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Rule

Appointing Authority for Military Commissions

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Information about this document as published in the Federal Register.

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Start Preamble

AGENCY:

Department of Defense.

ACTION:

Final rule.

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.

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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.

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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.Start Printed 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.

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List of Subjects in 32 CFR Part 18

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

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PART 18—APPOINTING AUTHORITY FOR MILITARY COMMISSIONS

18.1
Purpose
18.2
Applicability and scope.
18.3
Organization.
18.4
Responsibilities and functions.
18.5
Relationships.
18.6
Authorities.
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Authority: 10 U.S.C. 113 and 131(b)(8).

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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.

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.

(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.

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.

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 Start Printed Page 31293administrative 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 § 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.

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 § 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.

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.

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Dated: May 26, 2004.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, Department of Defense.

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Footnotes

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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[FR Doc. 04-12471 Filed 6-2-04; 8:45 am]

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