10 U.S.C. § 948d — Jurisdiction of military commissions

Page 853 TITLE 10—ARMED FORCES § 948d specifically provided therein or in this chapter, and many of the provisions of chapter 47 of this title are by their terms inapplicable to military commissions. The judicial construction and ap- plication of chapter 47 of this title, while in- structive, is therefore not of its own force bind- ing on military commissions established under this chapter. (d) INAPPLICABILITY OF CERTAIN PROVISIONS.— (1) The following provisions of this title shall not apply to trial by military commission under this chapter: (A) Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial re- lating to speedy trial. (B) Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimi- nation. (C) Section 832 (article 32 of the Uniform Code of Military Justice), relating to prelimi- nary hearing. (2) Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by the terms of such provisions or by this chap- ter. (e) GENEVA CONVENTIONS NOT ESTABLISHING PRIVATE RIGHT OF ACTION.—No alien unprivileged enemy belligerent subject to trial by military commission under this chapter may invoke the Geneva Conventions as a basis for a private right of action. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2575; amended Pub. L. 113–66, div. A, title XVII, § 1702(c)(3)(E), Dec. 26, 2013, 127 Stat. 958.) Editorial Notes PRIOR PROVISIONS A prior section 948b, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2602, related to military commis- sions generally, prior to the general amendment of this chapter by Pub. L. 111–84. AMENDMENTS 2013—Subsec. (d)(1)(C). Pub. L. 113–66 substituted ‘‘preliminary hearing’’ for ‘‘pretrial investigation’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 2013 AMENDMENT Amendment by Pub. L. 113–66 effective on the later of Dec. 26, 2014, or the date of the enactment of the Carl Levin and Howard P. ‘‘Buck’’ McKeon National Defense Authorization Act for Fiscal Year 2015 (Dec. 19, 2014) and applicable with respect to preliminary hearings conducted on or after that effective date, see section 1702(d)(1) of Pub. L. 113–66, set out as a note under sec- tion 802 of this title. Executive Documents EX. ORD. NO. 13425. TRIAL OF ALIEN UNLAWFUL ENEMY COMBATANTS BY MILITARY COMMISSION Ex. Ord. No. 13425, Feb. 14, 2007, 72 F.R. 7737, provided: By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Military Commissions Act of 2006 (Public Law 109–366), the Authorization for Use of Military Force (Public Law 107–40), and section 948b(b) of title 10, United States Code, it is hereby ordered as follows: SECTION 1. Establishment of Military Commissions. There are hereby established military commissions to try alien unlawful enemy combatants for offenses tri- able by military commission as provided in chapter 47A of title 10. SEC. 2. Definitions. As used in this order: (a) ‘‘unlawful enemy combatant’’ has the meaning provided for that term in section 948a(1) of title 10; and (b) ‘‘alien’’ means a person who is not a citizen of the United States. SEC. 3. Supersedure. This order supersedes any provi- sion of the President’s Military Order of November 13, 2001 (66 Fed. Reg. 57,833), that relates to trial by mili- tary commission, specifically including: (a) section 4 of the Military Order; and (b) any requirement in section 2 of the Military Order, as it relates to trial by military commission, for a determination of: (i) reason to believe specified matters; or (ii) the interest of the United States. SEC. 4. General Provisions. (a) This order shall be im- plemented in accordance with applicable law and sub- ject to the availability of appropriations. (b) The heads of executive departments and agencies shall provide such information and assistance to the Secretary of Defense as may be necessary to implement this order and chapter 47A of title 10. (c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforce- able at law or in equity by any party against the United States, its departments, agencies, entities, offi- cers, employees, or agents, or any other person. GEORGE W. BUSH. § 948c. Persons subject to military commissions Any alien unprivileged enemy belligerent is subject to trial by military commission as set forth in this chapter. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2576.) Editorial Notes PRIOR PROVISIONS A prior section 948c, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2602, related to persons subject to military commissions, prior to the general amendment of this chapter by Pub. L. 111–84. § 948d. Jurisdiction of military commissions A military commission under this chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Mili- tary Justice), or the law of war, whether such offense was committed before, on, or after Sep- tember 11, 2001, and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, in- cluding the penalty of death when specifically authorized under this chapter. A military com- mission is a competent tribunal to make a find- ing sufficient for jurisdiction. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2576.) Editorial Notes PRIOR PROVISIONS A prior section 948d, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2603, related to jurisdiction of Page 854 TITLE 10—ARMED FORCES § 948h military commissions, prior to the general amendment of this chapter by Pub. L. 111–84. A prior section 948e, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2603, which required the Sec- retary of Defense to submit an annual report to con- gressional committees, was omitted in the general amendment of this chapter by Pub. L. 111–84. See sec- tion 1806 of Pub. L. 111–84, set out as a note under sec- tion 948a of this title. SUBCHAPTER II—COMPOSITION OF MILITARY COMMISSIONS Sec. 948h. Who may convene military commissions. 948i. Who may serve on military commissions. 948j. Military judge of a military commission. 948k. Detail of trial counsel and defense counsel. 948l. Detail or employment of reporters and inter- preters. 948m. Number of members; excuse of members; ab- sent and additional members. § 948h. Who may convene military commissions Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States des- ignated by the Secretary for that purpose. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2576.) Editorial Notes PRIOR PROVISIONS A prior section 948h, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2603, related to who may convene military commissions, prior to the general amendment of this chapter by Pub. L. 111–84. § 948i. Who may serve on military commissions (a) IN GENERAL.—Any commissioned officer of the armed forces on active duty is eligible to serve on a military commission under this chap- ter, including commissioned officers of the re- serve components of the armed forces on active duty, commissioned officers of the National Guard on active duty in Federal service, or re- tired commissioned officers recalled to active duty. (b) DETAIL OF MEMBERS.—When convening a military commission under this chapter, the convening authority shall detail as members thereof such members of the armed forces eligi- ble under subsection (a) who, in the opinion of the convening authority, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial tem- perament. No member of an armed force is eligi- ble to serve as a member of a military commis- sion when such member is the accuser or a wit- ness for the prosecution or has acted as an in- vestigator or counsel in the same case. (c) EXCUSE OF MEMBERS.—Before a military commission under this chapter is assembled for the trial of a case, the convening authority may excuse a member from participating in the case. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2576.) Editorial Notes PRIOR PROVISIONS A prior section 948i, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2603, related to who may serve on military commissions, prior to the general amendment of this chapter by Pub. L. 111–84. § 948j. Military judge of a military commission (a) DETAIL OF MILITARY JUDGE.—A military judge shall be detailed to each military commis- sion under this chapter. The Secretary of De- fense shall prescribe regulations providing for the manner in which military judges are so de- tailed to military commissions. The military judge shall preside over each military commis- sion to which such military judge has been de- tailed. (b) ELIGIBILITY.—A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court, or a member of the bar of the highest court of a State, and who is certified to be qualified for duty under section 826 of this title (article 26 of the Uniform Code of Military Justice) as a mili- tary judge of general courts-martial by the Judge Advocate General of the armed force of which such military judge is a member. (c) INELIGIBILITY OF CERTAIN INDIVIDUALS.—No person is eligible to act as military judge in a case of a military commission under this chap- ter if such person is the accuser or a witness or has acted as investigator or a counsel in the same case. (d) CONSULTATION WITH MEMBERS; INELIGI- BILITY TO VOTE.—A military judge detailed to a military commission under this chapter may not consult with the members except in the presence of the accused (except as otherwise pro- vided in section 949d of this title), trial counsel, and defense counsel, nor may such military judge vote with the members. (e) OTHER DUTIES.—A commissioned officer who is certified to be qualified for duty as a military judge of a military commission under this chapter may perform such other duties as are assigned to such officer by or with the ap- proval of the Judge Advocate General of the armed force of which such officer is a member or the designee of such Judge Advocate General. (f) PROHIBITION ON EVALUATION OF FITNESS BY CONVENING AUTHORITY.—The convening author- ity of a military commission under this chapter may not prepare or review any report con- cerning the effectiveness, fitness, or efficiency of a military judge detailed to the military com- mission which relates to such judge’s perform- ance of duty as a military judge on the military commission. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2577.) Editorial Notes PRIOR PROVISIONS A prior section 948j, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2604, related to military judges of military commissions, prior to the general amendment of this chapter by Pub. L. 111–84. § 948k. Detail of trial counsel and defense coun- sel (a) DETAIL OF COUNSEL GENERALLY.—(1) Trial counsel and military defense counsel shall be de- tailed for each military commission under this chapter.