[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Rules and Regulations]
[Pages 39395-39396]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16384]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 16


Sentencing

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule promulgates policy, assigns responsibilities, and 
prescribes procedures for matters related to sentencing of persons with 
regard to whom a finding of guilty is entered for an offense referred 
for trial by a military commission appointed 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 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 16 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 16 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 16 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 39396]]

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

    It has been certified that 32 CFR part 16 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 16 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 16

    Military law.


0
Accordingly, 32 CFR part 16 is added to Subtitle A, Chapter I, 
Subchapter B to read as follows:

PART 16--SENTENCING

Sec.
16.1 Purpose.
16.2 Authority.
16.3 Available sentences.
16.4 Sentencing procedures.

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


Sec.  16.1  Purpose.

    This part promulgates policy, assigns responsibilities, and 
prescribes procedures for matters related to sentencing of persons with 
regard to whom a finding of guilty is entered for an offense referred 
for trial by a military commission appointed 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.  16.2  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.  16.3  Available sentences.

    (a) General. 32 CFR part 9 permits a military commission wide 
latitude in sentencing. Any lawful punishment or condition of 
punishment is authorized, including death, so long as the prerequisites 
detailed in 32 CFR part 9 are met. Detention associated with an 
individual's status as an enemy combatant shall not be considered to 
fulfill any term of imprisonment imposed by a military commission. The 
sentence determination should be made while bearing in mind that there 
are several principal reasons for a sentence given to those who violate 
the law. Such reasons include: punishment of the wrongdoer; protection 
of society from the wrongdoer; deterrence of the wrongdoer and those 
who know of his crimes and sentence from committing the same or similar 
offenses; and rehabilitation of the wrongdoer. In determining an 
appropriate sentence, the weight to be accorded any or all of these 
reasons rests solely within the discretion of commission members. All 
sentences should, however, be grounded in a recognition that military 
commissions are a function of the President's war-fighting role as 
Commander-in-Chief of the Armed Forces of the United States and of the 
broad deterrent impact associated with a sentence's effect on adherence 
to the laws and customs of war in general.
    (b) Conditions of imprisonment. Decisions regarding the location 
designated for any imprisonment, the conditions under which a sentence 
to imprisonment is served, or the privileges accorded one during any 
period of imprisonment should generally not be made by the commission. 
Those decisions and actions, however, may be appropriate subjects for 
recommendation to the person making a final decision on the sentence in 
accordance with of 32 CFR 9.6(h).
    (c) Prospective recommendations for sentence modification. A 
sentence imposed by military commission may be accompanied by a 
recommendation to suspend, remit, commute or otherwise modify the 
adjudged sentence in concert with one or more conditions upon which the 
suspension, remission, commutation, or other modification is contingent 
(usually relating to the performance, behavior or conduct of the 
Accused). Unless otherwise directed, a decision or action in accordance 
with such a recommendation will be effected by direction or delegation 
to the Appointing Authority by the official making a final decision on 
the sentence in accordance with of 32 CFR 9.6(h).


Sec.  16.4  Sentencing procedures.

    (a) General. 32 CFR part 9 permits the military commission 
substantial discretion regarding the conduct of sentencing proceedings. 
Sentencing proceedings should normally proceed expeditiously. In the 
discretion of the Presiding Officer, as limited by the Appointing 
Authority, reasonable delay between the announcement of findings and 
the commencement of sentencing proceedings may be authorized to 
facilitate the conduct of proceedings in accordance with of 32 CFR 
9.6(b).
    (b) Information relevant to sentencing. 32 CFR 9.6(e)(10) permits 
the Prosecution and Defense to present information to aid the military 
commission in determining an appropriate sentence. Such information may 
include a recommendation of an appropriate sentence, information 
regarding sentence ranges for analogous offenses (e.g., the sentencing 
range under the Federal Sentencing Guidelines that could be applicable 
to the Accused for the most analogous federal offenses), and other 
relevant information. Regardless of any presentation by the Prosecution 
or Defense, the military commission shall consider any evidence 
admitted for consideration prior to findings regarding guilt. The 
Presiding Officer may limit or require the presentation of certain 
information 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'.
    (c) Cases involving plea agreements. In accordance with 32 CFR 
9.6(a)(4), after determining the voluntary and informed nature of a 
plea agreement approved by the Appointing Authority, the military 
commission is bound to adjudge findings and a sentence pursuant to that 
plea agreement. Accordingly, the Presiding Officer may exercise the 
authority granted in of 32 CFR 9.6(e) to curtail or preclude the 
presentation of information and argument relative to the military 
commission's determination of an appropriate sentence.
    (d) Special duties. In cases involving plea agreements or 
recommendations for certain conditions of imprisonment or prospective 
sentence modification, the Prosecution and Defense shall provide 
whatever post-trial information or recommendation as is relevant to any 
subsequent decision regarding such condition or suspension, remission, 
commutation, or other modification recommendation associated with the 
sentence.

    Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16384 Filed 6-26-03; 12:40 pm]
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