10 U.S.C. § 948b — Military commissions generally

Page 852 TITLE 10—ARMED FORCES § 948b ‘‘(a) PRIOR CONVICTIONS.—The amendment made by section 1802 [generally amending this chapter] shall have no effect on the validity of any conviction pursu- ant to chapter 47A of title 10, United States Code (as such chapter was in effect on the day before the date of the enactment of this Act [Oct. 28, 2009]). ‘‘(b) COMPOSITION OF MILITARY COMMISSIONS.—Not- withstanding the amendment made by section 1802— ‘‘(1) any commission convened pursuant to chapter 47A of title 10, United States Code (as such chapter was in effect on the day before the date of the enact- ment of this Act), shall be deemed to have been con- vened pursuant to chapter 47A of title 10, United States Code (as amended by section 1802); ‘‘(2) any member of the Armed Forces detailed to serve on a commission pursuant to chapter 47A of title 10, United States Code (as in effect on the day before the date of the enactment of this Act), shall be deemed to have been detailed pursuant to chapter 47A of title 10, United States Code (as so amended); ‘‘(3) any military judge detailed to a commission pursuant to chapter 47A of title 10, United States Code (as in effect on the day before the date of the en- actment of this Act), shall be deemed to have been detailed pursuant to chapter 47A of title 10, United States Code (as so amended); ‘‘(4) any trial counsel or defense counsel detailed for a commission pursuant to chapter 47A of title 10, United States Code (as in effect on the day before the date of the enactment of this Act), shall be deemed to have been detailed pursuant to chapter 47A of title 10, United States Code (as so amended); ‘‘(5) any court reporters detailed to or employed by a commission pursuant to chapter 47A of title 10, United States Code (as in effect on the day before the date of the enactment of this Act), shall be deemed to have been detailed or employed pursuant to chapter 47A of title 10, United States Code (as so amended); and ‘‘(6) any appellate military judge or other duly ap- pointed appellate judge on the Court of Military Commission Review pursuant to chapter 47A of title 10, United States Code (as in effect on the day before the date of the enactment of this Act), shall be deemed to have been detailed or appointed to the United States Court of Military Commission Review pursuant to chapter 47A of title 10, United States Code (as so amended). ‘‘(c) CHARGES AND SPECIFICATIONS.—Notwithstanding the amendment made by section 1802— ‘‘(1) any charges or specifications sworn or referred pursuant to chapter 47A of title 10, United States Code (as such chapter was in effect on the day before the date of the enactment of this Act), shall be deemed to have been sworn or referred pursuant to chapter 47A of title 10, United States Code (as amend- ed by section 1802); and ‘‘(2) any charges or specifications described in para- graph (1) may be amended, without prejudice, as needed to properly allege jurisdiction under chapter 47A of title 10, United States Code (as so amended), and crimes triable under such chapter. ‘‘(d) PROCEDURES AND REQUIREMENTS.— ‘‘(1) IN GENERAL.—Except as provided in subsections (a) through (c) and subject to paragraph (2), any com- mission convened pursuant to chapter 47A of title 10, United States Code (as such chapter was in effect on the day before the date of the enactment of this Act), shall be conducted after the date of the enactment of this Act in accordance with the procedures and re- quirements of chapter 47A of title 10, United States Code (as amended by section 1802). ‘‘(2) TEMPORARY CONTINUATION OF PRIOR PROCEDURES AND REQUIREMENTS.—Any military commission de- scribed in paragraph (1) may be conducted in accord- ance with any procedures and requirements of chap- ter 47A of title 10, United States Code (as in effect on the day before the date of the enactment of this Act), that are not inconsistent with the provisions of chap- ter 47A of title 10, United States Code, (as so amend- ed), until the earlier of— ‘‘(A) the date of the submittal to Congress under section 1805 of the revised rules for military com- missions under chapter 47A of title 10, United States Code (as so amended); or ‘‘(B) the date that is 90 days after the date of the enactment of this Act.’’ SUBMITTAL TO CONGRESS OF REVISED RULES FOR MILITARY COMMISSIONS Pub. L. 111–84, div. A, title XVIII, § 1805, Oct. 28, 2009, 123 Stat. 2614, provided that: ‘‘(a) DEADLINE FOR SUBMITTAL.—Not later than 90 days after the date of the enactment of this Act [Oct. 28, 2009], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives the revised rules for military commissions prescribed by the Secretary for purposes of chapter 47A of title 10, United States Code (as amended by section 1802). ‘‘(b) TREATMENT OF REVISED RULES UNDER REQUIRE- MENT FOR NOTICE AND WAIT REGARDING MODIFICATION OF RULES.—The revised rules submitted to Congress under subsection (a) shall not be treated as a modification of the rules in effect for military commissions for pur- poses of section 949a(d) of title 10, United States Code (as so amended).’’ ANNUAL REPORTS TO CONGRESS ON TRIALS BY MILITARY COMMISSION Pub. L. 111–84, div. A, title XVIII, § 1806, Oct. 28, 2009, 123 Stat. 2614, provided that: ‘‘(a) ANNUAL REPORTS REQUIRED.—Not later than Jan- uary 31 of each year, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on any trials conducted by military commissions under chapter 47A of title 10, United States Code (as amended by section 1802), during the preceding year. ‘‘(b) FORM.—Each report under this section shall be submitted in unclassified form, but may include a clas- sified annex.’’ [For termination, effective Dec. 31, 2021, of annual re- porting provisions in section 1806 of Pub. L. 111–84, set out above, see section 1061 of Pub. L. 114–328, set out as a note under section 111 of this title.] CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH MILITARY COMMISSIONS Pub. L. 109–366, § 2, Oct. 17, 2006, 120 Stat. 2600, pro- vided that: ‘‘The authority to establish military com- missions under chapter 47A of title 10, United States Code, as added by section 3(a), may not be construed to alter or limit the authority of the President under the Constitution of the United States and laws of the United States to establish military commissions for areas declared to be under martial law or in occupied territories should circumstances so require.’’ § 948b. Military commissions generally (a) PURPOSE.—This chapter establishes proce- dures governing the use of military commissions to try alien unprivileged enemy belligerents for violations of the law of war and other offenses triable by military commission. (b) AUTHORITY FOR MILITARY COMMISSIONS UNDER THIS CHAPTER.—The President is author- ized to establish military commissions under this chapter for offenses triable by military commission as provided in this chapter. (c) CONSTRUCTION OF PROVISIONS.—The proce- dures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as 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