsel may, at his discretion, withhold 
qualification and wait to initiate the security clearance process until 
such time as the Civilian Defense Counsel's services are likely to be 
sought.
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    \1\ Available at http://www.dtic.mil/whs/directives.
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    (v) Civilian Defense Counsel shall have signed a written agreement 
to comply with all applicable regulations or instructions for counsel, 
including any rules of court for conduct during the course of 
proceedings (32 CFR 9.4(c)(2)(v)). This requirement shall be satisfied 
by the execution of the

[[Page 39393]]

Affidavit And Agreement By Civilian Defense Counsel at Appendix B to 
this part. The Affidavit And Agreement By Civilian Defense Counsel 
shall be executed and agreed to without change, (i.e., no omissions, 
additions or substitutions). Proper execution shall require the 
notarized signature of the applicant. The Affidavit And Agreement By 
Civilian Defense Counsel shall be dated within three months of the date 
of the Chief Defense Counsel's receipt of the application.
    (3) Applications mailed in a franked U.S. Government envelope or 
received through U.S. Government distribution will not be considered. 
Telefaxed or electronic mail application materials will not be 
accepted. Failure to provide all of the requisite information and 
documentation may result in rejection of the application. A false 
statement in any part of the application may preclude qualification 
and/or render the applicant liable for disciplinary or criminal 
sanction, including under 18 U.S.C. 1001.
    (b) Application review. (1) The Chief Defense Counsel or his 
designee shall review all Civilian Defense Counsel pool applications 
for compliance 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 with this part.
    (2) The Chief Defense Counsel shall consider all applicants for 
qualification as members of the Civilian Defense Counsel pool without 
regard to race, religion, color, sex, age, national origin, or other 
non-disqualifying physical or mental disability.
    (3) The Chief Defense Counsel may reject any Civilian Defense 
Counsel application that is incomplete or otherwise fails to 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,'' or with this part.
    (4) Subject to review by the General Counsel of the Department of 
Defense, the Chief Defense Counsel shall determine the number of 
qualified attorneys that shall constitute the pool of available 
Civilian Defense Counsel. Similarly, subject to review by the General 
Counsel of the Department of Defense, the Chief Defense Counsel shall 
determine the qualification of applicants for membership in such pool. 
This shall include determinations as to whether any sanction, 
disciplinary action, or challenge is related to relevant misconduct 
that would disqualify the Civilian Defense Counsel applicant.
    (5) The Chief Defense Counsel's determination as to each 
applicant's qualification for membership in the pool of qualified 
Civilian Defense Counsel shall be deemed effective as of the date of 
the Chief Defense Counsel's written notification publishing such 
determination to the applicant. Subsequent to this notification, the 
retention of qualified Civilian Defense Counsel is effected upon 
written entry of appearance, communicated to the military commission 
through the Chief Defense Counsel.
    (6) The Chief Defense Counsel may reconsider his determination as 
to an individual's qualification as a member of the Civilian Defense 
Counsel pool on the basis of subsequently discovered information 
indicating material nondisclosure or misrepresentation in the 
application, or material violation of obligations of the Civilian 
Defense Counsel, or other good cause, or the matter may be referred to 
the Appointing Authority or the General Counsel of the Department of 
Defense, who may revoke or suspend the qualification of any member of 
the Civilian Defense Counsel pool.

Appendix A to Part 14--United States of America Authorization for 
Release of Information

United States of America

Authorization for Release of Information

(Carefully read this authorization to release information about you, 
then sign and date it in ink.)

    I authorize the Chief Defense Counsel, Office of Military 
Commissions, Department of Defense, his designee or other duly 
authorized representative of the Department of Defense who may be 
charged with assessing or determining my qualification for 
membership in the pool of Civilian Defense Counsel available to 
represent Accused before military commissions, to obtain any 
information from any court, the bar of any State, locality, 
district, territory or possession of the United States, or from any 
other governmental authority.
    This information may include, but is not limited to, information 
relating to: Any application for a security clearance; my admission 
or application for admission to practice law in any jurisdiction, 
including action by the jurisdiction upon such application, together 
with my current status with regard to the practice of law in such 
jurisdiction; any sanction or disciplinary action to which I have 
been subject for misconduct of any kind; and any formal challenge to 
my fitness to practice law, regardless of the outcome of subsequent 
proceedings.
    I authorize custodians of such records or information and other 
sources of information pertaining to me to release such at the 
request of the officials named above, regardless of any previous 
agreement to the contrary.
    I understand that for certain custodians or sources of 
information a separate specific release may be required and that I 
may be contacted for the purposes of executing such at a later date.
    I understand that the records or information released by 
custodians and other sources of information are for official use by 
the Department of Defense, only for the purposes provided herein, 
and that they may be redisclosed by the Department of Defense only 
as authorized by law.
    Copies of this authorization that show my signature are as valid 
as the original signed by me. This authorization is valid for five 
(5) years from the date signed or upon termination of my affiliation 
with the Department of Defense, whichever is later.

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Signature (sign in ink) SSN

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Date

Appendix B to Part 14--Affidavit and Agreement by Civilian Defense 
Counsel

Affidavit and Agreement by Civilian Defense Counsel

    Pursuant to Section 4(C)(3)(b) of Department of Defense Military 
Commission Order No. 1, ``Procedures for Trials by Military 
Commissions of Certain Non-United States Citizens in the War Against 
Terrorism,'' dated March 21, 2002 (``MCO No. 1''), Military 
Commission Instructions No. 4, ``Responsibilities of the Chief 
Defense Counsel, Detailed Defense Counsel, and Civilian Defense 
Counsel'' (``MCI No. 4'') and No. 5, ``Qualification of Civilian 
Defense Counsel'' (``MCI No. 5''), and in accordance with the 
President's Military Order of November 13, 2001, ``Detention, 
Treatment, and Trial of Certain Non-Citizens in the War Against 
Terrorism,'' 66 FR 57833 (Nov. 16, 2001) (``President's Military 
Order''), I [Name of Civilian Attorney], make this Affidavit and 
Agreement for the purposes of applying for qualification as a member 
of the pool of Civilian Defense Counsel available to represent 
Accused before military commissions and serving in that capacity.
    I. Oaths or Affirmations. I swear or affirm that the following 
information is true to the best of my knowledge and belief:
    A. I have read and understand the President's Military Order, 
MCO No. 1, MCI No. 4, MCI No. 5, and all other Military Commission 
Orders and Instructions concerning the rules, regulations and 
instructions applicable to trial by military commissions. I will 
read all future Orders and Instructions applicable to trials by 
military commissions.
    B. I am aware that my qualification as a Civilian Defense 
Counsel does not guarantee my presence at closed military commission 
proceedings or guarantee my access to any information protected 
under Section 6(D)(5) or Section 9 of MCO No. 1.
    II. Agreements. I hereby agree to comply with all applicable 
regulations and instructions for counsel, including any rules of 
court for conduct during the course of proceedings, and specifically 
agree, without limitation, to the following:
    A. I will notify the Chief Defense Counsel and, as applicable, 
the relevant Presiding Officer immediately if, after the execution 
of

[[Page 39394]]

this Affidavit and Agreement but prior to the conclusion of 
proceedings (defined as the review and final decision of the 
President or, if designated, the Secretary of Defense), if there is 
any change in any of the information provided in my application, 
including this Affidavit and Agreement, for qualification as member 
of the Civilian Defense Counsel pool. I understand that such 
notification shall be in writing and shall set forth the substantive 
nature of the changed information.
    B. I will be well-prepared and will conduct the defense 
zealously, representing the Accused throughout the military 
commission process, from the inception of my representation through 
the completion of any post trial proceedings as detailed in Section 
6(H) of MCO No. 1. I will ensure that these proceedings are my 
primary duty. I will not seek to delay or to continue the 
proceedings for reasons relating to matters that arise in the course 
of my law practice or other professional or personal activities that 
are not related to military commission proceedings.
    C. The Defense Team shall consist entirely of myself, Detailed 
Defense Counsel, and other personnel provided by the Chief Defense 
Counsel, the Presiding Officer, or the Appointing Authority. I will 
make no claim against the U.S. Government for any fees or costs 
associated with my conduct of the defense or related activities or 
efforts.
    D. Recognizing that my representation does not relieve Detailed 
Defense Counsel of duties specified in Section 4(C)(2) of MCO No. 1, 
I will work cooperatively with such counsel to ensure coordination 
of efforts and to ensure such counsel is capable of conducting the 
defense independently if necessary.
    E. During the pendency of the proceedings, unless I obtain 
approval in advance from the Presiding Officer to do otherwise, I 
will comply with the following restrictions on my travel and 
communications:
    1. I will not travel or transmit documents from the site of the 
proceedings without the approval of the Appointing Authority or the 
Presiding Officer. The Defense Team and I will otherwise perform all 
of our work relating to the proceedings, including any electronic or 
other research, at the site of the proceedings (except that this 
shall not apply during post-trial proceedings detailed in Section 
6(H) of MCO No. 1).
    2. I will not discuss or otherwise communicate or share 
documents or information about the case with anyone except persons 
who have been designated as members of the Defense Team in 
accordance with this Affidavit and Agreement and other applicable 
rules, regulations and instructions.
    F. At no time, to include any period subsequent to the 
conclusion of the proceedings, will I make any public or private 
statements regarding any closed sessions of the proceedings or any 
classified information or material, or document or material 
constituting protected information under MCO No. 1.
    G. I understand and agree to comply with all rules, regulations 
and instructions governing the handling of classified information 
and material. Furthermore, no document or material constituting 
protected information under MCO No. 1, regardless of its 
classification level, may leave the site of the proceedings.
    H. I understand that there may be reasonable restrictions on the 
time and duration of contact I may have with my client, as imposed 
by the Appointing Authority, the Presiding Officer, detention 
authorities, or regulation.
    I. I understand that my communications with my client, even if 
traditionally covered by the attorney-client privilege, may be 
subject to monitoring or review by government officials, using any 
available means, for security and intelligence purposes. I 
understand that any such monitoring will only take place in limited 
circumstances when approved by proper authority, and that any 
evidence or information derived from such communications will not be 
used in proceedings against the Accused who made or received the 
relevant communication. I further understand that communications are 
not protected if they would facilitate criminal acts or a conspiracy 
to commit criminal acts, or if those communications are not related 
to the seeking or providing of legal advice.
    J. I agree that I shall reveal to the Chief Defense Counsel and 
any other appropriate authorities, information relating to the 
representation of my client to the extent that I reasonably believe 
necessary to prevent the commission of a future criminal act that I 
believe is likely to result in death or substantial bodily harm, or 
significant impairment of national security.
    K. I understand and agree that nothing in this Affidavit and 
Agreement creates any substantive, procedural, or other rights for 
me as counsel or for my client(s).
 /s/-------------------------------------------------------------------
 Print Name:-----------------------------------------------------------
 Address:--------------------------------------------------------------
 Date:-----------------------------------------------------------------

State of )
County of )

    Sworn to and subscribed before me, by ----------, this ---- day 
of --------, 20----.

Notary

 My commission expires:------------------------------------------------

    Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16382 Filed 6-26-03; 12:40 pm]
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