§949d — Title 10 Armed Forces | U.S. Code

Summary

After charges are served and sent for trial, the military judge can open the commission without its members to handle pretrial matters. The judge can decide motions and other issues that do not need a full trial, rule on things the judge is allowed to rule on, take the accused’s plea if allowed under rules set by the Secretary of Defense, and do other procedural tasks that do not require the members. Except as provided in subsections (b), (c), and (d), these sessions must include the accused, defense counsel, and trial counsel and become part of the record. Only the members may be present when they deliberate or vote. The judge may close all or part of proceedings to the public if the judge finds it is needed to protect information whose disclosure could harm national security (including intelligence or law enforcement sources, methods, or activities) or to protect people’s physical safety. That finding can be based on a presentation, including private or closed-door presentations by either side. The judge may also remove the accused from part of a proceeding after warning if the accused keeps acting in a way that endangers safety or disrupts the trial.

Title 10, §949d

Armed Forces — Source: USLM XML via OLRC

(a)(1)At any time after the service of charges which have been referred for trial by military commission under this chapter, the military judge may call the military commission into session without the presence of the members for the purpose of—

(A)hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty;

(B)hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members;

(C)if permitted by regulations prescribed by the Secretary of Defense, receiving the pleas of the accused; and

(D)performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 949a of this title and which does not require the presence of the members.

(2)Except as provided in subsections (b), (c), and (d), any proceedings under paragraph (1) shall be conducted in the presence of the accused, defense counsel, and trial counsel, and shall be made part of the record.

(b)When the members of a military commission under this chapter deliberate or vote, only the members may be present.

(c)(1)The military judge may close to the public all or part of the proceedings of a military commission under this chapter.

(2)The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon making a specific finding that such closure is necessary to—

(A)protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities; or

(B)ensure the physical safety of individuals.

(3)A finding under paragraph (2) may be based upon a presentation, including a presentation ex parte or in camera, by either trial counsel or defense counsel.

(d)The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom—

(1)to ensure the physical safety of individuals; or

(2)to prevent disruption of the proceedings by the accused.

Editorial Notes

Prior Provisions

A prior section 949d, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2611, related to sessions of military commissions, prior to the general amendment of this chapter by Pub. L. 111–84.

§949d Sessions

Summary

Title 10, §949d

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Citations & Metadata