[Federal Register Volume 69, Number 107 (Thursday, June 3, 2004)]
[Rules and Regulations]
[Pages 31291-31293]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-12471]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 18


Appointing Authority for Military Commissions

AGENCY: Department of Defense.

ACTION: Final rule.

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SUMMARY: This part establishes the position and office of the 
Appointing Authority for Military Commissions pursuant to the 
President's Military Order on the detention, treatment, and trial of 
certain non-citizens in the war against terrorism; and the DoD Military 
Commission Order No. 1. It describes the Appointing Authority's 
responsibilities and functions, relationships with other officials in 
the Department of Defense, and provides authority for the Appointing 
Authority to publish issuances necessary to carry out assigned 
responsibilities, such as supervising the military commission process, 
appointing military commission members, making sure that the 
prosecution and defense have the resources necessary to carry out their 
duties, approving charges against individual detainees, and approving 
plea agreements. It also describes the responsibilities and functions 
of the General Counsel of the Department of Defense, the Chairman of 
the Joint Chiefs of Staff, and the Secretaries of the Military 
Department relative to those of the Appointing Authority in the conduct 
of military commissions. Publication of this document benefits the 
public by making the military commission process transparent and 
demonstrating that the process is complete and fair.

DATES: This rule is effective February 10, 2004.

FOR FURTHER INFORMATION CONTACT: Major John Smith, USAF, Office of the 
Military Commissions or LTC John Hall, USA, Deputy Legal Advisor to the 
Appoint Authority.

SUPPLEMENTARY INFORMATION: 

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

    It has been determined that 32 CFR part 18 is not a significant 
regulatory action. The rule does not:
    (1) Have an annual effect to the economy of $100 million or more or 
adversely affect in a material way the economy; a section of the 
economy; productivity; competition; jobs; the environment; public 
health or safety; or state, local, or tribal governments or 
communities;
    (2) Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another Agency;
    (3) Materially alter the budgetary impact of entitlements, grants, 
user fees, or loan programs, or the rights and obligations of 
recipients thereof; or
    (4) Raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

    It has been certified that this rule 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.

[[Page 31292]]

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601)

    It has been certified 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. This rule pertains to Department of Defense 
components and non citizens subject to the President's Military Order, 
November 13, 2001. It does not affect small entities pursuant to 
Section 601, Title 5 U.S.C.

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

    It has been certified that this rule does impose reporting or 
recordkeeping requirements under the Paperwork Reduction Act of 1995.

Federalism (Executive Order 13132)

    It has been certified that this rule 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 18

    Military law.

0
Accordingly, title 32 of the Code of Federal Regulations, Chapter I, 
Subchapter B is amended to add Part 18 to read as follows:

PART 18--APPOINTING AUTHORITY FOR MILITARY COMMISSIONS

Sec.
18.1 Purpose
18.2 Applicability and scope.
18.3 Organization.
18.4 Responsibilities and functions.
18.5 Relationships.
18.6 Authorities.

    Authority: 10 U.S.C. 113 and 131(b)(8).


Sec.  18.1  Purpose.

    Pursuant to the authority vested in the Secretary of Defense under 
the U.S. Constitution, Article II, Section 2, Clause 2, 10 U.S.C. 113 
and 131(b)(8) and Military Order of November 13, 2001, ``Detention, 
Treatment, and Trial of Certain Non-Citizens in the War Against 
Terrorism,'' (66 FR 57833 (November 16, 2001)) (``President's Military 
Order'') this part establishes the position and office of the 
Appointing Authority for Military Commissions, with the 
responsibilities, functions, relationships, and authorities as 
prescribed herein.


Sec.  18.2  Applicability and scope.

    This part applies to:
     (a) The Office of the Secretary of Defense (OSD), the Military 
Departments, the Chairman of the Joint Chiefs of Staff, the Combatant 
Commands, the Office of the Inspector General of the Department of 
Defense, the Defense Agencies, the DoD Field Activities, all other 
organizational entities in the Department of Defense (hereafter 
referred to collectively as ``the DoD Components'').
     (b) Any special trial counsel of the Department of Justice who may 
be made available by the Attorney General of the United States to serve 
as a prosecutor in trials before military commissions pursuant to 
section 4(B)(2) of DoD Military Commission Order No. 1,\1\ ``Procedures 
for Trials by Military Commissions of Certain Non-United States 
Citizens in the War Against Terrorism,'' March 21, 2002.
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    \1\ DoD Military Commission Orders and Instructions referenced 
in this Directive can be found at http://www.dtic.mil/whs/directives/corres/mco.htm.
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     (c) Any civilian attorney who seeks qualification as a member of a 
pool of qualified Civilian Defense Counsel authorized in section 
4(C)(3)(b) of DoD Military Commission Order No. 1; and to any attorney 
who has been qualified as a member of that pool.


Sec.  18.3  Organization.

     (a) The Appointing Authority for Military Commissions is 
established in the Office of the Secretary of Defense under the 
authority, direction, and control of the Secretary of Defense.
     (b) The Office of the Appointing Authority shall consist of the 
Appointing Authority, the Legal Advisor to the Appointing Authority, 
and such other subordinate officials and organizational elements as are 
established by the General Counsel of the Department of Defense within 
the resources assigned by the Secretary of Defense.


Sec.  18.4  Responsibilities and functions.

     (a) The Appointing Authority for Military Commissions is an 
officer of the United States appointed by the Secretary of Defense 
pursuant to the U.S. Constitution and 10 U.S.C. In this capacity, the 
Appointing Authority for Military Commissions shall exercise the duties 
prescribed in DoD Military Commission Order No. 1 and this part and 
shall:
     (1) Issue orders from time to time appointing one or more military 
commissions to try individuals subject to the President's Military 
Order and DoD Military Commission Order No. 1; and appoint any other 
personnel necessary to facilitate military commissions.
     (2) Appoint military commission members and alternate members, 
based on competence to perform the duties involved. Remove members and 
alternate members for good cause pursuant to Military Commission 
Instruction No. 8.
     (3) Designate a Presiding Officer from among the members of each 
military commission to preside over the proceedings of that military 
commission. The Presiding Officer shall be a military officer who is a 
judge advocate of any United States Armed Force.
     (4) Approve and refer charges prepared by that Prosecution against 
an individual or individuals subject to Military Order of November 13, 
2001.
     (5) Approve plea agreements with an Accused.
     (6) Decide interlocutory questions certified by the Presiding 
Officer.
     (7) Ensure military commission proceedings are open to the maximum 
extent practicable. Decide when military commission proceedings should 
be closed pursuant to Military Order of November 13, 2001 and DoD 
Military Commission Order No. 1.
     (8) Make decisions related to attendance at military commission 
proceedings by the public and accredited press and the public release 
of transcripts. Such matters, including policy and plans for media 
coverage shall be coordinated with the Assistant Secretary of Defense 
for Public Affairs (ASD(PA)) and, as appropriate, the Assistant 
Secretary of Defense for Special Operations/Low Intensity Conflict 
(ASD(SO/LIC)) under the Under Secretary of Defense for Policy (USD(P)).
     (9) Approve or disapprove requests from the Prosecution and 
Defense to communicate with news media representatives regarding cases 
and other matters related to military commissions. Such matters shall 
be coordinated with the ASD(PA).
    (10) Detail or employ personnel such as court reporters, 
interpreters, security personnel, bailiffs, and clerks to support 
military commissions, as necessary. When such details effect resources 
committed to operational missions, coordinate with the ASD (SO/LIC) 
under the USD(P) and the Heads of appropriate DoD Components.
    (11) Order that such investigative or other resources be made 
available to Defense Counsel and the Accused ad deemed necessary for a 
full and fair trial, including appointing interpreters.
    (12) Promptly review military commission records of trial for

[[Page 31293]]

administrative completeness and determine appropriate disposition, 
either transmitting the record of trial to the Review Panel or 
returning it to the military commission for any necessary supplementary 
proceedings.
    (13) Implement directions of officials with final decision-making 
authority for sentences.
    (14) Perform supervisory and performance evaluation duties pursuant 
to this part and DoD Military Commission Instruction No. 6.
    (15) Coordinate matters involving members of the Congress, 
including correspondence, with the Assistant Secretary of Defense for 
Legislative Affairs; and coordinate and exchange data and information 
with other OSD officials, the Heads of the DoD Components, and other 
Federal officials having collateral or related functions.
    (16) Establish, maintain, and preserve records that serve as 
evidence of the organization, functions, policies, decisions, 
procedures, operations, and other activities of the Office of the 
Appointing Authority for Military Commissions in accordance with Title 
44 U.S.C.
    (17) Perform such other functions as the Secretary of Defense may 
prescribe.
    (b) The General Counsel of the Department of Defense shall:
    (1) Review and approve such regulations, instructions, memoranda, 
and other DoD publications prepared by the Appointing Authority (see 
Sec.  18.6(c)) for the conduct of proceedings by military commissions 
established pursuant to Military Order of November 13, 2001 and DoD 
Military Commission Order No. 1.
    (2) Provide guidance and issue instructions necessary to facilitate 
the conduct of proceedings by military commissions established pursuant 
to Military Order of November 13, 2001 and DoD Military Commission 
Order No. 1, including but not limited to instructions pertaining to 
military commission-related offices, performance evaluations and 
reporting relationships.
    (c) The Chairman of the Joint Chiefs of Staff and the OSD Principal 
Staff Assistants shall exercise their designated authorities and 
responsibilities as established by law or DoD guidance to support the 
Appointing Authority for Military Commissions in the implementation of 
the responsibilities and functions specified herein.
    (d) The Secretaries of the Military Departments shall support the 
personnel requirements of the Appointing Authority as validated by the 
General Counsel of the Department of Defense and provide other 
requested assistance and support within their capabilities.


Sec.  18.5  Relationships.

    (a) In the performance of assigned functions and responsibilities, 
the Appointing Authority for Military Commission shall:
    (1) Report directly to the Secretary of Defense.
    (2) Use existing facilities and services of the Department of 
Defense and other Federal Agencies, whenever practicable, to avoid 
duplication and to achieve an appropriate level of efficiency and 
economy.
    (b) Other OSD officials and the Heads of the DoD Components shall 
coordinate with the Appointing Authority for Military Commissions on 
all matters related to the responsibilities and functions cited in 
Sec.  18.4.
    (c) Nothing herein shall be interpreted to subsume or replace the 
responsibilities, functions, or authorities of the OSD Principal Staff 
Assistants, the Secretaries of the Military Departments, the Chairman 
of the Joint Chiefs of Staff, the Commanders of Combatant Commands, or 
the Heads of Defense Agencies or the Department of Defense Field 
Activities prescribed by law or Department of Defense guidance.


Sec.  18.6  Authorities.

    The Appointing Authority for Military Commissions is hereby 
delegated authority to:
    (a) Obtain reports and information, consistent with DoD Directive 
8910.1 as necessary to carry out assigned functions.
    (b) Communicate directly with the Heads of the DoD Components as 
necessary to carry out assigned functions, including the transmission 
of requests for advice and assistance. Communications to the Military 
Departments shall be transmitted through the Secretaries of the 
Military Departments, their designees, or as otherwise provided in law 
or directed by the Secretary of Defense in other Department of Defense 
issuances. Communications to the Commanders of the Combatant Commands, 
except in unusual circumstances, shall be transmitted through the 
Chairman of the Joint Chiefs of Staff.
    (c) Subject to the approval of the General Counsel of the 
Department of Defense, issue DoD Publications and one-time directive-
type memoranda consistent with DoD 5025.1-M; Military Commission 
Instructions consistent with DoD Military Commission Instruction No. 1; 
and such other regulations as are necessary or appropriate for the 
conduct of proceedings by military commissions established pursuant to 
Military Order of November 13, 2001 and DoD Military Commission Order 
No. 1. Instructions to the Military Departments shall be issued through 
the Secretaries of the Military Departments. Instructions to the 
Combatant Commands, except in unusual circumstances, shall be 
communicated through the Chairman of the Joint Chiefs of Staff.
    (d) Communicate with other Government officials, representatives of 
the Legislative Branch, members of the public, and representatives of 
foreign governments, as applicable, in carrying out assigned functions.

    Dated: May 26, 2004.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 04-12471 Filed 6-2-04; 8:45 am]
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