Notes on 10 U.S.C. § 801 : US Code - Notes

Search Notes on 10 U.S.C. § 801 : US Code - Notes

(Aug. 10, 1956, ch. 1041, 70A Stat. 36; Pub. L. 89-670, Sec. 10(g),
Oct. 15, 1966, 80 Stat. 948; Pub. L. 90-179, Sec. 1(1), (2), Dec.
8, 1967, 81 Stat. 545; Pub. L. 90-632, Sec. 2(1), Oct. 24, 1968, 82
Stat. 1335; Pub. L. 98-209, Secs. 2(a), 6(a), Dec. 6, 1983, 97
Stat. 1393, 1400; Pub. L. 100-180, div. A, title XII, Sec.
1231(17), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 100-456, div. A,
title XII, Sec. 1233(f)(1), Sept. 29, 1988, 102 Stat. 2057; Pub. L.
104-106, div. A, title XI, Sec. 1141(b), Feb. 10, 1996, 110 Stat.
467; Pub. L. 107-296, title XVII, Sec. 1704(b)(2), Nov. 25, 2002,
116 Stat. 2314; Pub. L. 109-241, title II, Sec. 218(a), July 11,
2006, 120 Stat. 526.)
HISTORICAL AND REVISION NOTES
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Revised Source (U.S. Code) Source (Statutes at
section Large)
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801 50:551 (less (9)). May 5, 1950, ch. 169,
Sec. 1 (Art. 1 (less
(9))), 64 Stat. 108.
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The words "In this chapter" are substituted for the introductory
clause.
In the introductory clause and throughout the revised chapter the
word "chapter" is substituted for the word "code".
Clauses (1), (2), and (5) of 50:551 are omitted as respectively
covered by the definitions in clauses (4), (6), and (14) of section
101 of this title. The words "commissioned officer" are substituted
for the word "officer" for clarity throughout this chapter, since
the latter term was defined in the limited sense of commissioned
officer in clause (5) of 50:551, and is now covered by section
101(14) of this title.
In clauses (1), (4)-(7), and (9)-(12) of the revised section, the
word "means" is substituted for the words "shall be construed to
refer to" and "shall be construed to refer * * * to".
In clause (1), the words "service in" are substituted for the
words "part of" to conform to section 1 of title 14. The words
"Department of the Treasury" are substituted for the words
"Treasury Department".
Clauses (3) and (4) are inserted for clarity.
In clause (6), the words "the United States Air Force Academy"
are inserted to reflect its establishment by the Air Force Academy
Act (63 Stat. 47).
In clause (8), the word "refers" is substituted for the words
"shall be construed to refer".
In clause (12), the words "Marine Corps" are inserted to make
explicit that the clause applies to the Marine Corps. The word
"commissioned" is inserted for clarity.
AMENDMENTS
2006 - Cl. (11). Pub. L. 109-241, Sec. 218(a)(1), struck out cl.
(11) which read as follows: "The term 'law specialist' means a
commissioned officer of the Coast Guard designated for special duty
(law)."
Cl. (13)(C). Pub. L. 109-241, Sec. 218(a)(2), added subpar. (C)
and struck out former subpar. (C) which read as follows: "an
officer of the Coast Guard who is designated as a law specialist."
2002 - Cl. (1). Pub. L. 107-296 substituted "an official
designated to serve as Judge Advocate General of the Coast Guard by
the Secretary of Homeland Security" for "the General Counsel of the
Department of Transportation".
1996 - Cls. (15), (16). Pub. L. 104-106 added cls. (15) and (16).
1988 - Cl. (1). Pub. L. 100-456 substituted "term 'Judge" for
"term 'judge".
1987 - Cls. (1), (3) to (14). Pub. L. 100-180 inserted "The term"
after each clause designation and revised first word in quotes in
each clause to make initial letter of such word lowercase.
1983 - Cl. (13). Pub. L. 98-209, Sec. 2(a), added officers of the
Coast Guard who are designated as law specialists to definition of
"Judge Advocate".
Cl. (14). Pub. L. 98-209, Sec. 6(a), added cl. (14).
1968 - Cl. (10). Pub. L. 90-632 substituted "military judge" for
"law officer" as term being defined and inserted reference to
special court-martial in the definition thereof.
1967 - Cl. (11). Pub. L. 90-179, Sec. 1(1), struck out "Navy or"
before "Coast Guard".
Cl. (13). Pub. L. 90-179, Sec. 1(2), added cl. (13).
1966 - Pub. L. 89-670 substituted the General Counsel of the
Department of Transportation for the General Counsel of the
Department of the Treasury in definition of "Judge Advocate
General" applicable to the Coast Guard when operating as a service
in the Navy.
EFFECTIVE DATE OF 2002 AMENDMENT
Amendment by Pub. L. 107-296 effective on the date of transfer of
the Coast Guard to the Department of Homeland Security, see section
1704(g) of Pub. L. 107-296, set out as a note under section 101 of
this title.
EFFECTIVE DATE OF 1983 AMENDMENT
Section 12(a) of Pub. L. 98-209 provided that:
"(1) The amendments made by this Act [see Short Title of 1983
Amendment note below] shall take effect on the first day of the
eighth calendar month that begins after the date of enactment of
this Act [Dec. 6, 1983], except that the amendments made by
sections 9, 11 and 13 [amending sections 802, 815, 825, 867, 1552,
and 1553 of this title and enacting provisions set out as a note
under section 867 of this title] shall be effective on the date of
the enactment of this Act. The amendments made by section 11
[amending sections 1552 and 1553 of this title] shall only apply
with respect to cases filed after the date of enactment of this Act
with the boards established under sections 1552 and 1553 of title
10, United States Code.
"(2) The amendments made by section 3(c) and 3(e) [amending
sections 826, 827, and 838 of this title] do not affect the
designation or detail of a military judge or military counsel to a
court-martial before the effective date of such amendments.
"(3) The amendments made by section 4 [amending section 834 of
this title] shall not apply to any case in which charges were
referred to trial before the effective date of such amendments, and
proceedings in any such case shall be held in the same manner and
with the same effect as if such amendments had not been enacted.
"(4) The amendments made by sections 5, 6, and 7 [amending this
section and sections 849, 854, 857, 860 to 867, 869, 871, and 876a
of this title and enacting provisions set out as a note under
section 869 of this title] shall not apply to any case in which the
findings and sentence were adjudged by a court-martial before the
effective date of such amendments. The proceedings in any such case
shall be held in the same manner and with the same effect as if
such amendments had not been enacted.
"(5) The amendments made by section 8 [enacting section 912a of
this title] shall not apply to any offense committed before the
effective date of such amendments. Nothing in this provision shall
be construed to invalidate the prosecution of any offense committed
before the effective date of such amendments."
EFFECTIVE DATE OF 1968 AMENDMENT
Section 4 of Pub. L. 90-632 provided that:
"(a) Except for the amendments made by paragraphs (30) and (33)
of section 2, this Act [see Short Title of 1968 Amendment note
below] shall become effective on the first day of the tenth month
following the month in which it is enacted [October 1968].
"(b) The amendment made by paragraph (30) of section 2 [amending
section 869 of this title] shall become effective upon the date of
enactment of this Act [Oct. 24, 1968].
"(c) The amendment made by paragraph (33) [amending section 873
of this title] shall apply in the case of all court-martial
sentences approved by the convening authority on or after, or not
more than two years before, the date of its enactment [Oct. 24,
1968]."
EFFECTIVE DATE OF 1966 AMENDMENT
Amendment by Pub. L. 89-670 effective Apr. 1, 1967, as prescribed
by the President and published in the Federal Register, see section
16(a), formerly Sec. 15(a), of Pub. L. 89-670, and Ex. Ord. No.
11340, Mar. 30, 1967, 32 F.R. 5453.
EFFECTIVE DATE
Section 51 of act Aug. 10, 1956, provided that: "Chapter 47 of
title 10, United States Code, enacted by section 1 of this Act,
takes effect January 1, 1957."
SHORT TITLE OF 1996 AMENDMENT
Section 1101 of title XI of div. A of Pub. L. 104-106 provided
that: "This title [enacting sections 857a, 858b, and 876b of this
title, amending this section and sections 802, 832, 847, 857, 860,
862, 866, 895, 920, and 937 of this title, repealing section 804 of
Title 37, Pay and Allowances of the Uniformed Services, enacting
provisions set out as notes under sections 802, 857, 858b, and 876b
of this title, and amending provisions set out as a note under
section 942 of this title] may be cited as the 'Military Justice
Amendments of 1995'."
SHORT TITLE OF 1986 AMENDMENT
Pub. L. 99-661, div. A, title VIII, Sec. 801(a), Nov. 14, 1986,
100 Stat. 3905, provided that: "This title [enacting section 850a
of this title, amending sections 802, 803, 806, 825, 843, 860, 936,
and 937 of this title, and enacting provisions set out as notes
under sections 802, 806, 825, 843, 850a, and 860 of this title] may
be cited as the 'Military Justice Amendments of 1986'."
SHORT TITLE OF 1983 AMENDMENT
Section 1(a) of Pub. L. 98-209 provided that: "This Act [enacting
sections 912a of this title and section 1259 of Title 28, Judiciary
and Judicial Procedure, amending this section, sections 802, 806,
815, 816, 825, 826, 827, 829, 834, 838, 842, 849, 854, 857, 860 to
867, 869, 870, 871, 876a, 936, 1552, and 1553 of this title, and
section 2101 of Title 28, and enacting provisions set out as notes
under sections 801, 867, and 869 of this title and amending
provisions set out as a note under section 706 of this title] may
be cited as the 'Military Justice Act of 1983'."
SHORT TITLE OF 1981 AMENDMENT
Pub. L. 97-81, Sec. 1(a), Nov. 20, 1981, 95 Stat. 1085, provided
that: "This Act [enacting sections 706, 707, and 876a of this
title, amending sections 701, 813, 832, 838, 867, and 869 of this
title, and enacting provisions set out as a note under section 706
of this title] may be cited as the 'Military Justice Amendments of
1981'."
SHORT TITLE OF 1968 AMENDMENT
Section 1 of Pub. L. 90-632 provided: "That this Act [amending
this section and sections 806, 816, 818, 819, 820, 825, 826, 827,
829, 835, 837, 838, 839, 840, 841, 842, 845, 849, 851, 852, 854,
857, 865, 866, 867, 868, 869, 870, 871, 873, and 936 of this title
and enacting provisions set out as notes under this section and
sections 826 and 866 of this title] may be cited as the 'Military
Justice Act of 1968'."
REDESIGNATION OF NAVY LAW SPECIALISTS AS JUDGE ADVOCATES
Navy law specialists redesignated judge advocates, see section 8
of Pub. L. 90-179, set out as a note under section 5148 of this
title.
SAVINGS PROVISION
Rights, duties, and proceedings not affected by Pub. L. 90-179
establishing Judge Advocate General's Corps in Navy, see section 10
of Pub. L. 90-179, set out as a note under section 5148 of this
title.
LEGISLATIVE CONSTRUCTION
Section 49(e) of act Aug. 10, 1956, provided that: "In chapter 47
of title 10, United States Code [this chapter], enacted by section
1 of this Act, no inference of a legislative construction is to be
drawn from the part in which any article is placed nor from the
catchlines of the part or the article as set out in that chapter."
TRANSFER OF FUNCTIONS
For transfer of authorities, functions, personnel, and assets of
the Coast Guard, including the authorities and functions of the
Secretary of Transportation relating thereto, to the Department of
Homeland Security, and for treatment of related references, see
sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic
Security, and the Department of Homeland Security Reorganization
Plan of November 25, 2002, as modified, set out as a note under
section 542 of Title 6.
DETAINEE POLICIES
Pub. L. 109-163, div. A, title VII, Sec. 750, Jan. 6, 2006, 119
Stat. 3364, provided that:
"(a) Policy Required. - The Secretary of Defense shall establish
the policy of the Department of Defense on the role of military
medical and behavioral science personnel in the interrogation of
persons detained by the Armed Forces. The policy shall apply
uniformly throughout the Armed Forces.
"(b) Report. - Not later than March 1, 2006, the Secretary shall
submit to the congressional defense committees [Committees on Armed
Services and Appropriations of the Senate and the House of
Representatives] a report on the policy established under
subsection (a). The report shall set forth the policy, and shall
include such additional matters on the policy as the Secretary
considers appropriate."
Pub. L. 109-163, div. A, title XIV, Secs. 1402, 1405, 1406, Jan.
6, 2006, 119 Stat. 3475, 3476, 3479, provided that:
"SEC. 1402. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS
UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.
"(a) In General. - No person in the custody or under the
effective control of the Department of Defense or under detention
in a Department of Defense facility shall be subject to any
treatment or technique of interrogation not authorized by and
listed in the United States Army Field Manual on Intelligence
Interrogation.
"(b) Applicability. - Subsection (a) shall not apply with respect
to any person in the custody or under the effective control of the
Department of Defense pursuant to a criminal law or immigration law
of the United States.
"(c) Construction. - Nothing in this section shall be construed
to affect the rights under the United States Constitution of any
person in the custody or under the physical jurisdiction of the
United States.
"SEC. 1405. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE
UNITED STATES.
"(a) Submittal of Procedures for Status Review of Detainees at
Guantanamo Bay, Cuba, and in Afghanistan and Iraq. -
"(1) In general. - Not later than 180 days after the date of
the enactment of this Act [Jan. 6, 2006], the Secretary of
Defense shall submit to the Committee on Armed Services and the
Committee on the Judiciary of the Senate and the Committee on
Armed Services and the Committee on the Judiciary of the House of
Representatives a report setting forth -
"(A) the procedures of the Combatant Status Review Tribunals
and the Administrative Review Boards established by direction
of the Secretary of Defense that are in operation at Guantanamo
Bay, Cuba, for determining the status of the detainees held at
Guantanamo Bay or to provide an annual review to determine the
need to continue to detain an alien who is a detainee; and
"(B) the procedures in operation in Afghanistan and Iraq for
a determination of the status of aliens detained in the custody
or under the physical control of the Department of Defense in
those countries.
"(2) Designated civilian official. - The procedures submitted
to Congress pursuant to paragraph (1)(A) shall ensure that the
official of the Department of Defense who is designated by the
President or Secretary of Defense to be the final review
authority within the Department of Defense with respect to
decisions of any such tribunal or board (referred to as the
'Designated Civilian Official') shall be a civilian officer of
the Department of Defense holding an office to which appointments
are required by law to be made by the President, by and with the
advice and consent of the Senate.
"(3) Consideration of new evidence. - The procedures submitted
under paragraph (1)(A) shall provide for periodic review of any
new evidence that may become available relating to the enemy
combatant status of a detainee.
"(b) Consideration of Statements Derived With Coercion. -
"(1) Assessment. - The procedures submitted to Congress
pursuant to subsection (a)(1)(A) shall ensure that a Combatant
Status Review Tribunal or Administrative Review Board, or any
similar or successor administrative tribunal or board, in making
a determination of status or disposition of any detainee under
such procedures, shall, to the extent practicable, assess -
"(A) whether any statement derived from or relating to such
detainee was obtained as a result of coercion; and
"(B) the probative value, if any, of any such statement.
"(2) Applicability. - Paragraph (1) applies with respect to any
proceeding beginning on or after the date of the enactment of
this Act [Jan. 6, 2006].
"(c) Report on Modification of Procedures. - The Secretary of
Defense shall submit to the committees specified in subsection
(a)(1) a report on any modification of the procedures submitted
under subsection (a). Any such report shall be submitted not later
than 60 days before the date on which such modification goes into
effect.
"(d) Annual Report. -
"(1) Report required. - The Secretary of Defense shall submit
to Congress an annual report on the annual review process for
aliens in the custody of the Department of Defense outside the
United States. Each such report shall be submitted in
unclassified form, with a classified annex, if necessary. The
report shall be submitted not later than December 31 each year.
"(2) Elements of report. - Each such report shall include the
following with respect to the year covered by the report:
"(A) The number of detainees whose status was reviewed.
"(B) The procedures used at each location.
"(e) Judicial Review of Detention of Enemy Combatants. -
"(1) In general. - [Amended section 2241 of Title 28, Judiciary
and Judicial Procedure.]
"(2) Review of decisions of combatant status review tribunals
of propriety of detention. -
"(A) In general. - Subject to subparagraphs (B), (C), and
(D), the United States Court of Appeals for the District of
Columbia Circuit shall have exclusive jurisdiction to determine
the validity of any final decision of a Combatant Status Review
Tribunal that an alien is properly detained as an enemy
combatant.
"(B) Limitation on claims. - The jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit
under this paragraph shall be limited to claims brought by or
on behalf of an alien -
"(i) who is, at the time a request for review by such court
is filed, detained by the Department of Defense at Guantanamo
Bay, Cuba; and
"(ii) for whom a Combatant Status Review Tribunal has been
conducted, pursuant to applicable procedures specified by the
Secretary of Defense.
"(C) Scope of review. - The jurisdiction of the United States
Court of Appeals for the District of Columbia Circuit on any
claims with respect to an alien under this paragraph shall be
limited to the consideration of -
"(i) whether the status determination of the Combatant
Status Review Tribunal with regard to such alien was
consistent with the standards and procedures specified by the
Secretary of Defense for Combatant Status Review Tribunals
(including the requirement that the conclusion of the
Tribunal be supported by a preponderance of the evidence and
allowing a rebuttable presumption in favor the Government's
evidence); and
"(ii) to the extent the Constitution and laws of the United
States are applicable, whether the use of such standards and
procedures to make the determination is consistent with the
Constitution and laws of the United States.
"(D) Termination on release from custody. - The jurisdiction
of the United States Court of Appeals for the District of
Columbia Circuit with respect to the claims of an alien under
this paragraph shall cease upon the release of such alien from
the custody of the Department of Defense.
"(3) Review of final decisions of military commissions. -
"(A) In general. - Subject to subparagraphs (B), (C), and
(D), the United States Court of Appeals for the District of
Columbia Circuit shall have exclusive jurisdiction to determine
the validity of any final decision rendered pursuant to
Military Commission Order No. 1, dated August 31, 2005 (or any
successor military order).
"(B) Grant of review. - Review under this paragraph -
"(i) with respect to a capital case or a case in which the
alien was sentenced to a term of imprisonment of 10 years or
more, shall be as of right; or
"(ii) with respect to any other case, shall be at the
discretion of the United States Court of Appeals for the
District of Columbia Circuit.
"(C) Limitation on appeals. - The jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit
under this paragraph shall be limited to an appeal brought by
or on behalf of an alien -
"(i) who was, at the time of the proceedings pursuant to
the military order referred to in subparagraph (A), detained
by the Department of Defense at Guantanamo Bay, Cuba; and
"(ii) for whom a final decision has been rendered pursuant
to such military order.
"(D) Scope of review. - The jurisdiction of the United States
Court of Appeals for the District of Columbia Circuit on an
appeal of a final decision with respect to an alien under this
paragraph shall be limited to the consideration of -
"(i) whether the final decision was consistent with the
standards and procedures specified in the military order
referred to in subparagraph (A); and
"(ii) to the extent the Constitution and laws of the United
States are applicable, whether the use of such standards and
procedures to reach the final decision is consistent with the
Constitution and laws of the United States.
"(4) Respondent. - The Secretary of Defense shall be the named
respondent in any appeal to the United States Court of Appeals
for the District of Columbia Circuit under this subsection.
"(f) Construction. - Nothing in this section shall be construed
to confer any constitutional right on an alien detained as an enemy
combatant outside the United States.
"(g) United States Defined. - For purposes of this section, the
term 'United States', when used in a geographic sense, is as
defined in section 101(a)(38) of the Immigration and Nationality
Act [8 U.S.C. 1101(a)(38)] and, in particular, does not include the
United States Naval Station, Guantanamo Bay, Cuba.
"(h) Effective Date. -
"(1) In general. - This section shall take effect on the date
of the enactment of this Act [Jan. 6, 2006].
"(2) Review of combatant status tribunal and military
commission decisions. - Paragraphs (2) and (3) of subsection (e)
shall apply with respect to any claim whose review is governed by
one of such paragraphs and that is pending on or after the date
of the enactment of this Act.
"SEC. 1406. TRAINING OF IRAQI SECURITY FORCES REGARDING TREATMENT
OF DETAINEES.
"(a) Required Policies. -
"(1) In general. - The Secretary of Defense shall prescribe
policies designed to ensure that all military and civilian
Department of Defense personnel or contractor personnel of the
Department of Defense responsible for the training of any unit of
the Iraqi Security Forces provide training to such units
regarding the international obligations and laws applicable to
the humane treatment of detainees, including protections afforded
under the Geneva Conventions and the Convention Against Torture.
"(2) Acknowledgment of training. - The Secretary shall ensure
that, for all personnel of the Iraqi Security Forces who are
provided training referred to in paragraph (1), there is
documented acknowledgment that such training has been provided.
"(3) Deadline for policies to be prescribed. - The policies
required by paragraph (1) shall be prescribed not later than 180
days after the date of the enactment of this Act [Jan. 6, 2006].
"(b) Army Field Manual. -
"(1) Translation. - The Secretary of Defense shall provide for
the unclassified portions of the United States Army Field Manual
on Intelligence Interrogation to be translated into Arabic and
any other language the Secretary determines appropriate for use
by members of the Iraqi security forces.
"(2) Distribution. - The Secretary of Defense shall provide for
such manual, as translated, to be distributed to all appropriate
officials of the Iraqi Government, including, but not limited to,
the Iraqi Minister of Defense, the Iraqi Minister of Interior,
senior Iraqi military personnel, and appropriate members of the
Iraqi Security Forces with a recommendation that the principles
that underlay the manual be adopted by the Iraqis as the basis
for their policies on interrogation of detainees.
"(c) Transmittal to Congressional Committees. - Not less than 30
days after the date on which policies are first prescribed under
subsection (a), the Secretary of Defense shall submit to the
Committee on Armed Services of the Senate and the Committee on
Armed Services of the House of Representatives copies of such
regulations, policies, or orders, together with a report on steps
taken to the date of the report to implement this section.
"(d) Annual Report. - Not less than one year after the date of
the enactment of this Act [Jan. 6, 2006], and annually thereafter,
the Secretary of Defense shall submit to the Committee on Armed
Services of the Senate and the Committee on Armed Services of the
House of Representatives a report on the implementation of this
section."
Pub. L. 109-148, div. A, title X, Secs. 1002, 1005, 1006, Dec.
30, 2005, 119 Stat. 2739, 2740, 2744, as amended by Pub. L. 109-
366, Secs. 9, 10, Oct. 17, 2006, 120 Stat. 2636, 2637, provided
that:
"SEC. 1002. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS
UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.
"(a) In General. - No person in the custody or under the
effective control of the Department of Defense or under detention
in a Department of Defense facility shall be subject to any
treatment or technique of interrogation not authorized by and
listed in the United States Army Field Manual on Intelligence
Interrogation.
"(b) Applicability. - Subsection (a) shall not apply with respect
to any person in the custody or under the effective control of the
Department of Defense pursuant to a criminal law or immigration law
of the United States.
"(c) Construction. - Nothing in this section shall be construed
to affect the rights under the United States Constitution of any
person in the custody or under the physical jurisdiction of the
United States.
"SEC. 1005. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE
UNITED STATES.
"(a) Submittal of Procedures for Status Review of Detainees at
Guantanamo Bay, Cuba, and in Afghanistan and Iraq. -
"(1) In general. - Not later than 180 days after the date of
the enactment of this Act [Dec. 30, 2005], the Secretary of
Defense shall submit to the Committee on Armed Services and the
Committee on the Judiciary of the Senate and the Committee on
Armed Services and the Committee on the Judiciary of the House of
Representatives a report setting forth -
"(A) the procedures of the Combatant Status Review Tribunals
and the Administrative Review Boards established by direction
of the Secretary of Defense that are in operation at Guantanamo
Bay, Cuba, for determining the status of the detainees held at
Guantanamo Bay or to provide an annual review to determine the
need to continue to detain an alien who is a detainee; and
"(B) the procedures in operation in Afghanistan and Iraq for
a determination of the status of aliens detained in the custody
or under the physical control of the Department of Defense in
those countries.
"(2) Designated civilian official. - The procedures submitted
to Congress pursuant to paragraph (1)(A) shall ensure that the
official of the Department of Defense who is designated by the
President or Secretary of Defense to be the final review
authority within the Department of Defense with respect to
decisions of any such tribunal or board (referred to as the
'Designated Civilian Official') shall be a civilian officer of
the Department of Defense holding an office to which appointments
are required by law to be made by the President, by and with the
advice and consent of the Senate.
"(3) Consideration of new evidence. - The procedures submitted
under paragraph (1)(A) shall provide for periodic review of any
new evidence that may become available relating to the enemy
combatant status of a detainee.
"(b) Consideration of Statements Derived With Coercion. -
"(1) Assessment. - The procedures submitted to Congress
pursuant to subsection (a)(1)(A) shall ensure that a Combatant
Status Review Tribunal or Administrative Review Board, or any
similar or successor administrative tribunal or board, in making
a determination of status or disposition of any detainee under
such procedures, shall, to the extent practicable, assess -
"(A) whether any statement derived from or relating to such
detainee was obtained as a result of coercion; and
"(B) the probative value (if any) of any such statement.
"(2) Applicability. - Paragraph (1) applies with respect to any
proceeding beginning on or after the date of the enactment of
this Act [Dec. 30, 2005].
"(c) Report on Modification of Procedures. - The Secretary of
Defense shall submit to the committees specified in subsection
(a)(1) a report on any modification of the procedures submitted
under subsection (a). Any such report shall be submitted not later
than 60 days before the date on which such modification goes into
effect.
"(d) Annual Report. -
"(1) Report required. - The Secretary of Defense shall submit
to Congress an annual report on the annual review process for
aliens in the custody of the Department of Defense outside the
United States. Each such report shall be submitted in
unclassified form, with a classified annex, if necessary. The
report shall be submitted not later than December 31 each year.
"(2) Elements of report. - Each such report shall include the
following with respect to the year covered by the report:
"(A) The number of detainees whose status was reviewed.
"(B) The procedures used at each location.
"(e) Judicial Review of Detention of Enemy Combatants. -
"(1) In general. - [Amended section 2241 of Title 28, Judiciary
and Judicial Procedure.]
"(2) Review of decisions of combatant status review tribunals
of propriety of detention. -
"(A) In general. - Subject to subparagraphs (B), (C), and
(D), the United States Court of Appeals for the District of
Columbia Circuit shall have exclusive jurisdiction to determine
the validity of any final decision of a Combatant Status Review
Tribunal that an alien is properly detained as an enemy
combatant.
"(B) Limitation on claims. - The jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit
under this paragraph shall be limited to claims brought by or
on behalf of an alien -
"(i) who is, at the time a request for review by such court
is filed, detained by the United States; and
"(ii) for whom a Combatant Status Review Tribunal has been
conducted, pursuant to applicable procedures specified by the
Secretary of Defense.
"(C) Scope of review. - The jurisdiction of the United States
Court of Appeals for the District of Columbia Circuit on any
claims with respect to an alien under this paragraph shall be
limited to the consideration of -
"(i) whether the status determination of the Combatant
Status Review Tribunal with regard to such alien was
consistent with the standards and procedures specified by the
Secretary of Defense for Combatant Status Review Tribunals
(including the requirement that the conclusion of the
Tribunal be supported by a preponderance of the evidence and
allowing a rebuttable presumption in favor of the
Government's evidence); and
"(ii) to the extent the Constitution and laws of the United
States are applicable, whether the use of such standards and
procedures to make the determination is consistent with the
Constitution and laws of the United States.
"(D) Termination on release from custody. - The jurisdiction
of the United States Court of Appeals for the District of
Columbia Circuit with respect to the claims of an alien under
this paragraph shall cease upon the release of such alien from
the custody of the Department of Defense.
"(3) Review of final decisions of military commissions. -
"(A) In general. - Subject to subparagraphs (B), (C), and
(D), the United States Court of Appeals for the District of
Columbia Circuit shall have exclusive jurisdiction to determine
the validity of any final decision rendered by a military
commission under chapter 47A of title 10, United States Code.
"(B) Grant of review. - Review under this paragraph shall be
as of right.
"(C) Limitation on appeals. - The jurisdiction of the United
States Court of Appeals for the District of Columbia Circuit
under this paragraph shall be limited to an appeal brought by
or on behalf of an alien -
"(i) who was, at the time of the proceedings by a military
commission referred to in subparagraph (A), detained by the
Department of Defense; and
"(ii) for whom a final decision has been rendered by the
military commission.
"(D) Scope of review. - The jurisdiction of the United States
Court of Appeals for the District of Columbia Circuit on an
appeal of a final decision with respect to an alien under this
paragraph shall be limited to the consideration of -
"(i) whether the final decision was consistent with the
standards and procedures specified for a military commission
referred to in subparagraph (A); and
"(ii) to the extent the Constitution and laws of the United
States are applicable, whether the use of such standards and
procedures to reach the final decision is consistent with the
Constitution and laws of the United States.
"(4) Respondent. - The Secretary of Defense shall be the named
respondent in any appeal to the United States Court of Appeals
for the District of Columbia Circuit under this subsection.
"(f) Construction. - Nothing in this section shall be construed
to confer any constitutional right on an alien detained as an enemy
combatant outside the United States.
"(g) United States Defined. - For purposes of this section, the
term 'United States', when used in a geographic sense, is as
defined in section 101(a)(38) of the Immigration and Nationality
Act [8 U.S.C. 1101(a)(38)] and, in particular, does not include the
United States Naval Station, Guantanamo Bay, Cuba.
"(h) Effective Date. -
"(1) In general. - This section shall take effect on the date
of the enactment of this Act [Dec. 30, 2005].
"(2) Review of combatant status tribunal and military
commission decisions. - Paragraphs (2) and (3) of subsection (e)
shall apply with respect to any claim whose review is governed by
one of such paragraphs and that is pending on or after the date
of the enactment of this Act.
"SEC. 1006. TRAINING OF IRAQI FORCES REGARDING TREATMENT OF
DETAINEES.
"(a) Required Policies. -
"(1) In general. - The Secretary of Defense shall ensure that
policies are prescribed regarding procedures for military and
civilian personnel of the Department of Defense and contractor
personnel of the Department of Defense in Iraq that are intended
to ensure that members of the Armed Forces, and all persons
acting on behalf of the Armed Forces or within facilities of the
Armed Forces, ensure that all personnel of Iraqi military forces
who are trained by Department of Defense personnel and contractor
personnel of the Department of Defense receive training regarding
the international obligations and laws applicable to the humane
detention of detainees, including protections afforded under the
Geneva Conventions and the Convention Against Torture.
"(2) Acknowledgment of training. - The Secretary shall ensure
that, for all personnel of the Iraqi Security Forces who are
provided training referred to in paragraph (1), there is
documented acknowledgment of such training having been provided.
"(3) Deadline for policies to be prescribed. - The policies
required by paragraph (1) shall be prescribed not later than 180
days after the date of the enactment of this Act [Dec. 30, 2005].
"(b) Army Field Manual. -
"(1) Translation. - The Secretary of Defense shall provide for
the United States Army Field Manual on Intelligence Interrogation
to be translated into arabic and any other language the Secretary
determines appropriate for use by members of the Iraqi military
forces.
"(2) Distribution. - The Secretary of Defense shall provide for
such manual, as translated, to be provided to each unit of the
Iraqi military forces trained by Department of Defense personnel
or contractor personnel of the Department of Defense.
"(c) Transmittal of Regulations. - Not less than 30 days after
the date on which regulations, policies, and orders are first
prescribed under subsection (a), the Secretary of Defense shall
submit to the Committee on Armed Services of the Senate and the
Committee on Armed Services of the House of Representatives copies
of such regulations, policies, or orders, together with a report on
steps taken to the date of the report to implement this section.
"(d) Annual Report. - Not less than one year after the date of
the enactment of this Act [Dec. 30, 2005], and annually thereafter,
the Secretary of Defense shall submit to the Committee on Armed
Services of the Senate and the Committee on Armed Services of the
House of Representatives a report on the implementation of this
section."
Pub. L. 108-375, div. A, title X, Secs. 1091, 1092, Oct. 28,
2004, 118 Stat. 2068, 2069, provided that:
"SEC. 1091. SENSE OF CONGRESS AND POLICY CONCERNING PERSONS
DETAINED BY THE UNITED STATES.
"(a) Sense of Congress. - It is the sense of Congress that -
"(1) the abuses inflicted upon detainees at the Abu Ghraib
prison in Baghdad, Iraq, are inconsistent with the
professionalism, dedication, standards, and training required of
individuals who serve in the United States Armed Forces;
"(2) the vast majority of members of the Armed Forces have
upheld the highest possible standards of professionalism and
morality in the face of illegal tactics and terrorist attacks and
attempts on their lives;
"(3) the abuse of persons in United States custody in Iraq is
appropriately condemned and deplored by the American people;
"(4) the Armed Forces are moving swiftly and decisively to
identify, try, and, if found guilty, punish persons who
perpetrated such abuse;
"(5) the Department of Defense and appropriate military
authorities must continue to undertake corrective action, as
appropriate, to address chain-of-command deficiencies and the
systemic deficiencies identified in the incidents in question;
"(6) the Constitution, laws, and treaties of the United States
and the applicable guidance and regulations of the United States
Government prohibit the torture or cruel, inhuman, or degrading
treatment of foreign prisoners held in custody by the United
States;
"(7) the alleged crimes of a handful of individuals should not
detract from the commendable sacrifices of over 300,000 members
of the Armed Forces who have served, or who are serving, in
Operation Iraqi Freedom; and
"(8) no detainee shall be subject to torture or cruel, inhuman,
or degrading treatment or punishment that is prohibited by the
Constitution, laws, or treaties of United States.
"(b) Policy. - It is the policy of the United States to -
"(1) ensure that no detainee shall be subject to torture or
cruel, inhuman, or degrading treatment or punishment that is
prohibited by the Constitution, laws, or treaties of the United
States;
"(2) investigate and prosecute, as appropriate, all alleged
instances of unlawful treatment of detainees in a manner
consistent with the international obligations, laws, or policies
of the United States;
"(3) ensure that all personnel of the United States Government
understand their obligations in both wartime and peacetime to
comply with the legal prohibitions against torture, cruel,
inhuman, or degrading treatment of detainees in the custody of
the United States;
"(4) ensure that, in a case in which there is doubt as to
whether a detainee is entitled to prisoner of war status under
the Geneva Conventions, such detainee receives the protections
accorded to prisoners of war until the detainee's status is
determined by a competent tribunal; and
"(5) expeditiously process and, if appropriate, prosecute
detainees in the custody of the United States, including those in
the custody of the United States Armed Forces at Guantanamo Bay,
Cuba.
"(c) Detainees. - For purposes of this section, the term
'detainee' means a person in the custody or under the physical
control of the United States as a result of armed conflict.
"SEC. 1092. ACTIONS TO PREVENT THE ABUSE OF DETAINEES.
"(a) Policies Required. - The Secretary of Defense shall ensure
that policies are prescribed not later than 150 days after the date
of the enactment of this Act [Oct. 28, 2004] regarding procedures
for Department of Defense personnel and contractor personnel of the
Department of Defense intended to ensure that members of the Armed
Forces, and all persons acting on behalf of the Armed Forces or
within facilities of the Armed Forces, treat persons detained by
the United States Government in a humane manner consistent with the
international obligations and laws of the United States and the
policies set forth in section 1091(b).
"(b) Matters to Be Included. - In order to achieve the objective
stated in subsection (a), the policies under that subsection shall
specify, at a minimum, procedures for the following:
"(1) Ensuring that each commander of a Department of Defense
detention facility or interrogation facility -
"(A) provides all assigned personnel with training, and
documented acknowledgment of receiving training, regarding the
law of war, including the Geneva Conventions; and
"(B) establishes standard operating procedures for the
treatment of detainees.
"(2) Ensuring that each Department of Defense contract in which
contract personnel in the course of their duties interact with
individuals detained by the Department of Defense on behalf of
the United States Government include a requirement that such
contract personnel have received training, and documented
acknowledgment of receiving training, regarding the international
obligations and laws of the United States applicable to the
detention of personnel.
"(3) Providing all detainees with information, in their own
language, of the applicable protections afforded under the Geneva
Conventions.
"(4) Conducting periodic unannounced and announced inspections
of detention facilities in order to provide continued oversight
of interrogation and detention operations.
"(5) Ensuring that, to the maximum extent practicable,
detainees and detention facility personnel of a different gender
are not alone together.
"(c) Secretary of Defense Certification. - The Secretary of
Defense shall certify that all Federal employees and civilian
contractors engaged in the handling or interrogation of individuals
detained by the Department of Defense on behalf of the United
States Government have fulfilled an annual training requirement on
the law of war, the Geneva Conventions, and the obligations of the
United States under international law."
DETENTION, TREATMENT, AND TRIAL OF CERTAIN NON-CITIZENS IN THE WAR
AGAINST TERRORISM
Military Order of President of the United States, dated Nov. 13,
2001, 66 F.R. 57833, provided:
By the authority vested in me as President and as Commander in
Chief of the Armed Forces of the United States by the Constitution
and the laws of the United States of America, including the
Authorization for Use of Military Force Joint Resolution (Public
Law 107-40, 115 Stat. 224) [50 U.S.C. 1541 note] and sections 821
and 836 of title 10, United States Code, it is hereby ordered as
follows:
Section 1. Findings.
(a) International terrorists, including members of al Qaida, have
carried out attacks on United States diplomatic and military
personnel and facilities abroad and on citizens and property within
the United States on a scale that has created a state of armed
conflict that requires the use of the United States Armed Forces.
(b) In light of grave acts of terrorism and threats of terrorism,
including the terrorist attacks on September 11, 2001, on the
headquarters of the United States Department of Defense in the
national capital region, on the World Trade Center in New York, and
on civilian aircraft such as in Pennsylvania, I proclaimed a
national emergency on September 14, 2001 (Proc. 7463, Declaration
of National Emergency by Reason of Certain Terrorist Attacks [50
U.S.C. 1621 note]).
(c) Individuals acting alone and in concert involved in
international terrorism possess both the capability and the
intention to undertake further terrorist attacks against the United
States that, if not detected and prevented, will cause mass deaths,
mass injuries, and massive destruction of property, and may place
at risk the continuity of the operations of the United States
Government.
(d) The ability of the United States to protect the United States
and its citizens, and to help its allies and other cooperating
nations protect their nations and their citizens, from such further
terrorist attacks depends in significant part upon using the United
States Armed Forces to identify terrorists and those who support
them, to disrupt their activities, and to eliminate their ability
to conduct or support such attacks.
(e) To protect the United States and its citizens, and for the
effective conduct of military operations and prevention of
terrorist attacks, it is necessary for individuals subject to this
order pursuant to section 2 hereof to be detained, and, when tried,
to be tried for violations of the laws of war and other applicable
laws by military tribunals.
(f) Given the danger to the safety of the United States and the
nature of international terrorism, and to the extent provided by
and under this order, I find consistent with section 836 of title
10, United States Code, that it is not practicable to apply in
military commissions under this order the principles of law and the
rules of evidence generally recognized in the trial of criminal
cases in the United States district courts.
(g) Having fully considered the magnitude of the potential
deaths, injuries, and property destruction that would result from
potential acts of terrorism against the United States, and the
probability that such acts will occur, I have determined that an
extraordinary emergency exists for national defense purposes, that
this emergency constitutes an urgent and compelling government
interest, and that issuance of this order is necessary to meet the
emergency.
Sec. 2. Definition and Policy.
(a) The term "individual subject to this order" shall mean any
individual who is not a United States citizen with respect to whom
I determine from time to time in writing that:
(1) there is reason to believe that such individual, at the
relevant times,
(i) is or was a member of the organization known as al Qaida;
(ii) has engaged in, aided or abetted, or conspired to
commit, acts of international terrorism, or acts in preparation
therefor, that have caused, threaten to cause, or have as their
aim to cause, injury to or adverse effects on the United
States, its citizens, national security, foreign policy, or
economy; or
(iii) has knowingly harbored one or more individuals
described in subparagraphs (i) or (ii) of subsection 2(a)(1) of
this order; and
(2) it is in the interest of the United States that such
individual be subject to this order.
(b) It is the policy of the United States that the Secretary of
Defense shall take all necessary measures to ensure that any
individual subject to this order is detained in accordance with
section 3, and, if the individual is to be tried, that such
individual is tried only in accordance with section 4.
(c) It is further the policy of the United States that any
individual subject to this order who is not already under the
control of the Secretary of Defense but who is under the control of
any other officer or agent of the United States or any State shall,
upon delivery of a copy of such written determination to such
officer or agent, forthwith be placed under the control of the
Secretary of Defense.
Sec. 3. Detention Authority of the Secretary of Defense. Any
individual subject to this order shall be -
(a) detained at an appropriate location designated by the
Secretary of Defense outside or within the United States;
(b) treated humanely, without any adverse distinction based on
race, color, religion, gender, birth, wealth, or any similar
criteria;
(c) afforded adequate food, drinking water, shelter, clothing,
and medical treatment;
(d) allowed the free exercise of religion consistent with the
requirements of such detention; and
(e) detained in accordance with such other conditions as the
Secretary of Defense may prescribe.
Sec. 4. Authority of the Secretary of Defense Regarding Trials of
Individuals Subject to this Order.
(a) Any individual subject to this order shall, when tried, be
tried by military commission for any and all offenses triable by
military commission that such individual is alleged to have
committed, and may be punished in accordance with the penalties
provided under applicable law, including life imprisonment or
death.
(b) As a military function and in light of the findings in
section 1, including subsection (f) thereof, the Secretary of
Defense shall issue such orders and regulations, including orders
for the appointment of one or more military commissions, as may be
necessary to carry out subsection (a) of this section.
(c) Orders and regulations issued under subsection (b) of this
section shall include, but not be limited to, rules for the conduct
of the proceedings of military commissions, including pretrial,
trial, and post-trial procedures, modes of proof, issuance of
process, and qualifications of attorneys, which shall at a minimum
provide for -
(1) military commissions to sit at any time and any place,
consistent with such guidance regarding time and place as the
Secretary of Defense may provide;
(2) a full and fair trial, with the military commission sitting
as the triers of both fact and law;
(3) admission of such evidence as would, in the opinion of the
presiding officer of the military commission (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), have probative value to a reasonable person;
(4) in a manner consistent with the protection of information
classified or classifiable under Executive Order 12958 of April
17, 1995, as amended [50 U.S.C. 435 note], or any successor
Executive Order, protected by statute or rule from unauthorized
disclosure, or otherwise protected by law, (A) the handling of,
admission into evidence of, and access to materials and
information, and (B) the conduct, closure of, and access to
proceedings;
(5) conduct of the prosecution by one or more attorneys
designated by the Secretary of Defense and conduct of the defense
by attorneys for the individual subject to this order;
(6) conviction only upon the concurrence of two-thirds of the
members of the commission present at the time of the vote, a
majority being present;
(7) sentencing only upon the concurrence of two-thirds of the
members of the commission present at the time of the vote, a
majority being present; and
(8) submission of the record of the trial, including any
conviction or sentence, for review and final decision by me or by
the Secretary of Defense if so designated by me for that purpose.
Sec. 5. Obligation of Other Agencies to Assist the Secretary of
Defense.
Departments, agencies, entities, and officers of the United
States shall, to the maximum extent permitted by law, provide to
the Secretary of Defense such assistance as he may request to
implement this order.
Sec. 6. Additional Authorities of the Secretary of Defense.
(a) As a military function and in light of the findings in
section 1, the Secretary of Defense shall issue such orders and
regulations as may be necessary to carry out any of the provisions
of this order.
(b) The Secretary of Defense may perform any of his functions or
duties, and may exercise any of the powers provided to him under
this order (other than under section 4(c)(8) hereof) in accordance
with section 113(d) of title 10, United States Code.
Sec. 7. Relationship to Other Law and Forums.
(a) Nothing in this order shall be construed to -
(1) authorize the disclosure of state secrets to any person not
otherwise authorized to have access to them;
(2) limit the authority of the President as Commander in Chief
of the Armed Forces or the power of the President to grant
reprieves and pardons; or
(3) limit the lawful authority of the Secretary of Defense, any
military commander, or any other officer or agent of the United
States or of any State to detain or try any person who is not an
individual subject to this order.
(b) With respect to any individual subject to this order -
(1) military tribunals shall have exclusive jurisdiction with
respect to offenses by the individual; and
(2) the individual shall not be privileged to seek any remedy
or maintain any proceeding, directly or indirectly, or to have
any such remedy or proceeding sought on the individual's behalf,
in (i) any court of the United States, or any State thereof, (ii)
any court of any foreign nation, or (iii) any international
tribunal.
(c) This order is not intended to and does not create any right,
benefit, or privilege, substantive or procedural, enforceable at
law or equity by any party, against the United States, its
departments, agencies, or other entities, its officers or
employees, or any other person.
(d) For purposes of this order, the term "State" includes any
State, district, territory, or possession of the United States.
(e) I reserve the authority to direct the Secretary of Defense,
at any time hereafter, to transfer to a governmental authority
control of any individual subject to this order. Nothing in this
order shall be construed to limit the authority of any such
governmental authority to prosecute any individual for whom control
is transferred.
Sec. 8. Publication.
This order shall be published in the Federal Register.
George W. Bush.