Monday, September 26, 2011
Sunday, September 25, 2011
EPIC - EPIC FOIA Cases
EPIC - EPIC FOIA Cases
President Obama Issues New Orders on FOIA: In his first 24 hours in Office, President Obama issued a series of Executive Orders. One of the Orders dealt with the Freedom of Information Act (FOIA) activity of federal government agencies. He stated that prior FOIA rules were governed by a "defensible argument" for not disclosing information to the public. The President said that, "Starting today, every agency and department should know that his administration stands on the side, not of those who seek to withhold information, but with those who seek to make it known." In other initiatives President Obama issued a suspension of legal proceedings against detainees being held in Guantanamo Bay. For more information, see EPIC's page onFormer Secrets. (Jan. 21, 2009)
- Attorney General Issues New FOIA Guidelines: The Attorney General today set out new Freedom of Information guidelines pursuant to President Obama's memorandum directing all executive branch departments and agencies to maintain a presumption of openness in releasing information requested from them. In the memorandum, the Attorney General strongly encouraged agencies to make discretionary disclosures of information to the fullest extent possible. Rescinding the FOIA Memorandum of October 12, 2001, the Attorney General stated that the Justice Department will defend a FOIA request only if the disclosure would harm an interest protected by a statutory exemption or its disclosure is prohibited by law. The memorandum also directs that each agency is fully accountable for its administration of FOIA and should be mindful of their obligation to work "in a spirit of cooperation." For more information, see EPIC's Open Government page. (Mar. 19, 2009)
- EPIC v. DOJ - EPIC Urges Court to Require Disclosure of Warrantless Wiretap Memos: EPIC, theACLU, and the National Security Archive asked a federal court in Washington, DC to order the immediate disclosure of government memos describing the legal basis for the warrantless wiretapping of American citizens by the Bush Administration. The court is currently reviewing the documents, prepared by the Office of Legal Counsel, as part of an EPIC Freedom of Information Act lawsuit. This week, the Attorney Generalreleased several related memos, which previously were secret. The new release follows President Obama's recent statement on government transparency. "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails," the President said. For more information, seeEPIC v. DOJ. (Mar. 6, 2009)
- EPIC, Freedom of Information Advocates Endorse President : EPIC joined Freedom of Information advocates from around the world in an Open Letter welcoming "President Obama's Initiative on Transparency."The organizations also supported the President's call for a "clear presumption in favor of disclosure of information." They called on "governments around the world to take similar action to promote transparency and respect for the right of access to information." For more information about open government, see EPIC's Open Government manual. (Jan. 29, 2009)
www.justice.gov/oip/foia_guide09/foia-final.pdf
www.justice.gov/oip/foia_guide09/foia-final.pdf
The Freedom of Information Act, 5 U.S.C. § 552
As Amended By
Public Law No. 110-175, 121 Stat. 2524
Below is the full text of the Freedom of Information Act in a form showing all
amendments to the statute made by the “Openness Promotes Effectiveness in our
National Government Act of 2007.” All newly enacted provisions are in boldface type.
§ 552. Public information; agency rules, opinions, orders, records, and proceedings
(a) Each agency shall make available to the public information as follows:
(1) Each agency shall separately state and currently publish in the Federal
Register for the guidance of the public—
(A) descriptions of its central and field organization and the established
places at which, the employees (and in the case of a uniformed service, the
members) from whom, and the methods whereby, the public may obtain
information, make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which its functions are
channeled and determined, including the nature and requirements of all
formal and informal procedures available;
(C) rules of procedure, descriptions of forms available or the places at
which forms may be obtained, and instructions as to the scope and
contents of all papers, reports, or examinations;
(D) substantive rules of general applicability adopted as authorized by
law, and statements of general policy or interpretations of general
applicability formulated and adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of the terms
thereof, a person may not in any manner be required to resort to, or be adversely
affected by, a matter required to be published in the Federal Register and not so
published. For the purpose of this paragraph, matter reasonably available to the
class of persons affected thereby is deemed published in the Federal Register
when incorporated by reference therein with the approval of the Director of the
Federal Register.
(2) Each agency, in accordance with published rules, shall make available for
public inspection and copying— (A) final opinions, including concurring and dissenting opinions, as well
as orders, made in the adjudication of cases;
(B) those statements of policy and interpretations which have been
adopted by the agency and are not published in the Federal Register;
(C) administrative staff manuals and instructions to staff that affect a
member of the public;
(D) copies of all records, regardless of form or format, which have been
released to any person under paragraph (3) and which, because of the
nature of their subject matter, the agency determines have become or are
likely to become the subject of subsequent requests for substantially the
same records; and
(E) a general index of the records referred to under subparagraph (D);
unless the materials are promptly published and copies offered for sale. For
records created on or after November 1, 1996, within one year after such date,
each agency shall make such records available, including by computer
telecommunications or, if computer telecommunications means have not been
established by the agency, by other electronic means. To the extent required to
prevent a clearly unwarranted invasion of personal privacy, an agency may delete
identifying details when it makes available or publishes an opinion, statement of
policy, interpretation, staff manual, instruction, or copies of records referred to in
subparagraph (D). However, in each case the justification for the deletion shall be
explained fully in writing, and the extent of such deletion shall be indicated on the
portion of the record which is made available or published, unless including that
indication would harm an interest protected by the exemption in subsection (b)
under which the deletion is made. If technically feasible, the extent of the deletion
shall be indicated at the place in the record where the deletion was made. Each
agency shall also maintain and make available for public inspection and copying
current indexes providing identifying information for the public as to any matter
issued, adopted, or promulgated after July 4, 1967, and required by this paragraph
to be made available or published. Each agency shall promptly publish, quarterly
or more frequently, and distribute (by sale or otherwise) copies of each index or
supplements thereto unless it determines by order published in the Federal
Register that the publication would be unnecessary and impracticable, in which
case the agency shall nonetheless provide copies of an index on request at a cost
not to exceed the direct cost of duplication. Each agency shall make the index
referred to in subparagraph (E) available by computer telecommunications by
December 31, 1999. A final order, opinion, statement of policy, interpretation, or
staff manual or instruction that affects a member of the public may be relied on,
used, or cited as precedent by an agency against a party other than an agency only
if— (i) it has been indexed and either made available or published as
provided by this paragraph; or
(ii) the party has actual and timely notice of the terms thereof.
(3)(A) Except with respect to the records made available under paragraphs (1) and
(2) of this subsection, and except as provided in subparagraph (E), each agency,
upon any request for records which (i) reasonably describes such records and (ii)
is made in accordance with published rules stating the time, place, fees (if any),
and procedures to be followed, shall make the records promptly available to any
person.
(B) In making any record available to a person under this paragraph, an
agency shall provide the record in any form or format requested by the
person if the record is readily reproducible by the agency in that form or
format. Each agency shall make reasonable efforts to maintain its records
in forms or formats that are reproducible for purposes of this section.
(C) In responding under this paragraph to a request for records, an agency
shall make reasonable efforts to search for the records in electronic form
or format, except when such efforts would significantly interfere with the
operation of the agency's automated information system.
(D) For purposes of this paragraph, the term "search" means to review,
manually or by automated means, agency records for the purpose of
locating those records which are responsive to a request.
(E) An agency, or part of an agency, that is an element of the intelligence
community (as that term is defined in section 3(4) of the National Security
Act of 1947 (50 U.S.C. 401a(4))) shall not make any record available
under this paragraph to—
(i) any government entity, other than a State, territory,
commonwealth, or district of the United States, or any subdivision
thereof; or
(ii) a representative of a government entity described in clause (i).
(4)(A)(i) In order to carry out the provisions of this section, each agency shall
promulgate regulations, pursuant to notice and receipt of public comment,
specifying the schedule of fees applicable to the processing of requests under this
section and establishing procedures and guidelines for determining when such
fees should be waived or reduced. Such schedule shall conform to the guidelines
which shall be promulgated, pursuant to notice and receipt of public comment, by
the Director of the Office of Management and Budget and which shall provide for
a uniform schedule of fees for all agencies. (ii) Such agency regulations shall provide that—
(I) fees shall be limited to reasonable standard charges for
document search, duplication, and review, when records are
requested for commercial use;
(II) fees shall be limited to reasonable standard charges for
document duplication when records are not sought for
commercial use and the request is made by an educational
or noncommercial scientific institution, whose purpose is
scholarly or scientific research; or a representative of the
news media; and
(III) for any request not described in (I) or (II), fees shall be
limited to reasonable standard charges for document search
and duplication.
In this clause, the term ‘a representative of the news media’
means any person or entity that gathers information of
potential interest to a segment of the public, uses its editorial
skills to turn the raw materials into a distinct work, and
distributes that work to an audience. In this clause, the term
‘news’ means information that is about current events or that
would be of current interest to the public. Examples of newsmedia entities are television or radio stations broadcasting to
the public at large and publishers of periodicals (but only if
such entities qualify as disseminators of ‘news’) who make
their products available for purchase by or subscription by or
free distribution to the general public. These examples are not
all-inclusive. Moreover, as methods of news delivery evolve (for
example, the adoption of the electronic dissemination of
newspapers through telecommunications services), such
alternative media shall be considered to be news-media
entities. A freelance journalist shall be regarded as working for
a news-media entity if the journalist can demonstrate a solid
basis for expecting publication through that entity, whether or
not the journalist is actually employed by the entity. A
publication contract would present a solid basis for such an
expectation; the Government may also consider the past
publication record of the requester in making such a
determination.
(iii) Documents shall be furnished without any charge or at a
charge reduced below the fees established under clause (ii) if
disclosure of the information is in the public interest because it is
likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in
the commercial interest of the requester.
(iv) Fee schedules shall provide for the recovery of only the direct
costs of search, duplication, or review. Review costs shall include
only the direct costs incurred during the initial examination of a
document for the purposes of determining whether the documents
must be disclosed under this section and for the purposes of
withholding any portions exempt from disclosure under this
section. Review costs may not include any costs incurred in
resolving issues of law or policy that may be raised in the course of
processing a request under this section. No fee may be charged by
any agency under this section—
(I) if the costs of routine collection and processing of the
fee are likely to equal or exceed the amount of the fee; or
(II) for any request described in clause (ii)(II) or (III) of
this subparagraph for the first two hours of search time or
for the first one hundred pages of duplication.
(v) No agency may require advance payment of any fee unless the
requester has previously failed to pay fees in a timely fashion, or
the agency has determined that the fee will exceed $250.
(vi) Nothing in this subparagraph shall supersede fees chargeable
under a statute specifically providing for setting the level of fees
for particular types of records.
(vii) In any action by a requester regarding the waiver of fees
under this section, the court shall determine the matter de novo:
Provided, That the court's review of the matter shall be limited to
the record before the agency.
(viii) An agency shall not assess search fees (or in the case of a
requester described under clause (ii)(II), duplication fees)
under this subparagraph if the agency fails to comply with any
time limit under paragraph (6), if no unusual or exceptional
circumstances (as those terms are defined for purposes of
paragraphs (6)(B) and (C), respectively) apply to the
processing of the request.
(B) On complaint, the district court of the United States in the district in
which the complainant resides, or has his principal place of business, or in
which the agency records are situated, or in the District of Columbia, has jurisdiction to enjoin the agency from withholding agency records and to
order the production of any agency records improperly withheld from the
complainant. In such a case the court shall determine the matter de novo,
and may examine the contents of such agency records in camera to
determine whether such records or any part thereof shall be withheld
under any of the exemptions set forth in subsection (b) of this section, and
the burden is on the agency to sustain its action. In addition to any other
matters to which a court accords substantial weight, a court shall accord
substantial weight to an affidavit of an agency concerning the agency's
determination as to technical feasibility under paragraph (2)(C) and
subsection (b) and reproducibility under paragraph (3)(B).
(C) Notwithstanding any other provision of law, the defendant shall serve
an answer or otherwise plead to any complaint made under this subsection
within thirty days after service upon the defendant of the pleading in
which such complaint is made, unless the court otherwise directs for good
cause is shown.
[(D) Repealed. Pub. L. 98-620, title IV, Sec. 402(2), Nov. 8, 1984, 98
Stat. 3357.]
(E)(i) The court may assess against the United States reasonable attorney
fees and other litigation costs reasonably incurred in any case under this
section in which the complainant has substantially prevailed.
(ii) For purposes of this subparagraph, a complainant has
substantially prevailed if the complainant has obtained relief
through either—
(I) a judicial order, or an enforceable written agreement
or consent decree; or
(II) a voluntary or unilateral change in position by the
agency, if the complainant’s claim is not insubstantial.
(F)(i) Whenever the court orders the production of any agency records
improperly withheld from the complainant and assesses against the United
States reasonable attorney fees and other litigation costs, and the court
additionally issues a written finding that the circumstances surrounding
the withholding raise questions whether agency personnel acted arbitrarily
or capriciously with respect to the withholding, the Special Counsel shall
promptly initiate a proceeding to determine whether disciplinary action is
warranted against the officer or employee who was primarily responsible
for the withholding. The Special Counsel, after investigation and
consideration of the evidence submitted, shall submit his findings and
recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer
or employee or his representative. The administrative authority shall take
the corrective action that the Special Counsel recommends.
(ii) The Attorney General shall—
(I) notify the Special Counsel of each civil action
described under the first sentence of clause (i); and
(II) annually submit a report to Congress on the
number of such civil actions in the preceding year.
(iii) The Special Counsel shall annually submit a report to
Congress on the actions taken by the Special Counsel under
clause (i).
(G) In the event of noncompliance with the order of the court, the district
court may punish for contempt the responsible employee, and in the case
of a uniformed service, the responsible member.
(5) Each agency having more than one member shall maintain and make available
for public inspection a record of the final votes of each member in every agency
proceeding.
(6)(A) Each agency, upon any request for records made under paragraph (1), (2),
or (3) of this subsection, shall—
(i) determine within 20 days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of any such request whether
to comply with such request and shall immediately notify the
person making such request of such determination and the reasons
therefor, and of the right of such person to appeal to the head of the
agency any adverse determination; and
(ii) make a determination with respect to any appeal within twenty
days (excepting Saturdays, Sundays, and legal public holidays)
after the receipt of such appeal. If on appeal the denial of the
request for records is in whole or in part upheld, the agency shall
notify the person making such request of the provisions for judicial
review of that determination under paragraph (4) of this
subsection.
The 20-day period under clause (i) shall commence on the date
on which the request is first received by the appropriate
component of the agency, but in any event not later than ten
days after the request is first received by any component of the agency that is designated in the agency’s regulations under this
section to receive requests under this section. The 20-day
period shall not be tolled by the agency except—
(I) that the agency may make one request to the
requester for information and toll the 20-day period
while it is awaiting such information that it has
reasonably requested from the requester under this
section; or
(II) if necessary to clarify with the requester issues
regarding fee assessment. In either case, the agency’s
receipt of the requester’s response to the agency’s
request for information or clarification ends the tolling
period.
(B)(i) In unusual circumstances as specified in this subparagraph, the time
limits prescribed in either clause (i) or clause (ii) of subparagraph (A) may
be extended by written notice to the person making such request setting
forth the unusual circumstances for such extension and the date on which a
determination is expected to be dispatched. No such notice shall specify a
date that would result in an extension for more than ten working days,
except as provided in clause (ii) of this subparagraph.
(ii) With respect to a request for which a written notice under
clause (i) extends the time limits prescribed under clause (i) of
subparagraph (A), the agency shall notify the person making the
request if the request cannot be processed within the time limit
specified in that clause and shall provide the person an opportunity
to limit the scope of the request so that it may be processed within
that time limit or an opportunity to arrange with the agency an
alternative time frame for processing the request or a modified
request. To aid the requester, each agency shall make available
its FOIA Public Liaison, who shall assist in the resolution of
any disputes between the requester and the agency. Refusal by
the person to reasonably modify the request or arrange such an
alternative time frame shall be considered as a factor in
determining whether exceptional circumstances exist for purposes
of subparagraph (C).
(iii) As used in this subparagraph, "unusual circumstances" means,
but only to the extent reasonably necessary to the proper
processing of the particular requests— (I) the need to search for and collect the requested records
from field facilities or other establishments that are separate
from the office processing the request;
(II) the need to search for, collect, and appropriately
examine a voluminous amount of separate and distinct
records which are demanded in a single request; or
(III) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a
substantial interest in the determination of the request or
among two or more components of the agency having
substantial subject-matter interest therein.
(iv) Each agency may promulgate regulations, pursuant to notice
and receipt of public comment, providing for the aggregation of
certain requests by the same requestor, or by a group of requestors
acting in concert, if the agency reasonably believes that such
requests actually constitute a single request, which would
otherwise satisfy the unusual circumstances specified in this
subparagraph, and the requests involve clearly related matters.
Multiple requests involving unrelated matters shall not be
aggregated.
(C)(i) Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection shall be deemed to have
exhausted his administrative remedies with respect to such request if the
agency fails to comply with the applicable time limit provisions of this
paragraph. If the Government can show exceptional circumstances exist
and that the agency is exercising due diligence in responding to the
request, the court may retain jurisdiction and allow the agency additional
time to complete its review of the records. Upon any determination by an
agency to comply with a request for records, the records shall be made
promptly available to such person making such request. Any notification
of denial of any request for records under this subsection shall set forth the
names and titles or positions of each person responsible for the denial of
such request.
(ii) For purposes of this subparagraph, the term "exceptional
circumstances" does not include a delay that results from a
predictable agency workload of requests under this section, unless
the agency demonstrates reasonable progress in reducing its
backlog of pending requests.
(iii) Refusal by a person to reasonably modify the scope of a
request or arrange an alternative time frame for processing a request (or a modified request) under clause (ii) after being g
(C) the number of requests for records pending before the agency as of
September 30 of the preceding year, and the median and average number
of days that such requests had been pending before the agency as of that
date;
(D) the number of requests for records received by the agency and the
number of requests which the agency processed;
(E) the median number of days taken by the agency to process different
types of requests, based on the date on which the requests were
received by the agency;
(F) the average number of days for the agency to respond to a request
beginning on the date on which the request was received by the
agency, the median number of days for the agency to respond to such
requests, and the range in number of days for the agency to respond
to such requests;
(G) based on the number of business days that have elapsed since each
request was originally received by the agency—
(i) the number of requests for records to which the agency has
responded with a determination within a period up to and
including 20 days, and in 20-day increments up to and
including 200 days;
(e)(1) On or before February 1 of each year, each agency shall submit to the Attorney
General of the United States a report which shall cover the preceding fiscal year and
which shall include—
(A) the number of determinations made by the agency not to comply with
requests for records made to such agency under subsection (a) and the
reasons for each such determination;
(B)(i) the number of appeals made by persons under subsection (a)(6), the
result of such appeals, and the reason for the action upon each appeal that
results in a denial of information; and
(ii) a complete list of all statutes that the agency relies upon to
authorize the agency to withhold information under subsection
(b)(3), the number of occasions on which each statute was
relied upon, a description of whether a court has upheld the
decision of the agency to withhold information under each such
statute, and a concise description of the scope of any information
withheld;
(C) the number of requests for records pending before the agency as of
September 30 of the preceding year, and the median and average number
of days that such requests had been pending before the agency as of that
date;
(D) the number of requests for records received by the agency and the
number of requests which the agency processed;
(E) the median number of days taken by the agency to process different
types of requests, based on the date on which the requests were
received by the agency;
(F) the average number of day
(ii) the number of requests for records to which the agency has
responded with a determination within a period greater than
200 days and less than 301 daays;
(iii) the number of requests for records to which the agency has
responded with a determination within a period greater than
300 days and less than 401 days; and
(iv) the number of requests for records to which the agency has
responded with a determination within a period greater than
400 days;
(H) the average number of days for the agency to provide the granted
information beginning on the date on which the request was originally
filed, the median number of days for the agency to provide the
granted information, and the range in number of days for the agency
to provide the granted information;
(I) the median and average number of days for the agency to respond
to administrative appeals based on the date on which the appeals
originally were received by the agency, the highest number of business
days taken by the agency to respond to an administrative appeal, and
the lowest number of business days taken by the agency to respond to
an administrative appeal;
(J) data on the 10 active requests with the earliest filing dates pending
at each agency, including the amount of time that has elapsed since
each request was originally received by the agency;
(K) data on the 10 active administrative appeals with the earliest filing
dates pending before the agency as of September 30 of the preceding
year, including the number of business days that have elapsed since
the requests were originally received by the agency;
(L) the number of expedited review requests that are granted and
denied, the average and median number of days for adjudicating
expedited review requests, and the number adjudicated within the
required 10 days;
(M) the number of fee waiver requests that are granted and denied,
and the average and median number of days for adjudicating fee
waiver determinations;
(F) (N) the total amount of fees collected by the agency for processing
requests; and
(G) (O) the number of full-time staff of the agency devoted to processing
requests for records under this section, and the total amount expended by
the agency for processing such requests.
(2) Information in each report submitted under paragraph (1) shall be
expressed in terms of each principal component of the agency and for the
agency overall.
(2) (3) Each agency shall make each such report available to the public including
by computer telecommunications, or if computer telecommunications means have
not been established by the agency, by other electronic means. In addition, each
agency shall make the raw statistical data used in its reports available
electronically to the public upon request.
(3) (4 ) The Attorney General of the United States shall make each report which
has been made available by electronic means available at a single electronic
access point. The Attorney General of the United States shall notify the Chairman
and ranking minority member of the Committee on Government Reform and
Oversight of the House of Representatives and the Chairman and ranking
minority member of the Committees on Governmental Affairs and the Judiciary
of the Senate, no later than April 1 of the year in which each such report is issued,
that such reports are available by electronic means.
(4) (5) The Attorney General of the United States, in consultation with the
Director of the Office of Management and Budget, shall develop reporting and
performance guidelines in connection with reports required by this subsection by
October 1, 1997, and may establish additional requirements for such reports as the
Attorney General determines may be useful.
(5) (6) The Attorney General of the United States shall submit an annual report on
or before April 1 of each calendar year which shall include for the prior calendar
year a listing of the number of cases arising under this section, the exemption
involved in each case, the disposition of such case, and the cost, fees, and
penalties assessed under subparagraphs (E), (F), and (G) of subsection (a)(4).
Such report shall also include a description of the efforts undertaken by the
Department of Justice to encourage agency compliance with this section.
(f) For purposes of this section, the term—
(1) "agency" as defined in section 551(1) of this title includes any executive
department, military department, Government corporation, Government
controlled corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or any independent
regulatory agency; and
nd (2) “record and any other term used in this section in reference to information
includes any information that would be an agency record subject to the
requirements of this section when maintained by an agency in any format,
including an electronic format.
(2) ‘record’ and any other term used in this section in reference to
information includes—
(A) any information that would be an agency record subject to the
requirements of this section when maintained by an agency in any
format, including an electronic format; and
(B) any information described under subparagraph (A) that is
maintained for an agency by an entity under Government contract,
for the purposes of records management.
(g) The head of each agency shall prepare and make publicly available upon request,
reference material or a guide for requesting records or information from the agency,
subject to the exemptions in subsection (b), including—
(1) an index of all major information systems of the agency;
(2) a description of major information and record locator systems maintained by
the agency; and
(3) a handbook for obtaining various types and categories of public information
from the agency pursuant to chapter 35 of title 44, and under this section.
(h)(1) There is established the Office of Government Information Services within
the National Archives and Records Administration.
(2) The Office of Government Information Services shall—
(A) review policies and procedures of administrative agencies under
this section;
(B) review compliance with this section by administrative agencies;
and
(C) recommend policy changes to Congress and the President to
improve the administration of this section.
(3) The Office of Government Information Services shall offer mediation
services to resolve disputes between persons making requests under this
section and administrative agencies as a non-exclusive alternative to
litigation and, at the discretion of the Office, may issue advisory opinions if
mediation has not resolved the dispute.
(i) The Government Accountability Office shall conduct audits of administrative
agencies on the implementation of this section and issue reports detailing the results
of such audits.
(j) Each agency shall designate a Chief FOIA Officer who shall be a senior official of
such agency (at the Assistant Secretary or equivalent level).
(k) The Chief FOIA Officer of each agency shall, subject to the authority of the head
of the agency—
(1) have agency-wide responsibility for efficient and appropriate compliance
with this section;
(2) monitor implementation of this section throughout the agency and keep
the head of the agency, the chief legal officer of the agency, and the Attorney
General appropriately informed of the agency’s performance in
implementing this section;
(3) recommend to the head of the agency such adjustments to agency
practices, policies, personnel, and funding as may be necessary to improve its
implementation of this section;
(4) review and report to the Attorney General, through the head of the
agency, at such times and in such formats as the Attorney General may
direct, on the agency’s performance in implementing this section;
(5) facilitate public understanding of the purposes of the statutory
exemptions of this section by including concise descriptions of the exemptions
in both the agency’s handbook issued under subsection (g), and the agency’s
annual report on this section, and by providing an overview, where
appropriate, of certain general categories of agency records to which those
exemptions apply; and
(6) designate one or more FOIA Public Liaisons.
(l) FOIA Public Liaisons shall report to the agency Chief FOIA Officer and shall
serve as supervisory officials to whom a requester under this section can raise
concerns about the service the requester has received from the FOIA Requester
Center, following an initial response from the FOIA Requester Center Staff. FOIA
Public Liaisons shall be responsible for assisting in reducing delays, increasing
transparency and understanding of the status of requests, and assisting in the
resolution of disputes
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.org/justice/finalrule.htm
/justice/finalrule.htm
Department of Defense
Military Commission Order No. 1
March 21, 2002
SUBJECT: Procedures for Trials by Military Commissions of Certain Non-United
States Citizens in the War Against Terrorism
United States Constitution, Article II, section 2 References: (a)
(b) Military Order of November 13, 2001, "Detention, Treatment, and Trial of
Certain Non-Citizens in the War Against Terrorism," 66 F.R. 57833 (Nov.
16, 2001) ("President's Military Order")
DoD 5200.2-R, "Personnel Security Program," current edition (c)
(d) Executive Order 12958, "Classified National Security Information" (April
17, 1995, as amended, or any successor Executive Order)
(e) Section 603 of title 10, United States Code
(f) DoD Directive 5025.1, "DoD Directives System," current edition
1. PURPOSE
This Order implements policy, assigns responsibilities, and prescribes procedures under
references (a) and (b) for trials before military commissions of individuals subject to the
President's Military Order. These procedures shall be implemented and construed so as to
ensure that any such individual receives a full and fair trial before a military commission, as
required by the President's Military Order. Unless otherwise directed by the Secretary of
Defense, and except for supplemental procedures established pursuant to the President's Military
Order or this Order, the procedures prescribed herein and no others shall govern such trials.
2. ESTABLISHMENT OF MILITARY COMMISSIONS
In accordance with the President's Military Order, the Secretary of Defense or a designee
("Appointing Authority") may issue orders from time to time appointing one or more military
DoD MCO No. 1, March 21, 2002
commissions to try individuals subject to the President's Military Order and appointing any other
personnel necessary to facilitate such trials.
3. JURISDICTION
A. Over Persons
A military commission appointed under this Order ("Commission") shall have jurisdiction over
only an individual or individuals ("the Accused") (1) subject to the President's Military Order
and (2) alleged to have committed an offense in a charge that has been referred to the
Commission by the Appointing Authority.
B. Over Offenses
Commissions established hereunder shall have jurisdiction over violations of the laws of war and
all other offenses triable by military commission.
C. Maintaining Integrity of Commission Proceedings
The Commission may exercise jurisdiction over participants in its proceedings as necessary to
preserve the integrity and order of the proceedings.
4. COMMISSION PERSONNEL
A. Members
(1) Appointment
The Appointing Authority shall appoint the members and the alternate member or members of
each Commission. The alternate member or members shall attend all sessions of the
Commission, but the absence of an alternate member shall not preclude the Commission from
conducting proceedings. In case of incapacity, resignation, or removal of any member, an
alternate member shall take the place of that member. Any vacancy among the members or
alternate members occurring after a trial has begun may be filled by the Appointing Authority,
but the substance of all prior proceedings and evidence taken in that case shall be made known to
that new member or alternate member before the trial proceeds.
(2) Number of Members
Each Commission shall consist of at least three but no more than seven members, the number
being determined by the Appointing Authority. For each such Commission, there shall also be
one or two alternate members, the number being determined by the Appointing Authority.
DoD MCO No. 1, March 21, 2002
(3) Qualifications
Each member and alternate member shall be a commissioned officer of the United States armed
forces ("Military Officer"), including without limitation reserve personnel on active duty,
National Guard personnel on active duty in Federal service, and retired personnel recalled to
active duty. The Appointing Authority shall appoint members and alternate members
determined to be competent to perform the duties involved. The Appointing Authority may
remove members and alternate members for good cause.
(4) Presiding Officer
From among the members of each Commission, the Appointing Authority shall designate a
Presiding Officer to preside over the proceedings of that Commission. The Presiding Officer
shall be a Military Officer who is a judge advocate of any United States armed force.
(5) Duties of the Presiding Officer
(a) The Presiding Officer shall admit or exclude evidence at trial in
accordance with Section 6(D). The Presiding Officer shall have authority to close
proceedings or portions of proceedings in accordance with Section 6(B)(3) and
for any other reason necessary for the conduct of a full and fair trial.
(b) The Presiding Officer shall ensure that the discipline, dignity, and
decorum of the proceedings are maintained, shall exercise control over the
proceedings to ensure proper implementation of the President's Military Order
and this Order, and shall have authority to act upon any contempt or breach of
Commission rules and procedures. Any attorney authorized to appear before a
Commission who is thereafter found not to satisfy the requirements for eligibility
or who fails to comply with laws, rules, regulations, or other orders applicable to
the Commission proceedings or any other individual who violates such laws,
rules, regulations, or orders may be disciplined as the Presiding Officer deems
appropriate, including but not limited to revocation of eligibility to appear before
that Commission. The Appointing Authority may further revoke that attorney's
or any other person's eligibility to appear before any other Commission convened
under this Order.
(c) The Presiding Officer shall ensure the expeditious conduct of the trial.
In no circumstance shall accommodation of counsel be allowed to delay
proceedings unreasonably.
(d) The Presiding Officer shall certify all interlocutory questions, the
disposition of which would effect a termination of proceedings with respect to a
charge, for decision by the Appointing Authority. The Presiding Officer may
certify other interlocutory questions to the Appointing Authority as the Presiding
Officer deems appropriate.
DoD MCO No. 1, March 21, 2002
B. Prosecution
(1) Office of the Chief Prosecutor
The Chief Prosecutor shall be a judge advocate of any United States armed force, shall supervise
the overall prosecution efforts under the President's Military Order, and shall ensure proper
management of personnel and resources.
(2) Prosecutors and Assistant Prosecutors
Consistent with any supplementary regulations or instructions issued under Section 7(A), the
Chief Prosecutor shall detail a Prosecutor and, as appropriate, one or more Assistant Prosecutors
to prepare charges and conduct the prosecution for each case before a Commission
("Prosecution"). Prosecutors and Assistant Prosecutors shall be (a) Military Officers who are
judge advocates of any United States armed force, or (b) special trial counsel of the Department
of Justice who may be made available by the Attorney General of the United States. The duties
of the Prosecution are:
(a) To prepare charges for approval and referral by the Appointing
Authority;
(b) To conduct the prosecution before the Commission of all cases
referred for trial; and
(c) To represent the interests of the Prosecution in any review process.
C. Defense
(1) Office of the Chief Defense Counsel
The Chief Defense Counsel shall be a judge advocate of any United States armed force, shall
supervise the overall defense efforts under the President's Military Order, shall ensure proper
management of personnel and resources, shall preclude conflicts of interest, and shall facilitate
proper representation of all Accused.
(2) Detailed Defense Counsel.
Consistent with any supplementary regulations or instructions issued under Section 7(A), the
Chief Defense Counsel shall detail one or more Military Officers who are judge advocates of any
United States armed force to conduct the defense for each case before a Commission ("Detailed
Defense Counsel"). The duties of the Detailed Defense Counsel are:
(a) To defend the Accused zealously within the bounds of the law without
regard to personal opinion as to the guilt of the Accused; and
(b) To represent the interests of the Accused in any review process as
provided by this Order.
DoD MCO No. 1, March 21, 2002
(3) Choice of Counsel
(a) The Accused may select a Military Officer who is a judge advocate of
any United States armed force to replace the Accused's Detailed Defense
Counsel, provided that Military Officer has been determined to be
available in accordance with any applicable supplementary regulations or
instructions issued under Section 7(A). After such selection of a new
Detailed Defense Counsel, the original Detailed Defense Counsel will be
relieved of all duties with respect to that case. If requested by the
Accused, however, the Appointing Authority may allow the original
Detailed Defense Counsel to continue to assist in representation of the
Accused as another Detailed Defense Counsel.
(b) The Accused may also retain the services of a civilian attorney of the
Accused's own choosing and at no expense to the United States
Government ("Civilian Defense Counsel"), provided that attorney: (i) is a
United States citizen; (ii) is admitted to the practice of law in a State,
district, territory, or possession of the United States, or before a Federal
court; (iii) has not been the subject of any sanction or disciplinary action
by any court, bar, or other competent governmental authority for relevant
misconduct; (iv) has been determined to be eligible for access to
information classified at the level SECRET or higher under the authority
of and in accordance with the procedures prescribed in reference (c); and
(v) has signed a written agreement to comply with all applicable
regulations or instructions for counsel, including any rules of court for
conduct during the course of proceedings. Civilian attorneys may be prequalified
as members of the pool of available attorneys if, at the time of
application, they meet the relevant criteria, or they may be qualified on an
ad hoc basis after being requested by an Accused. Representation by
Civilian Defense Counsel will not relieve Detailed Defense Counsel of the
duties specified in Section 4(C)(2). The qualification of a Civilian
Defense Counsel does not guarantee that person's presence at closed
Commission proceedings or that person's access to any information
protected under Section 6(D)(5).
(4) Continuity of Representation
The Accused must be represented at all relevant times by Detailed Defense Counsel. Detailed
Defense Counsel and Civilian Defense Counsel shall be herein referred to collectively as
"Defense Counsel." The Accused and Defense Counsel shall be herein referred to collectively as
"the Defense."
D. Other Personnel
Other personnel, such as court reporters, interpreters, security personnel, bailiffs, and clerks may
be detailed or employed by the Appointing Authority, as necessary.
DoD MCO No. 1, March 21, 2002
5. PROCEDURES ACCORDED THE ACCUSED
The following procedures shall apply with respect to the Accused:
A. The Prosecution shall furnish to the Accused, sufficiently in advance of trial to
prepare a defense, a copy of the charges in English and, if appropriate, in another
language that the Accused understands.
B. The Accused shall be presumed innocent until proven guilty.
C. A Commission member shall vote for a finding of Guilty as to an offense if and only
if that member is convinced beyond a reasonable doubt, based on the evidence admitted
at trial, that the Accused is guilty of the offense.
D. At least one Detailed Defense Counsel shall be made available to the Accused
sufficiently in advance of trial to prepare a defense and until any findings and sentence
become final in accordance with Section 6(H)(2).
E. The Prosecution shall provide the Defense with access to evidence the Prosecution
intends to introduce at trial and with access to evidence known to the Prosecution that
tends to exculpate the Accused. Such access shall be consistent with Section 6(D)(5) and
subject to Section 9.
F. The Accused shall not be required to testify during trial. A Commission shall draw
no adverse inference from an Accused's decision not to testify. This subsection shall not
preclude admission of evidence of prior statements or conduct of the Accused.
G. If the Accused so elects, the Accused may testify at trial on the Accused's own behalf
and shall then be subject to cross-examination.
H. The Accused may obtain witnesses and documents for the Accused's defense, to the
extent necessary and reasonably available as determined by the Presiding Officer. Such
access shall be consistent with the requirements of Section 6(D)(5) and subject to Section
9. The Appointing Authority shall order that such investigative or other resources be
made available to the Defense as the Appointing Authority deems necessary for a full and
fair trial.
I. The Accused may have Defense Counsel present evidence at trial in the Accused's
defense and cross-examine each witness presented by the Prosecution who appears before
the Commission.
J. The Prosecution shall ensure that the substance of the charges, the proceedings, and
any documentary evidence are provided in English and, if appropriate, in another
language that the Accused understands. The Appointing Authority may appoint one or
more interpreters to assist the Defense, as necessary.
K. The Accused may be present at every stage of the trial before the Commission,
consistent with Section 6(B)(3), unless the Accused engages in disruptive conduct that
DoD MCO No. 1, March 21, 2002
justifies exclusion by the Presiding Officer. Detailed Defense Counsel may not be
excluded from any trial proceeding or portion thereof.
L. Except by order of the Commission for good cause shown, the Prosecution shall
provide the Defense with access before sentencing proceedings to evidence the
Prosecution intends to present in such proceedings. Such access shall be consistent with
Section 6(D)(5) and subject to Section 9.
M. The Accused may make a statement during sentencing proceedings.
N. The Accused may have Defense Counsel submit evidence to the Commission during
sentencing proceedings.
O. The Accused shall be afforded a trial open to the public (except proceedings closed
by the Presiding Officer), consistent with Section 6(B).
P. The Accused shall not again be tried by any Commission for a charge once a
Commission's finding on that charge becomes final in accordance with Section 6(H)(2).
6. CONDUCT OF THE TRIAL
A. Pretrial Procedures
(1) Preparation of the Charges
The Prosecution shall prepare charges for approval by the Appointing Authority, as provided in
Section 4(B)(2)(a).
(2) Referral to the Commission
The Appointing Authority may approve and refer for trial any charge against an individual or
individuals within the jurisdiction of a Commission in accordance with Section 3(A) and alleging
an offense within the jurisdiction of a Commission in accordance with Section 3(B).
(3) Notification of the Accused
The Prosecution shall provide copies of the charges approved by the Appointing Authority to the
Accused and Defense Counsel. The Prosecution also shall submit the charges approved by the
Appointing Authority to the Presiding Officer of the Commission to which they were referred.
(4) Plea Agreements
The Accused, through Defense Counsel, and the Prosecution may submit for approval to the
Appointing Authority a plea agreement mandating a sentence limitation or any other provision in
exchange for an agreement to plead guilty, or any other consideration. Any agreement to plead
guilty must include a written stipulation of fact, signed by the Accused, that confirms the guilt of
DoD MCO No. 1, March 21, 2002
the Accused and the voluntary and informed nature of the plea of guilty. If the Appointing
Authority approves the plea agreement, the Commission will, after determining the voluntary
and informed nature of the plea agreement, admit the plea agreement and stipulation into
evidence and be bound to adjudge findings and a sentence pursuant to that plea agreement.
(5) Issuance and Service of Process; Obtaining Evidence
The Commission shall have power to:
(a) Summon witnesses to attend trial and testify;
(b) Administer oaths or affirmations to witnesses and other persons and to
question witnesses;
(c) Require the production of documents and other evidentiary material;
and
(d) Designate special commissioners to take evidence.
The Presiding Officer shall exercise these powers on behalf of the Commission at the Presiding
Officer's own initiative, or at the request of the Prosecution or the Defense, as necessary to
ensure a full and fair trial in accordance with the President's Military Order and this Order. The
Commission shall issue its process in the name of the Department of Defense over the signature
of the Presiding Officer. Such process shall be served as directed by the Presiding Officer in a
manner calculated to give reasonable notice to persons required to take action in accordance with
that process.
B. Duties of the Commission During Trial
The Commission shall:
(1) Provide a full and fair trial.
(2) Proceed impartially and expeditiously, strictly confining the proceedings to a
full and fair trial of the charges, excluding irrelevant evidence, and preventing any
unnecessary interference or delay.
(3) Hold open proceedings except where otherwise decided by the Appointing
Authority or the Presiding Officer in accordance with the President's Military
Order and this Order. Grounds for closure include the protection of information
classified or classifiable under reference (d); information protected by law or rule
from unauthorized disclosure; the physical safety of participants in Commission
proceedings, including prospective witnesses; intelligence and law enforcement
sources, methods, or activities; and other national security interests. The
Presiding Officer may decide to close all or part of a proceeding on the Presiding
Officer's own initiative or based upon a presentation, including an ex parte, in
camera presentation by either the Prosecution or the Defense. A decision to close
a proceeding or portion thereof may include a decision to exclude the Accused,
Civilian Defense Counsel, or any other person, but Detailed Defense Counsel may
not be excluded from any trial proceeding or portion thereof. Except with the
prior authorization of the Presiding Officer and subject to Section 9, Defense
DoD MCO No. 1, March 21, 2002
Counsel may not disclose any information presented during a closed session to
individuals excluded from such proceeding or part thereof. Open proceedings
may include, at the discretion of the Appointing Authority, attendance by the
public and accredited press, and public release of transcripts at the appropriate
time. Proceedings should be open to the maximum extent practicable.
Photography, video, or audio broadcasting, or recording of or at Commission
proceedings shall be prohibited, except photography, video, and audio recording
by the Commission pursuant to the direction of the Presiding Officer as necessary
for preservation of the record of trial.
(4) Hold each session at such time and place as may be directed by the
Appointing Authority. Members of the Commission may meet in closed
conference at any time.
(5) As soon as practicable at the conclusion of a trial, transmit an authenticated
copy of the record of trial to the Appointing Authority.
C. Oaths
(1) Members of a Commission, all Prosecutors, all Defense Counsel, all court
reporters, all security personnel, and all interpreters shall take an oath to perform
their duties faithfully.
(2) Each witness appearing before a Commission shall be examined under oath,
as provided in Section 6(D)(2)(b).
(3) An oath includes an affirmation. Any formulation that appeals to the
conscience of the person to whom the oath is administered and that binds that
person to speak the truth, or, in the case of one other than a witness, properly to
perform certain duties, is sufficient.
D. Evidence
(1) Admissibility
Evidence shall be admitted if, in the opinion of the Presiding Officer (or instead, if any other
member of the Commission so requests at the time the Presiding Officer renders that opinion, the
opinion of the Commission rendered at that time by a majority of the Commission), the evidence
would have probative value to a reasonable person.
(2) Witnesses
(a) Production of Witnesses
The Prosecution or the Defense may request that the Commission hear the testimony of any
person, and such testimony shall be received if found to be admissible and not cumulative. The
Commission may also summon and hear witnesses on its own initiative. The Commission may
permit the testimony of witnesses by telephone, audiovisual means, or other means; however, the
DoD MCO No. 1, March 21, 2002
Commission shall consider the ability to test the veracity of that testimony in evaluating the
weight to be given to the testimony of the witness.
(b) Testimony
Testimony of witnesses shall be given under oath or affirmation. The Commission may still hear
a witness who refuses to swear an oath or make a solemn undertaking; however, the Commission
shall consider the refusal to swear an oath or give an affirmation in evaluating the weight to be
given to the testimony of the witness.
(c) Examination of Witnesses
A witness who testifies before the Commission is subject to both direct examination and crossexamination.
The Presiding Officer shall maintain order in the proceedings and shall not permit
badgering of witnesses or questions that are not material to the issues before the Commission.
Members of the Commission may question witnesses at any time.
(d) Protection of Witnesses
The Presiding Officer shall consider the safety of witnesses and others, as well as the
safeguarding of Protected Information as defined in Section 6(D)(5)(a), in determining the
appropriate methods of receiving testimony and evidence. The Presiding Officer may hear any
presentation by the Prosecution or the Defense, including an ex parte, in camera presentation,
regarding the safety of potential witnesses before determining the ways in which witnesses and
evidence will be protected. The Presiding Officer may authorize any methods appropriate for the
protection of witnesses and evidence. Such methods may include, but are not limited to:
testimony by telephone, audiovisual means, or other electronic means; closure of the
proceedings; introduction of prepared declassified summaries of evidence; and the use of
pseudonyms.
(3) Other Evidence
Subject to the requirements of Section 6(D)(1) concerning admissibility, the Commission may
consider any other evidence including, but not limited to, testimony from prior trials and
proceedings, sworn or unsworn written statements, physical evidence, or scientific or other
reports.
(4) Notice
The Commission may, after affording the Prosecution and the Defense an opportunity to be
heard, take conclusive notice of facts that are not subject to reasonable dispute either because
they are generally known or are capable of determination by resort to sources that cannot
reasonably be contested.
DoD MCO No. 1, March 21, 2002
(5) Protection of Information
(a) Protective Order
The Presiding Officer may issue protective orders as necessary to carry out the Military Order
and this Order, including to safeguard "Protected Information," which includes: (i) information
classified or classifiable pursuant to reference (d); (ii) information protected by law or rule from
unauthorized disclosure; (iii) information the disclosure of which may endanger the physical
safety of participants in Commission proceedings, including prospective witnesses; (iv)
information concerning intelligence and law enforcement sources, methods, or activities; or (v)
information concerning other national security interests. As soon as practicable, counsel for
either side will notify the Presiding Officer of any intent to offer evidence involving Protected
Information.
(b) Limited Disclosure
The Presiding Officer, upon motion of the Prosecution or sua sponte, shall, as necessary to
protect the interests of the United States and consistent with Section 9, direct (i) the deletion of
specified items of Protected Information from documents to be made available to the the
Accused, Detailed Defense Counsel, or Civilian Defense Counsel; (ii) the substitution of a
portion or summary of the information for such Protected Information; or (iii) the substitution of
a statement of the relevant facts that the Protected Information would tend to prove. The
Prosecution's motion and any materials submitted in support thereof or in response thereto shall,
upon request of the Prosecution, be considered by the Presiding Officer ex parte, in camera, but
no Protected Information shall be admitted into evidence for consideration by the Commission if
not presented to Detailed Defense Counsel.
(c) Closure of Proceedings
The Presiding Officer may direct the closure of proceedings in accordance with Section 6(B)(3).
(d) Protected Information as Part of the Record of Trial
All exhibits admitted as evidence but containing Protected Information shall be sealed and
annexed to the record of trial. Additionally, any Protected Information not admitted as evidence
but reviewed in camera and subsequently withheld from the Defense over Defense objection
shall, with the associated motions and responses and any materials submitted in support thereof,
be sealed and annexed to the record of trial as additional exhibits. Such sealed material shall be
made available to reviewing authorities in closed proceedings.
E. Proceedings During Trial
The proceedings at each trial will be conducted substantially as follows, unless modified by the
Presiding Officer to suit the particular circumstances:
(1) Each charge will be read, or its substance communicated, in the presence of
the Accused and the Commission.
DoD MCO No. 1, March 21, 2002
(2) The Presiding Officer shall ask each Accused whether the Accused pleads
"Guilty" or "Not Guilty." Should the Accused refuse to enter a plea, the
Presiding Officer shall enter a plea of "Not Guilty" on the Accused's behalf. If
the plea to an offense is "Guilty," the Presiding Officer shall enter a finding of
Guilty on that offense after conducting sufficient inquiry to form an opinion that
the plea is voluntary and informed. Any plea of Guilty that is not determined to
be voluntary and informed shall be changed to a plea of Not Guilty. Plea
proceedings shall then continue as to the remaining charges. If a plea of "Guilty"
is made on all charges, the Commission shall proceed to sentencing proceedings;
if not, the Commission shall proceed to trial as to the charges for which a "Not
Guilty" plea has been entered.
(3) The Prosecution shall make its opening statement.
(4) The witnesses and other evidence for the Prosecution shall be heard or
received.
(5) The Defense may make an opening statement after the Prosecution's
opening statement or prior to presenting its case.
(6) The witnesses and other evidence for the Defense shall be heard or received.
(7) Thereafter, the Prosecution and the Defense may introduce evidence in
rebuttal and surrebuttal.
(8) The Prosecution shall present argument to the Commission. Defense
Counsel shall be permitted to present argument in response, and then the
Prosecution may reply in rebuttal.
(9) After the members of the Commission deliberate and vote on findings in
closed conference, the Presiding Officer shall announce the Commission's
findings in the presence of the Commission, the Prosecution, the Accused, and
Defense Counsel. The individual votes of the members of the Commission shall
not be disclosed.
(10) In the event a finding of Guilty is entered for an offense, the Prosecution and
the Defense may present information to aid the Commission in determining an
appropriate sentence. The Accused may testify and shall be subject to crossexamination
regarding any such testimony.
(11) The Prosecution and, thereafter, the Defense shall present argument to the
Commission regarding sentencing.
(12) After the members of the Commission deliberate and vote on a sentence in
closed conference, the Presiding Officer shall announce the Commission's
sentence in the presence of the Commission, the Prosecution, the Accused, and
Defense Counsel. The individual votes of the members of the Commission shall
not be disclosed.
12
DoD MCO No. 1, March 21, 2002
F. Voting
Members of the Commission shall deliberate and vote in closed conference. A Commission
member shall vote for a finding of Guilty as to an offense if and only if that member is
convinced beyond a reasonable doubt, based on the evidence admitted at trial, that the Accused
is guilty of the offense. An affirmative vote of two-thirds of the members is required for a
finding of Guilty. When appropriate, the Commission may adjust a charged offense by
exceptions and substitutions of language that do not substantially change the nature of the
offense or increase its seriousness, or it may vote to convict of a lesser-included offense. An
affirmative vote of two-thirds of the members is required to determine a sentence, except that a
sentence of death requires a unanimous, affirmative vote of all of the members. Votes on
findings and sentences shall be taken by secret, written ballot.
G. Sentence
Upon conviction of an Accused, the Commission shall impose a sentence that is appropriate to
the offense or offenses for which there was a finding of Guilty, which sentence may include
death, imprisonment for life or for any lesser term, payment of a fine or restitution, or such other
lawful punishment or condition of punishment as the Commission shall determine to be proper.
Only a Commission of seven members may sentence an Accused to death. A Commission may
(subject to rights of third parties) order confiscation of any property of a convicted Accused,
deprive that Accused of any stolen property, or order the delivery of such property to the United
States for disposition.
H. Post-Trial Procedures
(1) Record of Trial
Each Commission shall make a verbatim transcript of its proceedings, apart from all Commission
deliberations, and preserve all evidence admitted in the trial (including any sentencing
proceedings) of each case brought before it, which shall constitute the record of trial. The court
reporter shall prepare the official record of trial and submit it to the Presiding Officer for
authentication upon completion. The Presiding Officer shall transmit the authenticated record of
trial to the Appointing Authority. If the Secretary of Defense is serving as the Appointing
Authority, the record shall be transmitted to the Review Panel constituted under Section 6(H)(4).
(2) Finality of Findings and Sentence
A Commission finding as to a charge and any sentence of a Commission becomes final when the
President or, if designated by the President, the Secretary of Defense makes a final decision
thereon pursuant to Section 4(c)(8) of the President's Military Order and in accordance with
Section 6(H)(6) of this Order. An authenticated finding of Not Guilty as to a charge shall not be
changed to a finding of Guilty. Any sentence made final by action of the President or the
Secretary of Defense shall be carried out promptly. Adjudged confinement shall begin
immediately following the trial.
DoD MCO No. 1, March 21, 2002
(3) Review by the Appointing Authority
If the Secretary of Defense is not the Appointing Authority, the Appointing Authority shall
promptly perform an administrative review of the record of trial. If satisfied that the proceedings
of the Commission were administratively complete, the Appointing Authority shall transmit the
record of trial to the Review Panel constituted under Section 6(H)(4). If not so satisfied, the
Appointing Authority shall return the case for any necessary supplementary proceedings.
(4) Review Panel
The Secretary of Defense shall designate a Review Panel consisting of three Military Officers,
which may include civilians commissioned pursuant to reference (e). At least one member of
each Review Panel shall have experience as a judge. The Review Panel shall review the record
of trial and, in its discretion, any written submissions from the Prosecution and the Defense and
shall deliberate in closed conference. The Review Panel shall disregard any variance from
procedures specified in this Order or elsewhere that would not materially have affected the
outcome of the trial before the Commission. Within thirty days after receipt of the record of
trial, the Review Panel shall either (a) forward the case to the Secretary of Defense with a
recommendation as to disposition, or (b) return the case to the Appointing Authority for further
proceedings, provided that a majority of the Review Panel has formed a definite and firm
conviction that a material error of law occurred.
(5) Review by the Secretary of Defense
The Secretary of Defense shall review the record of trial and the recommendation of the Review
Panel and either return the case for further proceedings or, unless making the final decision
pursuant to a Presidential designation under Section 4(c)(8) of the President's Military Order,
forward it to the President with a recommendation as to disposition.
(6) Final Decision
After review by the Secretary of Defense, the record of trial and all recommendations will be
forwarded to the President for review and final decision (unless the President has designated the
Secretary of Defense to perform this function). If the President has so designated the Secretary
of Defense, the Secretary may approve or disapprove findings or change a finding of Guilty to a
finding of Guilty to a lesser-included offense, or mitigate, commute, defer, or suspend the
sentence imposed or any portion thereof. If the Secretary of Defense is authorized to render the
final decision, the review of the Secretary of Defense under Section 6(H)(5) shall constitute the
final decision.
7. REGULATIONS
A. Supplementary Regulations and Instructions
The Appointing Authority shall, subject to approval of the General Counsel of the Department of
Defense if the Appointing Authority is not the Secretary of Defense, publish such further
14
DoD MCO No. 1, March 21, 2002
regulations consistent with the President's Military Order and this Order as are necessary or
appropriate for the conduct of proceedings by Commissions under the President's Military
Order. The General Counsel shall issue such instructions consistent with the President's
Military Order and this Order as the General Counsel deems necessary to facilitate the conduct
of proceedings by such Commissions, including those governing the establishment of
Commission-related offices and performance evaluation and reporting relationships.
B. Construction
In the event of any inconsistency between the President's Military Order and this Order,
including any supplementary regulations or instructions issued under Section 7(A), the
provisions of the President's Military Order shall govern. In the event of any inconsistency
between this Order and any regulations or instructions issued under Section 7(A), the provisions
of this Order shall govern.
S. AUTHORITY
Nothing in this Order shall be construed to limit in any way the authority of the President as
Commander in Chief of the Armed Forces or the power of the President to grant reprieves and
pardons. Nothing in this Order shall affect the authority to constitute military commissions for a
purpose not governed by the President's Military Order.
9. PROTECTION OF STATE SECRETS
Nothing in this Order shall be construed to authorize disclosure of state secrets to any person not
authorized to receive them.
10. OTHER
This Order is not intended to and does not create any right, benefit, or privilege, substantive or
procedural, enforceable by any party, against the United States, its departments, agencies, or
other entities, its officers or employees, or any other person. No provision in this Order shall be
construed to be a requirement of the United States Constitution. Section and subsection captions
in this document are for convenience only and shall not be used in construing the requirements of
this Order. Failure to meet a time period specified in this Order, or supplementary regulations or
instructions issued under Section 7(A), shall not create a right to relief for the Accused or any
other person. Reference (f) shall not apply to this Order or any supplementary regulations or
instructions issued under Section 7(A).
11. AMENDMENT
The Secretary of Defense may amend this Order from time to time.
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12. DELEGATION
The authority of the Secretary of Defense to make requests for assistance under Section 5 of the
President's Military Order is delegated to the General Counsel of the Department of Defense.
The Executive Secretary of the Department of Defense shall provide such assistance to the
General Counsel as the General Counsel determines necessary for this purpose.
13. EFFECTIVE DATE
This Order is effective immediately.
DoD MCO No. 1, March 21, 2002
Donald H. Rumsfe
Secretary of Defense
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