[Federal Register Volume 68, Number 126 (Tuesday, July 1, 2003)]
[Rules and Regulations]
[Pages 39397-39398]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-16385]



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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 17


Administrative Procedures

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This rule promulgates policy, assigns responsibilities, and 
prescribes procedures for the conduct of trials 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 17 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 17 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 17 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 17 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 17 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 17

    Military law.


0
Accordingly, 32 CFR part 17 is added to Subtitle A, Chapter I, 
Subchapter B to read as follows:

PART 17--ADMINISTRATIVE PROCEDURES

Sec.
17.1 Purpose.
17.2 Authority.
17.3 Commission personnel.
17.4 Interlocutory questions.
17.5 Implied duties of the presiding officer.
17.6 Disclosures.

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


Sec.  17.1  Purpose.

    This part promulgates policy, assigns responsibilities, and 
prescribes procedures for the conduct of trials 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.  17.2  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.  17.3  Commission personnel.

    (a) Appointment and removal of Commission members. (1) In 
accordance with 32 CFR part 9, the Appointing Authority shall appoint 
at least three but no more than seven members and one or two alternate 
members. The Appointing Authority may remove members and alternate 
members for good cause. In the event a member (or alternate member) is 
removed for good cause, the Appointing Authority may replace the 
member, direct that an alternate member serve in the place of the 
original member, direct that proceedings simply continue without the 
member, or convene a new commission. In the absence of guidance from 
the Appointing Authority regarding replacement, the Presiding Officer 
shall select an alternate member to replace the member in question.
    (2) The Presiding Officer shall determine if it is necessary to 
conduct or permit questioning of members (including the Presiding 
Officer) on issues of whether there is good cause for their removal. 
The Presiding Officer may permit questioning in any manner he deems 
appropriate. Consistent with 32 CFR part 9, any such questioning shall 
be narrowly focused on issues pertaining to whether good cause may 
exist for the removal of any member.
    (3) From time to time, it may be appropriate for a Presiding 
Officer to forward to the Appointing Authority information and, if 
appropriate, a recommendation relevant to the question of whether a 
member (including the Presiding Officer) should be removed for good 
cause. While awaiting the Appointing Authority's decision on such 
matter, the Presiding Officer may elect either to hold proceedings in 
abeyance or to continue. The Presiding Officer may issue any 
appropriate instructions to the member whose continued service is in 
question. A military commission shall not engage in deliberations on 
findings or sentence prior to the Appointing Authority's decision in 
any case in which the Presiding Officer has recommended a member's 
removal.
    (b) Military commission security officer. The Appointing Authority 
may detail a Security Officer to advise a military commission on 
matters related to classified and protected information. In addition to 
any other duties assigned by the Appointing Authority, the Security 
Officer shall ensure that all classified or protected evidence and 
information is appropriately safeguarded at all times and that only 
personnel with the appropriate clearances and authorizations are 
present when classified or protected materials are presented before 
military commissions.
    (c) Other military commission personnel. The Appointing Authority 
may detail court reporters, interpreters, security personnel, bailiffs, 
clerks, and any other personnel to a military commission as deemed 
necessary. In the absence of a detailing by the Appointing

[[Page 39398]]

Authority, the Chief Prosecutor shall be responsible to ensure the 
availability of necessary or appropriate personnel to facilitate the 
impartial and expeditious conduct of full and fair trials by military 
commission.


Sec.  17.4  Interlocutory questions.

    (a) Certification of interlocutory questions. The Presiding Officer 
shall generally adjudicate all motions and questions that arise during 
the course of a trial by military commission. In accordance with 32 CFR 
9.4(a)(5)(iv), however, the Presiding Officer shall certify all 
interlocutory questions, the disposition of which would effect a 
termination of proceedings with respect to a charge, for decision by 
the Appointing Authority. In addition, the Presiding Officer may 
certify other interlocutory questions to the Appointing Authority as 
the Presiding Officer deems appropriate.
    (b) Submission of interlocutory questions. The Presiding Officer 
shall determine what, if any, documentary or other materials should be 
forwarded to the Appointing Authority in conjunction with an 
interlocutory question.
    (c) Effect of interlocutory question certification on proceedings. 
While decision by the Appointing Authority is pending on any certified 
interlocutory question, the Presiding Officer may elect either to hold 
proceedings in abeyance or to continue.


Sec.  17.5  Implied duties of the presiding officer.

    The Presiding Officer shall ensure the execution of all ancillary 
functions necessary for the impartial and expeditious conduct of a full 
and fair trial by military commission in accordance with 32 CFR part 9. 
Such functions include, for example, scheduling the time and place of 
convening of a military commission, ensuring that an oath or 
affirmation is administered to witnesses and military commission 
personnel as appropriate, conducting appropriate in camera meetings to 
facilitate efficient trial proceedings, and providing necessary 
instructions to other commission members. The Presiding Officer shall 
rule on appropriate motions or, at his discretion consistent with 32 
CFR part 9, may submit them to the commission for decision or to the 
Appointing Authority as a certified interlocutory question.


Sec.  17.6  Disclosures.

    (a) General. Unless directed otherwise by the Presiding Officer 
upon a showing of good cause or for some other reason, counsel for the 
Prosecution and the Defense shall provide to opposing counsel, at least 
one week prior to the scheduled convening of a military commission, 
copies of all information intended for presentation as evidence at 
trial, copies of all motions the party intends to raise before the 
military commission, and names and contact information of all witnesses 
a party intends to call. Motions shall also be provided to the 
Presiding Officer at the time they are provided to opposing counsel. 
Unless directed otherwise by the Presiding Officer, written responses 
to any motions will be provided to opposing counsel and the Presiding 
Officer no later than three days prior to the scheduled convening of a 
military commission.
    (b) Notifications by the prosecution. The Prosecution shall provide 
the Defense with access to evidence known to the Prosecution that tends 
to exculpate the Accused as soon as practicable, and in no instance 
later than one week prior to the scheduled convening of a military 
commission.
    (c) Notifications by the defense. The Defense shall give notice to 
the Prosecution of any intent to raise an affirmative defense to any 
charge at least one week prior to the scheduled convening of a military 
commission.
    (d) Evidence related to mental responsibility. If the Defense 
indicates an intent to raise a defense of lack of mental responsibility 
or introduce expert testimony regarding an Accused's mental condition, 
the prosecution may require that the Accused submit to a mental 
examination by a military psychologist or psychiatrist, and both 
parties shall have access to the results of that examination.

    Dated: June 24, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-16385 Filed 6-26-03; 12:40 pm]
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