10 U.S.C. § 949d — Sessions

Page 860 TITLE 10—ARMED FORCES § 949c § 949c. Duties of trial counsel and defense coun- sel (a) TRIAL COUNSEL.—The trial counsel of a military commission under this chapter shall prosecute in the name of the United States. (b) DEFENSE COUNSEL.—(1) The accused shall be represented in the accused’s defense before a military commission under this chapter as pro- vided in this subsection. (2) The accused may be represented by mili- tary counsel detailed under section 948k of this title or by military counsel of the accused’s own selection, if reasonably available. (3) The accused may be represented by civilian counsel if retained by the accused, provided that such civilian counsel— (A) is a United States citizen; (B) is admitted to the practice of law in a State, district, or possession of the United States, or before a Federal court; (C) has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct; (D) has been determined to be eligible for ac- cess to information classified at the level Se- cret or higher; and (E) has signed a written agreement to com- ply with all applicable regulations or instruc- tions for counsel, including any rules of court for conduct during the proceedings. (4) If the accused is represented by civilian counsel, military counsel shall act as associate counsel. (5) The accused is not entitled to be rep- resented by more than one military counsel. However, the person authorized under regula- tions prescribed under section 948k of this title to detail counsel, in such person’s sole discre- tion, may detail additional military counsel to represent the accused. (6) Defense counsel may cross-examine each witness for the prosecution who testifies before a military commission under this chapter. (7) Civilian defense counsel shall protect any classified information received during the course of representation of the accused in ac- cordance with all applicable law governing the protection of classified information, and may not divulge such information to any person not authorized to receive it. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2585.) Editorial Notes PRIOR PROVISIONS A prior section 949c, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2610, related to duties of trial counsel and defense counsel, prior to the general amendment of this chapter by Pub. L. 111–84. § 949d. Sessions (a) SESSIONS WITHOUT PRESENCE OF MEM- BERS.—(1) At any time after the service of charges which have been referred for trial by military commission under this chapter, the military judge may call the military commis- sion into session without the presence of the members for the purpose of— (A) hearing and determining motions raising defenses or objections which are capable of de- termination without trial of the issues raised by a plea of not guilty; (B) hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members; (C) if permitted by regulations prescribed by the Secretary of Defense, receiving the pleas of the accused; and (D) performing any other procedural func- tion which may be performed by the military judge under this chapter or under rules pre- scribed pursuant to section 949a of this title and which does not require the presence of the members. (2) Except as provided in subsections (b), (c), and (d), any proceedings under paragraph (1) shall be conducted in the presence of the ac- cused, defense counsel, and trial counsel, and shall be made part of the record. (b) DELIBERATION OR VOTE OF MEMBERS.—When the members of a military commission under this chapter deliberate or vote, only the mem- bers may be present. (c) CLOSURE OF PROCEEDINGS.—(1) The military judge may close to the public all or part of the proceedings of a military commission under this chapter. (2) The military judge may close to the public all or a portion of the proceedings under para- graph (1) only upon making a specific finding that such closure is necessary to— (A) protect information the disclosure of which could reasonably be expected to cause damage to the national security, including in- telligence or law enforcement sources, meth- ods, or activities; or (B) ensure the physical safety of individuals. (3) A finding under paragraph (2) may be based upon a presentation, including a presentation ex parte or in camera, by either trial counsel or de- fense counsel. (d) EXCLUSION OF ACCUSED FROM CERTAIN PRO- CEEDINGS.—The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom— (1) to ensure the physical safety of individ- uals; or (2) to prevent disruption of the proceedings by the accused. (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2585.) Editorial Notes PRIOR PROVISIONS A prior section 949d, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2611, related to sessions of mili- tary commissions, prior to the general amendment of this chapter by Pub. L. 111–84. § 949e. Continuances The military judge in a military commission under this chapter may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.