SUBCHAPTER I—GENERAL PROVISIONS
| Sec. | Art. | |
|---|---|---|
| 801. | 1. | Definitions. |
| 802. | 2. | Persons subject to this chapter. |
| 803. | 3. | Jurisdiction to try certain personnel. |
| 804. | 4. | Dismissed officer's right to trial by court-martial. |
| 805. | 5. | Territorial applicability of this chapter. |
| 806. | 6. | Judge advocates and legal officers. |
| 806a. | 6a. | Investigation and disposition of matters pertaining to the fitness of military judges. |
| 806b. | 6b. | Rights of the victim of an offense under this chapter. |
Editorial Notes
Amendments
2013—
1989—
§801. Article 1. Definitions
In this chapter (the Uniform Code of Military Justice):
(1) The term "Judge Advocate General" means, severally, the Judge Advocates General of the Army, Navy, and Air Force and, except when the Coast Guard is operating as a service in the Navy, an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security.
(2) The Navy, the Marine Corps, and the Coast Guard when it is operating as a service in the Navy, shall be considered as one armed force.
(3) The term "commanding officer" includes only commissioned officers.
(4) The term "officer in charge" means a member of the Navy, the Marine Corps, or the Coast Guard designated as such by appropriate authority.
(5) The term "superior commissioned officer" means a commissioned officer superior in rank or command.
(6) The term "cadet" means a cadet of the United States Military Academy, the United States Air Force Academy, or the United States Coast Guard Academy.
(7) The term "midshipman" means a midshipman of the United States Naval Academy and any other midshipman on active duty in the naval service.
(8) The term "military" refers to any or all of the armed forces.
(9) The term "accuser" means a person who signs and swears to charges, any person who directs that charges nominally be signed and sworn to by another, and any other person who has an interest other than an official interest in the prosecution of the accused.
(10) The term "military judge" means a judge advocate designated under
(11) The term "military magistrate" means a commissioned officer certified for duty as a military magistrate in accordance with
(12) The term "legal officer" means any commissioned officer of the Navy, Marine Corps, or Coast Guard designated to perform legal duties for a command.
(13) The term "judge advocate" means—
(A) an officer of the Judge Advocate General's Corps of the Army, the Navy, or the Air Force;
(B) an officer of the Marine Corps who is designated as a judge advocate; or
(C) a commissioned officer of the Coast Guard designated for special duty (law).
(14) The term "record", when used in connection with the proceedings of a court-martial, means—
(A) an official written transcript, written summary, or other writing relating to the proceedings; or
(B) an official audiotape, videotape, or similar material from which sound, or sound and visual images, depicting the proceedings may be reproduced.
(15) The term "classified information" means (A) any information or material that has been determined by an official of the United States pursuant to law, an Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security, and (B) any restricted data, as defined in section 11(y) of the Atomic Energy Act of 1954 (
(16) The term "national security" means the national defense and foreign relations of the United States.
(17) The term "covered offense" means—
(A) an offense under section 917a (article 117a), section 918 (article 118), section 919 (article 119), section 919a (article 119a), section 920 (article 120), section 920a (article 120a), section 920b (article 120b), section 920c (article 120c), section 925 (article 125), section 928b (article 128b), section 930 (article 130), section 932 (article 132), or the standalone offense of child pornography punishable under section 934 (article 134) of this title;
(B) a conspiracy to commit an offense specified in subparagraph (A) as punishable under
(C) a solicitation to commit an offense specified in subparagraph (A) as punishable under
(D) an attempt to commit an offense specified in subparagraph (A), (B), or (C) as punishable under
(18) The term "special trial counsel" means a judge advocate detailed as a special trial counsel in accordance with
(Aug. 10, 1956, ch. 1041,
Amendment of Paragraph (17)(A)
(1) by striking "or"; and
(2) by striking "of this title" and inserting ", or the standalone offense of sexual harassment punishable under section 934 (article 134) of this title in each instance in which a formal complaint is made and such formal complaint is substantiated in accordance with regulations prescribed by the Secretary concerned".
See 2022 Amendment note below.
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 801 | 50:551 (less (9)). | May 5, 1950, ch. 169, §1 (Art. 1 (less (9))), |
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
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
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 (
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.
Editorial Notes
Amendments
2022—Par. (17)(A).
2021—Par. (11).
Pars. (17), (18).
2017—
2016—Cl. (10).
Cl. (13)(A).
Cl. (13)(B).
2006—Cl. (11).
Cl. (13)(C).
2002—Cl. (1).
1996—Cls. (15), (16).
1988—Cl. (1).
1987—Cls. (1), (3) to (14).
1983—Cl. (13).
Cl. (14).
1968—Cl. (10).
1967—Cl. (11).
Cl. (13).
1966—
Statutory Notes and Related Subsidiaries
Effective Date of 2022 Amendment
Effective Date of 2021 Amendment
"(a)
"(b)
"(1)
"(2)
Effective Date of 2017 Amendment
Effective Date of 2016 Amendment
"(a)
"(b)
"(c)
"(1)
"(2)
"(3)
"(A)
"(B)
"(4)
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1983 Amendment
"(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
"(2) The amendments made by section 3(c) and 3(e) [amending
"(3) The amendments made by section 4 [amending
"(4) The amendments made by sections 5, 6, and 7 [amending this section and
"(5) The amendments made by section 8 [enacting
Effective Date of 1968 Amendment
"(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
"(c) The amendment made by paragraph (33) [amending
Effective Date of 1966 Amendment
Amendment by
Effective Date
Act Aug. 10, 1956, ch. 1041, §51,
Short Title of 1996 Amendment
Short Title of 1986 Amendment
Short Title of 1983 Amendment
Short Title of 1981 Amendment
Short Title of 1968 Amendment
Redesignation of Navy Law Specialists as Judge Advocates
Navy law specialists redesignated judge advocates, see section 8 of
Savings Provision
Rights, duties, and proceedings not affected by
Legislative Construction
Act Aug. 10, 1956, ch. 1041, §49(e),
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
Applicability to the United States Coast Guard
Assessment of Racial, Ethnic, and Gender Disparities in the Military Justice System
"(a)
"(b)
"(1) For each court-martial conducted by an Armed Force after the date of the enactment of this Act, the Secretary of Defense shall require the head of the Armed Force concerned—
"(A) to record the race, ethnicity, and gender of the victim and the accused, and such other demographic information about the victim and the accused as the Secretary considers appropriate;
"(B) to include data based on the information described in subparagraph (A) in the annual military justice reports of the Armed Force.
"(2) The Secretary of Defense, in consultation with the Secretaries of the military departments and the Secretary of Homeland Security, shall issue guidance that—
"(A) establishes criteria to determine when data indicating possible racial, ethnic, or gender disparities in the military justice process should be further reviewed; and
"(B) describes how such a review should be conducted.
"(3) The Secretary of Defense, in consultation with the Secretaries of the military departments and the Secretary of Homeland Security, shall—
"(A) conduct an evaluation to identify the causes of any racial, ethnic, or gender disparities identified in the military justice system;
"(B) take steps to address the causes of any such disparities, as appropriate.
"(c)
"(1)
"(A) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed Forces accused of a penetrative sexual assault offense or contact sexual assault offense in an unrestricted report made pursuant to Department of Defense Instruction 6495.02, including an unrestricted report involving a spouse or intimate partner, in all cases completed in each fiscal year assessed.
"(B) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed Forces against whom charges were preferred pursuant to Rule for Courts-Martial 307 for a penetrative sexual assault offense or contact sexual assault offense in all cases completed in each fiscal year assessed.
"(C) A review and assessment, by fiscal year, of the race and ethnicity of members of the Armed Forces who were convicted of a penetrative sexual assault offense or contact sexual assault offense in all cases completed in each fiscal year assessed.
"(2)
"(A)
"(B)
"(3)
"(4)
"(A) The term 'independent committee DAC–IPAD' means the independent committee established by the Secretary of Defense under section 546 of the Carl Levin and Howard P. 'Buck' McKeon National Defense Authorization Act for Fiscal Year 2015 (
"(B) The term 'case' means an unrestricted report of any penetrative sexual assault offense or contact sexual assault offense made against a member of the Armed Forces pursuant to Department of Defense Instruction 6495.02, including any unrestricted report involving a spouses or intimate partner for which an investigation has been opened by a criminal investigative organization.
"(C) The term 'completed', with respect to a case, means that the case was tried to verdict, dismissed without further action, or dismissed and then resolved by non-judicial or administrative proceedings.
"(D) The term 'contact sexual assault offense' means aggravated sexual contact, abusive sexual contact, wrongful sexual contact, and attempts to commit such offenses under the Uniform Code of Military Justice.
"(E) The term 'penetrative sexual assault offense' means rape, aggravated sexual assault, sexual assault, forcible sodomy, and attempts to commit such offenses under the Uniform Code of Military Justice."
Pilot Programs on Defense Investigators in the Military Justice System
"(a)
"(1) Determine whether the presence of defense investigators within such military justice system will—
"(A) make such military justice system more effective in providing an effective defense for the accused; and
"(B) make such military justice system more fair and efficient.
"(2) Otherwise assess the feasibility and advisability of defense investigators as an element of such military justice system.
"(b)
"(1)
"(2)
"(c)
"(1)
"(2)
"(A) A description of each pilot program, including the personnel and activities of defense investigators under such pilot program.
"(B) An assessment of the feasibility and advisability of establishing and maintaining defense investigators as an element of the military justice systems of the military departments.
"(C) If the assessment under subparagraph (B) is that the establishment and maintenance of defense investigators as an element of the military justice systems of the military departments is feasible and advisable, such recommendations for legislative and administrative action as the Secretary of Defense considers appropriate to establish and maintain defense investigators as an element of the military justice systems.
"(D) Any other matters the Secretary of Defense considers appropriate."
Chief Medical Officer at United States Naval Station, Guantanamo Bay, Cuba
"(a)
"(1)
"(2)
"(3)
"(b)
"(1)
"(2)
"(c)
"(1)
"(A) decisions regarding assessment, diagnosis, and treatment; and
"(B) determinations concerning medical accommodations to living conditions and operating procedures for detention facilities.
"(2)
"(3)
"(d)
"(1)
"(A) Any individual detained at Guantanamo.
"(B) Any medical records of any individual detained at Guantanamo.
"(C) Medical professionals of the Department who are working, or have worked, at United States Naval Station, Guantanamo Bay.
"(2)
"(3)
"(e)
"(1)
"(A) is not a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (
"(B) is—
"(i) in the custody or under the control of the Department of Defense; or
"(ii) otherwise detained at United States Naval Station, Guantanamo Bay.
"(2)
"(3)
Sentencing in Certain Transitional Cases
"(1)
"(A) Except as provided in subparagraph (B), the relevant sentencing sections shall be applied as if the amendments to such sections made by the Military Justice Act of 2016 (division E of
"(B) If the accused so requests, the relevant sentencing sections shall be applied as amended by the Military Justice Act of 2016 (division E of
"(2)
"(A)
"(i) A prosecution of one or more offenses committed before the date designated by the President under section 5542(a) of the Military Justice Act of 2016 (division E of
"(ii) A prosecution of one or more offenses committed on or after that date.
"(B)
Improved Implementation of Changes to Uniform Code of Military Justice
Reenactment and Modification of Certain Prior Requirements for Certifications Relating to Transfer of Detainees at United States Naval Station, Guantanamo Bay, Cuba, to Foreign Countries and Other Foreign Entities
"(a)
"(1)
"(2)
"(b)
"(1) the transfer concerned is in the national security interests of the United States;
"(2) the government of the foreign country or the recognized leadership of the foreign entity to which the individual detained at Guantanamo concerned is to be transferred—
"(A) is not a designated state sponsor of terrorism or a designated foreign terrorist organization;
"(B) maintains control over each detention facility in which the individual is to be detained if the individual is to be housed in a detention facility;
"(C) has taken or agreed to take appropriate steps to substantially mitigate any risk the individual could attempt to reengage in terrorist activity or otherwise threaten the United States or its allies or interests; and
"(D) has agreed to share with the United States any information that is related to the individual;
"(3) if the country to which the individual is to be transferred is a country to which the United States transferred an individual who was detained at United States Naval Station, Guantanamo Bay, Cuba, at any time after September 11, 2001, and such transferred individual subsequently engaged in any terrorist activity, the Secretary has—
"(A) considered such circumstances; and
"(B) determined that the actions to be taken as described in paragraph (2)(C) will substantially mitigate the risk of recidivism with regard to the individual to be transferred; and
"(4) includes an intelligence assessment, in classified or unclassified form, of the capacity, willingness, and past practices (if applicable) of the foreign country or foreign entity concerned in relation to the certification of the Secretary under this subsection.
"(c)
"(d)
"(1) who has substantially cooperated with United States intelligence and law enforcement authorities, pursuant to a pre-trial agreement, while in the custody of or under the effective control of the Department of Defense; and
"(2) for whom agreements and effective mechanisms are in place, to the extent relevant and necessary, to provide for continued cooperation with United States intelligence and law enforcement authorities.
"(e)
"(1) A detailed statement of the basis for the transfer of the individual.
"(2) An explanation why the transfer of the individual is in the national security interests of the United States.
"(3) A description of actions taken to mitigate the risks of reengagement by the individual as described in subsection (b)(2)(C), including any actions taken to address factors relevant to an applicable prior case of reengagement described in subsection (b)(3).
"(4) A copy of any Periodic Review Board findings relating to the individual.
"(5) A copy of the final recommendation by the Guantanamo Detainee Review Task Force established pursuant to Executive Order 13492 [set out below] relating to the individual and, if applicable, updated information related to any change to such recommendation.
"(6) An assessment whether, as of the date of the certification, the country to which the individual is to be transferred is facing a threat that could substantially affect its ability to exercise control over the individual.
"(7) A classified summary of—
"(A) the individual's record of cooperation, if any, while in the custody of or under the effective control of the Department of Defense; and
"(B) any agreements and mechanisms in place to provide for continuing cooperation.
"(f)
"(1) The term 'appropriate committees of Congress' means—
"(A) the Committee on Armed Services, the Committee on Foreign Relations, the Committee on Appropriations, and the Select Committee on Intelligence of the Senate; and
"(B) the Committee on Armed Services, the Committee on Foreign Affairs, the Committee on Appropriations, and the Permanent Select Committee on Intelligence of the House of Representatives.
"(2) The term 'individual detained at Guantanamo' means any individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—
"(A) is not a citizen of the United States or a member of the Armed Forces of the United States; and
"(B) is—
"(i) in the custody or under the control of the Department of Defense; or
"(ii) otherwise under detention at United States Naval Station, Guantanamo Bay, Cuba.
"(3) The term 'foreign terrorist organization' means any organization so designated by the Secretary of State under section 219 of the Immigration and Nationality Act (
"(4) The term 'state sponsor of terrorism' has the meaning given that term in section 301(13) of the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 (
Transfers to Foreign Countries of Individuals Detained at United States Naval Station, Guantanamo Bay, Cuba
Notice to Congress on Use of Naval Vessels for Detention of Individuals
Notice Required Prior To Transfer of Certain Individuals Detained at the Detention Facility at Parwan, Afghanistan
"(a)
"(b)
"(1) In the case of the proposed transfer of such an individual by reason of the individual being released, an assessment of the threat posed by the individual and the security environment of the country to which the individual is to be transferred.
"(2) In the case of the proposed transfer of such an individual to a country other than Afghanistan for the purpose of the prosecution of the individual, an assessment regarding the capacity, willingness, and historical track record of the country with respect to prosecuting similar cases, including a review of the primary evidence against the individual to be transferred and any significant admissibility issues regarding such evidence that are expected to arise in connection with the prosecution of the individual.
"(3) In the case of the proposed transfer of such an individual for reintegration or rehabilitation in a country other than Afghanistan, an assessment regarding the capacity, willingness, and historical track records of the country for reintegrating or rehabilitating similar individuals.
"(4) In the case of the proposed transfer of such an individual to the custody of the Government of Afghanistan for prosecution or detention, an assessment regarding the capacity, willingness, and historical track record of Afghanistan to prosecute or detain long-term such individuals.
"(c)
Requirements for Certifications Relating to the Transfer of Detainees at United States Naval Station, Guantanamo Bay, Cuba, to Foreign Countries and Other Foreign Entities
Rights Unaffected
Notification of Transfer of a Detainee Held at United States Naval Station, Guantanamo Bay, Cuba
"(a)
"(1) The name of the individual to be transferred or released.
"(2) The country or the freely associated State to which such individual is to be transferred or released.
"(3) The terms of any agreement with the country or the freely associated State for the acceptance of such individual, including the amount of any financial assistance related to such agreement.
"(4) The agencies or departments of the United States responsible for ensuring that the agreement described in paragraph (3) is carried out.
"(b)
"(c)
"(1) Section 1028 of the National Defense Authorization Act for Fiscal Year 2012 [
"(2) Section 8120 of the Department of Defense Appropriations Act, 2012 [div. A of
[Memorandum of President of the United States, Jan. 27, 2012, 77 F.R. 11371, delegated to the Secretary of State, in consultation with the Secretary of Defense, the function to provide to Congress the information specified in section 308(a) of
Detention Authority and Procedures, Transfer Certifications and Prosecution Consultation Requirement
"SEC. 1021. AFFIRMATION OF AUTHORITY OF THE ARMED FORCES OF THE UNITED STATES TO DETAIN COVERED PERSONS PURSUANT TO THE AUTHORIZATION FOR USE OF MILITARY FORCE.
"(a)
"(b)
"(1) A person who planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored those responsible for those attacks.
"(2) A person who was a part of or substantially supported al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners, including any person who has committed a belligerent act or has directly supported such hostilities in aid of such enemy forces.
"(c)
"(1) Detention under the law of war without trial until the end of the hostilities authorized by the Authorization for Use of Military Force.
"(2) Trial under
"(3) Transfer for trial by an alternative court or competent tribunal having lawful jurisdiction.
"(4) Transfer to the custody or control of the person's country of origin, any other foreign country, or any other foreign entity.
"(d)
"(e)
"(f)
"SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.
"(a)
"(1)
"(2)
"(A) to be a member of, or part of, al-Qaeda or an associated force that acts in coordination with or pursuant to the direction of al-Qaeda; and
"(B) to have participated in the course of planning or carrying out an attack or attempted attack against the United States or its coalition partners.
"(3)
"(4)
"(b)
"(1)
"(2)
"(c)
"(1)
"(2)
"(A) Procedures designating the persons authorized to make determinations under subsection (a)(2) and the process by which such determinations are to be made.
"(B) Procedures providing that the requirement for military custody under subsection (a)(1) does not require the interruption of ongoing surveillance or intelligence gathering with regard to persons not already in the custody or control of the United States.
"(C) Procedures providing that a determination under subsection (a)(2) is not required to be implemented until after the conclusion of an interrogation which is ongoing at the time the determination is made and does not require the interruption of any such ongoing interrogation.
"(D) Procedures providing that the requirement for military custody under subsection (a)(1) does not apply when intelligence, law enforcement, or other Government officials of the United States are granted access to an individual who remains in the custody of a third country.
"(E) Procedures providing that a certification of national security interests under subsection (a)(4) may be granted for the purpose of transferring a covered person from a third country if such a transfer is in the interest of the United States and could not otherwise be accomplished.
"(d)
"(e)
"SEC. 1023. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.
"(a)
"(b)
"(1) clarify that the purpose of the periodic review process is not to determine the legality of any detainee's law of war detention, but to make discretionary determinations whether or not a detainee represents a continuing threat to the security of the United States;
"(2) clarify that the Secretary of Defense is responsible for any final decision to release or transfer an individual detained in military custody at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Executive Order referred to in subsection (a), and that in making such a final decision, the Secretary shall consider the recommendation of a periodic review board or review committee established pursuant to such Executive Order, but shall not be bound by any such recommendation;
"(3) clarify that the periodic review process applies to any individual who is detained as an unprivileged enemy belligerent at United States Naval Station, Guantanamo Bay, Cuba, at any time; and
"(4) ensure that appropriate consideration is given to factors addressing the need for continued detention of the detainee, including—
"(A) the likelihood the detainee will resume terrorist activity if transferred or released;
"(B) the likelihood the detainee will reestablish ties with al-Qaeda, the Taliban, or associated forces that are engaged in hostilities against the United States or its coalition partners if transferred or released;
"(C) the likelihood of family, tribal, or government rehabilitation or support for the detainee if transferred or released;
"(D) the likelihood the detainee may be subject to trial by military commission; and
"(E) any law enforcement interest in the detainee.
"(c)
"(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and
"(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
"SEC. 1024. PROCEDURES FOR STATUS DETERMINATIONS.
"(a)
"(b)
"(1) A military judge shall preside at proceedings for the determination of status of an unprivileged enemy belligerent.
"(2) An unprivileged enemy belligerent may, at the election of the belligerent, be represented by military counsel at proceedings for the determination of status of the belligerent.
"(c)
"(d)
"(e)
"(1) the Committee on Armed Services and the Select Committee on Intelligence of the Senate; and
"(2) the Committee on Armed Services and the Permanent Select Committee on Intelligence of the House of Representatives.
"SEC. 1025. REQUIREMENT FOR NATIONAL SECURITY PROTOCOLS GOVERNING DETAINEE COMMUNICATIONS.
"(a)
"(b)
"(1) Detainee access to military or civilian legal representation, or both, including any limitations on such access and the manner in which any applicable legal privileges will be balanced with national security considerations.
"(2) Detainee communications with persons other than Federal Government personnel and members of the Armed Forces, including meetings, mail, phone calls, and video teleconferences, including—
"(A) any limitations on categories of information that may be discussed or materials that may be shared; and
"(B) the process by which such communications or materials are to be monitored or reviewed.
"(3) The extent to which detainees may receive visits by persons other than military or civilian representatives.
"(4) The measures planned to be taken to implement and enforce the provisions of the protocol.
"(c)
"(d)
"[SEC. 1028. Repealed. Pub. L. 113–66, div. A, title X, §1035(f)(1), Dec. 26, 2013, 127 Stat. 853 .]
"SEC. 1029. REQUIREMENT FOR CONSULTATION REGARDING PROSECUTION OF TERRORISTS.
"(a)
"(1) whether the more appropriate forum for prosecution would be a Federal court or a military commission; and
"(2) whether the individual should be held in civilian custody or military custody pending prosecution.
"(b)
"(1) a person who is subject to the requirements of section 1022, in accordance with a determination made pursuant to subsection (a)(2) of such section; and
"(2) any other person who is held in military detention outside of the United States pursuant to the authority affirmed by section 1021."
[Memorandum of President of the United States, Feb. 28, 2012, 77 F.R. 12435, delegated the waiver authority conferred upon the President by section 1022(a)(4) of
Prohibition on Interrogation of Detainees by Contractor Personnel
"(a)
"(b)
"(1) such personnel are subject to the same rules, procedures, policies, and laws pertaining to detainee operations and interrogations as apply to government personnel in such positions in such interrogations; and
"(2) appropriately qualified and trained military or civilian personnel of the Department of Defense are available to oversee the contractor's performance and to ensure that contractor personnel do not perform activities that are prohibited under this section.
"(c)
"(d)
"(1)
"(2)
"(A)
"(B)
"(3)
No Miranda Warnings for Al Qaeda Terrorists
"(a)
"(1)
"(2)
"(3)
"(A) The term 'foreign national' means an individual who is not a citizen or national of the United States.
"(B) The term 'enemy belligerent' includes a privileged belligerent against the United States and an unprivileged enemy belligerent, as those terms are defined in
"(b)
"(1) the tactical questioning of detainees at the point of capture by United States Armed Forces deployed in support of Operation Enduring Freedom;
"(2) post-capture theater-level interrogations and intelligence-gathering activities conducted as part of Operation Enduring Freedom;
"(3) the overall counterinsurgency strategy and objectives of the United States for Operation Enduring Freedom;
"(4) United States military operations and objectives in Afghanistan; and
"(5) potential risks to members of the Armed Forces operating in Afghanistan."
Requirement for Videotaping or Otherwise Electronically Recording Strategic Intelligence Interrogations of Persons in the Custody of or Under the Effective Control of the Department of Defense
"(a)
"(b)
"(c)
"(d)
"(1) any member of the Armed Forces engaged in direct combat operations to videotape or otherwise electronically record an interrogation of a person described in subsection (a); or
"(2) the videotaping of or otherwise electronically recording of tactical questioning, as such term is defined in the Army Field Manual on Human Intelligence Collector Operations (FM 2–22.3, September 2006), or any successor thereto.
"(e)
"(1)
"(A) makes a determination in writing that such a waiver is necessary to the national security interests of the United States; and
"(B) by not later than five days after the date on which such a determination is made, submits to the Committees on Armed Services of the Senate and House of Representatives, the House Permanent Select Committee on Intelligence, and the Senate Select Committee on Intelligence notice of that determination, including a justification for that determination.
"(2)
"(A) makes a determination in writing that such a suspension is vital to the national security interests of the United States; and
"(B) by not later than five days after the date on which such a determination is made, submits to the Committees on Armed Services of the Senate and House of Representatives, the House Permanent Select Committee on Intelligence, and the Senate Select Committee on Intelligence notice of that determination, including a justification for that determination.
"(3)
"(A) In the case of the authority under paragraph (1), such authority may not be delegated below the level of the combatant commander of the theater in which the detention facility holding the person is located.
"(B) In the case of the authority under paragraph (2), such authority may not be delegated below the level of the Deputy Secretary of Defense.
"(4)
"(A) the Secretary—
"(i) in the case of such a waiver, makes a determination in writing that such an extension is necessary to the national security interests of the United State [sic]; or
"(ii) in the case of such a suspension, makes a determination in writing that such an extension is vital to the national security interests of the United States; and
"(B) by not later than five days after the date on which such a determination is made, the Secretary submits to the Committees on Armed Services of the Senate and House of Representatives, the House Permanent Select Committee on Intelligence, and the Senate Select Committee on Intelligence notice of that determination, including a justification for that determination.
"(f)
"(1)
"(A) promote full compliance with the laws of the United States;
"(B) promote the exploitation of intelligence;
"(C) address the retention, maintenance, and disposition of videotapes or other electronic recordings, consistent with subparagraphs (A) and (B) and with the interests of justice; and
"(D) ensure the safety of all participants in the interrogations.
"(2)
Reports on Guantanamo Bay Prisoner Population
"(a)
"(b)
"(1) The majority leader and minority leader of the Senate.
"(2) The Chairman and Ranking Member on the Committee on Armed Services of the Senate.
"(3) The Chairman and Vice Chairman of the Select Committee on Intelligence of the Senate.
"(4) The Chairman and Vice Chairman of the Committee on Appropriations of the Senate.
"(5) The Speaker of the House of Representatives.
"(6) The minority leader of the House of Representatives.
"(7) The Chairman and Ranking Member on the Committee on Armed Services of the House of Representatives.
"(8) The Chairman and Vice Chairman of the Permanent Select Committee on Intelligence of the House of Representatives.
"(9) The Chairman and Ranking Member of the Committee on Appropriations of the House of Representatives.
"(c)
"(1) The name and country of origin of each detainee at the detention facility at Naval Station Guantanamo Bay, Cuba, as of the date of such report.
"(2) A current summary of the evidence, intelligence, and information used to justify the detention of each detainee listed under paragraph (1) at Naval Station Guantanamo Bay.
"(3) A current accounting of all the measures taken to transfer each detainee listed under paragraph (1) to the individual's country of citizenship or another country.
"(4) A current description of the number of individuals released or transferred from detention at Naval Station Guantanamo Bay who are confirmed or suspected of returning to terrorist activities after release or transfer from Naval Station Guantanamo Bay.
"(5) An assessment of any efforts by al Qaeda to recruit detainees released from detention at Naval Station Guantanamo Bay.
"(6) A summary of all known contact between any individual formerly detained at Naval Station Guantanamo Bay and any individual known or suspected to be associated with a foreign terrorist group, which contact included information or discussion about planning for or conduct of hostilities against the United States or its allies or the organizational, logistical, or resource needs or activities of any terrorist group or activity.
"(7) For each individual described in paragraph (4), the date on which such individual was released or transferred from Naval Station Guantanamo Bay and the date on which it is confirmed that such individual is suspected or confirmed of reengaging in terrorist activities.
"(8) The average period of time described in paragraph (7) for all the individuals described in paragraph (4).
"(d)
"(1) A description of the process that was previously used for screening the detainees described by subsection (c)(4) prior to their release or transfer from detention at Naval Station Guantanamo Bay, Cuba.
"(2) An assessment of the adequacy of that screening process for reducing the risk that detainees previously released or transferred from Naval Station Guantanamo Bay would return to terrorist activities after release or transfer from Naval Station Guantanamo Bay.
"(3) An assessment of lessons learned from previous releases and transfers of individuals who returned to terrorist activities for reducing the risk that detainees released or transferred from Naval Station Guantanamo Bay will return to terrorist activities after their release or transfer."
[
[Memorandum of President of the United States, July 17, 2009, 74 F.R. 35765, provided that the reporting function conferred upon the President by section 319(a), (c)(1) to (3) of
Policy on Role of Military Medical and Behavioral Science Personnel in Interrogation of Detainees
"(a)
"(b)
Detainee Interrogation, Status Review, and Treatment
"SEC. 1402. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.
"(a)
"(b)
"(c)
"SEC. 1405. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.
"(a)
"(1)
"(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)
"(3)
"(b)
"(1)
"(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)
"(c)
"(d)
"(1)
"(2)
"(A) The number of detainees whose status was reviewed.
"(B) The procedures used at each location.
"(e)
"(1)
"(2)
"(A)
"(B)
"(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)
"(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)
"[(3) Repealed.
"(4)
"(f)
"(g)
"(h)
"(1)
"(2)
"SEC. 1406. TRAINING OF IRAQI SECURITY FORCES REGARDING TREATMENT OF DETAINEES.
"(a)
"(1)
"(2)
"(3)
"(b)
"(1)
"(2)
"(c)
"(d)
[For termination, effective Dec. 31, 2021, of annual reporting provisions in section 1405(d) of
"SEC. 1002. UNIFORM STANDARDS FOR THE INTERROGATION OF PERSONS UNDER THE DETENTION OF THE DEPARTMENT OF DEFENSE.
"(a)
"(b)
"(c)
"SEC. 1005. PROCEDURES FOR STATUS REVIEW OF DETAINEES OUTSIDE THE UNITED STATES.
"(a)
"(1)
"(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)
"(3)
"(b)
"(1)
"(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)
"(c)
"(d)
"(1)
"(2)
"(A) The number of detainees whose status was reviewed.
"(B) The procedures used at each location.
"(e)
"(1)
"(2)
"(A)
"(B)
"(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)
"(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)
"[(3) Repealed.
"(4)
"(f)
"(g)
"(h)
"(1)
"(2)
"SEC. 1006. TRAINING OF IRAQI FORCES REGARDING TREATMENT OF DETAINEES.
"(a)
"(1)
"(2)
"(3)
"(b)
"(1)
"(2)
"(c)
"(d)
Sense of Congress Concerning Detainees; Actions To Prevent Abuse
"SEC. 1091. SENSE OF CONGRESS AND POLICY CONCERNING PERSONS DETAINED BY THE UNITED STATES.
"(a)
"(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)
"(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)
"SEC. 1092. ACTIONS TO PREVENT THE ABUSE OF DETAINEES.
"(a)
"(b)
"(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)
Executive Documents
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 (
(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 [
(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
(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.
(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.
(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.
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.
(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
(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.
This order shall be published in the Federal Register.
George W. Bush.
[For supersedure of provisions of Military Order of President of the United States, dated Nov. 13, 2001, set out above, related to trial by military commission, see Ex. Ord. No. 13425, Feb. 14, 2007, 72 F.R. 7737, set out as a note under
Ex. Ord. No. 13492. Review and Disposition of Individuals Detained At the Guantanamo Bay Naval Base and Closure of Detention Facilities
Ex. Ord. No. 13492, Jan. 22, 2009, 74 F.R. 4897, as amended by Ex. Ord. No. 13823, §2(a), Jan. 30, 2018, 83 F.R. 4831, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, in order to effect the appropriate disposition of individuals currently detained by the Department of Defense at the Guantanamo Bay Naval Base (Guantanamo) and promptly to close detention facilities at Guantanamo, consistent with the national security and foreign policy interests of the United States and the interests of justice, I hereby order as follows:
(a) "Common Article 3" means Article 3 of each of the Geneva Conventions.
(b) "Geneva Conventions" means:
(i) the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, August 12, 1949 (6 UST 3114);
(ii) the Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners of War, August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian Persons in Time of War, August 12, 1949 (6 UST 3516).
(c) "Individuals currently detained at Guantanamo" and "individuals covered by this order" mean individuals currently detained by the Department of Defense in facilities at the Guantanamo Bay Naval Base whom the Department of Defense has ever determined to be, or treated as, enemy combatants.
(a) Over the past 7 years, approximately 800 individuals whom the Department of Defense has ever determined to be, or treated as, enemy combatants have been detained at Guantanamo. The Federal Government has moved more than 500 such detainees from Guantanamo, either by returning them to their home country or by releasing or transferring them to a third country. The Department of Defense has determined that a number of the individuals currently detained at Guantanamo are eligible for such transfer or release.
(b) Some individuals currently detained at Guantanamo have been there for more than 6 years, and most have been detained for at least 4 years. In view of the significant concerns raised by these detentions, both within the United States and internationally, prompt and appropriate disposition of the individuals currently detained at Guantanamo and closure of the facilities in which they are detained would further the national security and foreign policy interests of the United States and the interests of justice. Merely closing the facilities without promptly determining the appropriate disposition of the individuals detained would not adequately serve those interests. To the extent practicable, the prompt and appropriate disposition of the individuals detained at Guantanamo should precede the closure of the detention facilities at Guantanamo.
(c) The individuals currently detained at Guantanamo have the constitutional privilege of the writ of habeas corpus. Most of those individuals have filed petitions for a writ of habeas corpus in Federal court challenging the lawfulness of their detention.
(d) It is in the interests of the United States that the executive branch undertake a prompt and thorough review of the factual and legal bases for the continued detention of all individuals currently held at Guantanamo, and of whether their continued detention is in the national security and foreign policy interests of the United States and in the interests of justice. The unusual circumstances associated with detentions at Guantanamo require a comprehensive interagency review.
(e) New diplomatic efforts may result in an appropriate disposition of a substantial number of individuals currently detained at Guantanamo.
(f) Some individuals currently detained at Guantanamo may have committed offenses for which they should be prosecuted. It is in the interests of the United States to review whether and how any such individuals can and should be prosecuted.
(g) It is in the interests of the United States that the executive branch conduct a prompt and thorough review of the circumstances of the individuals currently detained at Guantanamo who have been charged with offenses before military commissions pursuant to the Military Commissions Act of 2006,
(a) Scope and Timing of Review. A review of the status of each individual currently detained at Guantanamo (Review) shall commence immediately.
(b) Review Participants. The Review shall be conducted with the full cooperation and participation of the following officials:
(1) the Attorney General, who shall coordinate the Review;
(2) the Secretary of Defense;
(3) the Secretary of State;
(4) the Secretary of Homeland Security;
(5) the Director of National Intelligence;
(6) the Chairman of the Joint Chiefs of Staff; and
(7) other officers or full-time or permanent part-time employees of the United States, including employees with intelligence, counterterrorism, military, and legal expertise, as determined by the Attorney General, with the concurrence of the head of the department or agency concerned.
(c) Operation of Review. The duties of the Review participants shall include the following:
(1) Consolidation of Detainee Information. The Attorney General shall, to the extent reasonably practicable, and in coordination with the other Review participants, assemble all information in the possession of the Federal Government that pertains to any individual currently detained at Guantanamo and that is relevant to determining the proper disposition of any such individual. All executive branch departments and agencies shall promptly comply with any request of the Attorney General to provide information in their possession or control pertaining to any such individual. The Attorney General may seek further information relevant to the Review from any source.
(2) Determination of Transfer. The Review shall determine, on a rolling basis and as promptly as possible with respect to the individuals currently detained at Guantanamo, whether it is possible to transfer or release the individuals consistent with the national security and foreign policy interests of the United States and, if so, whether and how the Secretary of Defense may effect their transfer or release. The Secretary of Defense, the Secretary of State, and, as appropriate, other Review participants shall work to effect promptly the release or transfer of all individuals for whom release or transfer is possible.
(3) Determination of Prosecution. In accordance with United States law, the cases of individuals detained at Guantanamo not approved for release or transfer shall be evaluated to determine whether the Federal Government should seek to prosecute the detained individuals for any offenses they may have committed, including whether it is feasible to prosecute such individuals before a court established pursuant to Article III of the United States Constitution, and the Review participants shall in turn take the necessary and appropriate steps based on such determinations.
(4) Determination of Other Disposition. With respect to any individuals currently detained at Guantanamo whose disposition is not achieved under paragraphs (2) or (3) of this subsection, the Review shall select lawful means, consistent with the national security and foreign policy interests of the United States and the interests of justice, for the disposition of such individuals. The appropriate authorities shall promptly implement such dispositions.
(5) Consideration of Issues Relating to Transfer to the United States. The Review shall identify and consider legal, logistical, and security issues relating to the potential transfer of individuals currently detained at Guantanamo to facilities within the United States, and the Review participants shall work with the Congress on any legislation that may be appropriate.
(a) Nothing in this order shall prejudice the authority of the Secretary of Defense to determine the disposition of any detainees not covered by this order.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Ex. Ord. No. 13567. Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force
Ex. Ord. No. 13567, Mar. 7, 2011, 76 F.R. 13277, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Authorization for Use of Military Force of September 2001 (AUMF),
(b) This order is intended solely to establish, as a discretionary matter, a process to review on a periodic basis the executive branch's continued, discretionary exercise of existing detention authority in individual cases. It does not create any additional or separate source of detention authority, and it does not affect the scope of detention authority under existing law. Detainees at Guantánamo have the constitutional privilege of the writ of habeas corpus, and nothing in this order is intended to affect the jurisdiction of Federal courts to determine the legality of their detention.
(c) In the event detainees covered by this order are transferred from Guantánamo to another U.S. detention facility where they remain in law of war detention, this order shall continue to apply to them.
(a) Initial Review. For each detainee, an initial review shall commence as soon as possible but no later than 1 year from the date of this order. The initial review will consist of a hearing before a Periodic Review Board (PRB). The review and hearing shall follow a process that includes the following requirements:
(1) Each detainee shall be provided, in writing and in a language the detainee understands, with advance notice of the PRB review and an unclassified summary of the factors and information the PRB will consider in evaluating whether the detainee meets the standard set forth in section 2 of this order. The written summary shall be sufficiently comprehensive to provide adequate notice to the detainee of the reasons for continued detention.
(2) The detainee shall be assisted in proceedings before the PRB by a Government-provided personal representative (representative) who possesses the security clearances necessary for access to the information described in subsection (a)(4) of this section. The representative shall advocate on behalf of the detainee before the PRB and shall be responsible for challenging the Government's information and introducing information on behalf of the detainee. In addition to the representative, the detainee may be assisted in proceedings before the PRB by private counsel, at no expense to the Government.
(3) The detainee shall be permitted to (i) present to the PRB a written or oral statement; (ii) introduce relevant information, including written declarations; (iii) answer any questions posed by the PRB; and (iv) call witnesses who are reasonably available and willing to provide information that is relevant and material to the standard set forth in section 2 of this order.
(4) The Secretary of Defense, in coordination with other relevant Government agencies, shall compile and provide to the PRB all information in the detainee disposition recommendations produced by the Task Force established under Executive Order 13492 that is relevant to the determination whether the standard in section 2 of this order has been met and on which the Government seeks to rely for that determination. In addition, the Secretary of Defense, in coordination with other relevant Government agencies, shall compile any additional information relevant to that determination, and on which the Government seeks to rely for that determination, that has become available since the conclusion of the Executive Order 13492 review. All mitigating information relevant to that determination must be provided to the PRB.
(5) The information provided in subsection (a)(4) of this section shall be provided to the detainee's representative. In exceptional circumstances where it is necessary to protect national security, including intelligence sources and methods, the PRB may determine that the representative must receive a sufficient substitute or summary, rather than the underlying information. If the detainee is represented by private counsel, the information provided in subsection (a)(4) of this section shall be provided to such counsel unless the Government determines that the need to protect national security, including intelligence sources and methods, or law enforcement or privilege concerns, requires the Government to provide counsel with a sufficient substitute or summary of the information. A sufficient substitute or summary must provide a meaningful opportunity to assist the detainee during the review process.
(6) The PRB shall conduct a hearing to consider the information described in subsection (a)(4) of this section, and other relevant information provided by the detainee or the detainee's representative or counsel, to determine whether the standard in section 2 of this order is met. The PRB shall consider the reliability of any information provided to it in making its determination.
(7) The PRB shall make a prompt determination, by consensus and in writing, as to whether the detainee's continued detention is warranted under the standard in section 2 of this order. If the PRB determines that the standard is not met, the PRB shall also recommend any conditions that relate to the detainee's transfer. The PRB shall provide a written summary of any final determination in unclassified form to the detainee, in a language the detainee understands, within 30 days of the determination when practicable.
(8) The Secretary of Defense shall establish a secretariat to administer the PRB review and hearing process. The Director of National Intelligence shall assist in preparing the unclassified notice and the substitutes or summaries described above. Other executive departments and agencies shall assist in the process of providing the PRB with information required for the review processes detailed in this order.
(b) Subsequent Full Review. The continued detention of each detainee shall be subject to subsequent full reviews and hearings by the PRB on a triennial basis. Each subsequent review shall employ the procedures set forth in section 3(a) of this order.
(c) File Reviews. The continued detention of each detainee shall also be subject to a file review every 6 months in the intervening years between full reviews. This file review will be conducted by the PRB and shall consist of a review of any relevant new information related to the detainee compiled by the Secretary of Defense, in coordination with other relevant agencies, since the last review and, as appropriate, information considered during any prior PRB review. The detainee shall be permitted to make a written submission in connection with each file review. If, during the file review, a significant question is raised as to whether the detainee's continued detention is warranted under the standard in section 2 of this order, the PRB will promptly convene a full review pursuant to the standards in section 3(a) of this order.
(d) Review of PRB Determinations. The Review Committee (Committee), as defined in section 9(d) of this order, shall conduct a review if (i) a member of the Committee seeks review of a PRB determination within 30 days of that determination; or (ii) consensus within the PRB cannot be reached.
(b) The Secretary of State, in consultation with the Secretary of Defense, shall be responsible for obtaining appropriate security and humane treatment assurances regarding any detainee to be transferred to another country, and for determining, after consultation with members of the Committee, that it is appropriate to proceed with the transfer.
(c) The Secretary of State shall evaluate humane treatment assurances in all cases, consistent with the recommendations of the Special Task Force on Interrogation and Transfer Policies established by Executive Order 13491 of January 22, 2009.
(1) the status of transfer efforts for any detainee who has been subject to the periodic review under section 3 of this order, whose continued detention has been determined not to be warranted, and who has not been transferred more than 6 months after the date of such determination;
(2) the status of transfer efforts for any detainee whose petition for a writ of habeas corpus has been granted by a U.S. Federal court with no pending appeal and who has not been transferred;
(3) the status of transfer efforts for any detainee who has been designated for transfer or conditional detention by the Executive Order 13492 review and who has not been transferred; and
(4) the security and other conditions in the countries to which detainees might be transferred, including a review of any suspension of transfers to a particular country, in order to determine whether further steps to facilitate transfers are appropriate or to provide a recommendation to the President regarding whether continuation of any such suspension is warranted.
(b) After completion of the initial reviews under section 3(a) of this order, and at least once every 4 years thereafter, the Committee shall review whether a continued law of war detention policy remains consistent with the interests of the United States, including national security interests.
(b) "Periodic Review Board" means: a board composed of senior officials tasked with fulfilling the functions described in section 3 of this order, one appointed by each of the following departments and offices: the Departments of State, Defense, Justice, and Homeland Security, as well as the Offices of the Director of National Intelligence and the Chairman of the Joint Chiefs of Staff.
(c) "Conditional Detention" means: the status of those detainees designated by the Executive Order 13492 review as eligible for transfer if one of the following conditions is satisfied: (1) the security situation improves in Yemen; (2) an appropriate rehabilitation program becomes available; or (3) an appropriate third-country resettlement option becomes available.
(d) "Review Committee" means: a committee composed of the Secretary of State, the Secretary of Defense, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the Chairman of the Joint Chiefs of Staff.
(b) This order shall be implemented subject to the availability of necessary appropriations and consistent with applicable law including: the Convention Against Torture; Common Article 3 of the Geneva Conventions; the Detainee Treatment Act of 2005; and other laws relating to the transfer, treatment, and interrogation of individuals detained in an armed conflict.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) Nothing in this order, and no determination made under this order, shall be construed as grounds for release of detainees covered by this order into the United States.
Barack Obama.
Ex. Ord. No. 13823. Protecting America Through Lawful Detention of Terrorists
Ex. Ord. No. 13823, Jan. 30, 2018, 83 F.R. 4831, provided:
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
(b) Following the terrorist attacks of September 11, 2001, the 2001 Authorization for Use of Military Force (AUMF) and other authorities authorized the United States to detain certain persons who were a part of or substantially supported al-Qa'ida, the Taliban, or associated forces engaged in hostilities against the United States or its coalition partners. Today, the United States remains engaged in an armed conflict with al-Qa'ida, the Taliban, and associated forces, including with the Islamic State of Iraq and Syria.
(c) The detention operations at the U.S. Naval Station Guantánamo Bay are legal, safe, humane, and conducted consistent with United States and international law.
(d) Those operations are continuing given that a number of the remaining individuals at the detention facility are being prosecuted in military commissions, while others must be detained to protect against continuing, significant threats to the security of the United States, as determined by periodic reviews.
(e) Given that some of the current detainee population represent the most difficult and dangerous cases from among those historically detained at the facility, there is significant reason for concern regarding their reengagement in hostilities should they have the opportunity.
(b) Detention operations at U.S. Naval Station Guantánamo Bay shall continue to be conducted consistent with all applicable United States and international law, including the Detainee Treatment Act of 2005 [see Short Title note set out under
(c) In addition, the United States may transport additional detainees to U.S. Naval Station Guantánamo Bay when lawful and necessary to protect the Nation.
(d) Within 90 days of the date of this order, the Secretary of Defense shall, in consultation with the Secretary of State, the Attorney General, the Secretary of Homeland Security, the Director of National Intelligence, and the heads of any other appropriate executive departments and agencies as determined by the Secretary of Defense, recommend policies to the President regarding the disposition of individuals captured in connection with an armed conflict, including policies governing transfer of individuals to U.S. Naval Station Guantánamo Bay.
(e) Unless charged in or subject to a judgment of conviction by a military commission, any detainees transferred to U.S. Naval Station Guantánamo Bay after the date of this order shall be subject to the procedures for periodic review established in Executive Order 13567 of March 7, 2011 (Periodic Review of Individuals Detained at Guantánamo Bay Naval Station Pursuant to the Authorization for Use of Military Force) [set out above], to determine whether continued law of war detention is necessary to protect against a significant threat to the security of the United States.
(b) Nothing in this order shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful permanent residents of the United States, or any persons who are captured or arrested in the United States.
(c) Nothing in this order shall prevent the Attorney General from, as appropriate, investigating, detaining, and prosecuting a terrorist subject to the criminal laws and jurisdiction of the United States.
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
Donald J. Trump.
Amendments to the Manual for Courts-Martial, United States
Additions and amendments to the Manual for Courts-Martial, United States, prescribed by Ex. Ord. No. 12473, Apr. 13, 1984, 49 F.R. 17152, were contained in the following:
2023—Ex. Ord. No. 14103, July 28, 2023, 88 F.R. 50535.
2022—Ex. Ord. No. 14062, Jan. 26, 2022, 87 F.R. 4763.
2018—Ex. Ord. No. 13825, Mar. 1, 2018, 83 F.R. 9889.
2016—Ex. Ord. No. 13730, May 20, 2016, 81 F.R. 33331; Ex. Ord. No. 13740, Sept. 16, 2016, 81 F.R. 65175.
2015—Ex. Ord. No. 13696, June 17, 2015, 80 F.R. 35783.
2014—Ex. Ord. No. 13669, June 13, 2014, 79 F.R. 34999.
2013—Ex. Ord. No. 13643, May 15, 2013, 78 F.R. 29559.
2011—Ex. Ord. No. 13593, Dec. 13, 2011, 76 F.R. 78451.
2010—Ex. Ord. No. 13552, Aug. 31, 2010, 75 F.R. 54263.
2008—Ex. Ord. No. 13468, July 24, 2008, 73 F.R. 43827.
2007—Ex. Ord. No. 13430, Apr. 18, 2007, 72 F.R. 20213; Ex. Ord. No. 13447, Sept. 28, 2007, 72 F.R. 56179.
2005—Ex. Ord. No. 13387, Oct. 14, 2005, 70 F.R. 60697.
2004—Ex. Ord. No. 13365, Dec. 3, 2004, 69 F.R. 71333.
2002—Ex. Ord. No. 13262, Apr. 11, 2002, 67 F.R. 18773.
1999—Ex. Ord. No. 13140, Oct. 6, 1999, 64 F.R. 55115.
1998—Ex. Ord. No. 13086, May 27, 1998, 63 F.R. 30065.
1995—Ex. Ord. No. 12960, May 12, 1995, 60 F.R. 26647.
1994—Ex. Ord. No. 12936, Nov. 10, 1994, 59 F.R. 59075.
1993—Ex. Ord. No. 12888, Dec. 23, 1993, 58 F.R. 69153.
1991—Ex. Ord. No. 12767, June 27, 1991, 56 F.R. 30284.
1990—Ex. Ord. No. 12708, Mar. 23, 1990, 55 F.R. 11353.
1987—Ex. Ord. No. 12586, Mar. 3, 1987, 52 F.R. 7103.
1986—Ex. Ord. No. 12550, Feb. 19, 1986, 51 F.R. 6497.
1984—Ex. Ord. No. 12484, July 13, 1984, 49 F.R. 28825.
§802. Art. 2. Persons subject to this chapter
(a) The following persons are subject to this chapter:
(1) Members of a regular component of the armed forces, and members of the Space Force on active duty under
(2) Cadets, aviation cadets, and midshipmen.
(3)(A) While on inactive-duty training and during any of the periods specified in subparagraph (B)—
(i) members of a reserve component or the Space Force; and
(ii) members of the Army National Guard of the United States or the Air National Guard of the United States, but only when in Federal service.
(B) The periods referred to in subparagraph (A) are the following:
(i) Travel to and from the inactive-duty training site of the member, pursuant to orders or regulations.
(ii) Intervals between consecutive periods of inactive-duty training on the same day, pursuant to orders or regulations.
(iii) Intervals between inactive-duty training on consecutive days, pursuant to orders or regulations.
(4) Retired members of a regular component of the armed forces who are entitled to pay.
(5) Retired members of a reserve component, or retired members of the Space Force who qualified for a non-regular retirement and are receiving retired pay, who are receiving hospitalization from an armed force.
(6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.
(7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
(8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
(9) Prisoners of war in custody of the armed forces.
(10) In time of declared war or a contingency operation, persons serving with or accompanying an armed force in the field.
(11) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons serving with, employed by, or accompanying the armed forces outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(12) Subject to any treaty or agreement to which the United States is or may be a party or to any accepted rule of international law, persons within an area leased by or otherwise reserved or acquired for the use of the United States which is under the control of the Secretary concerned and which is outside the United States and outside the Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
(13) Individuals belonging to one of the eight categories enumerated in Article 4 of the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316), who violate the law of war.
(14) Retired members of the Space Force who qualified for a regular retirement under
(b) The voluntary enlistment of any person who has the capacity to understand the significance of enlisting in the armed forces shall be valid for purposes of jurisdiction under subsection (a) and a change of status from civilian to member of the armed forces shall be effective upon the taking of the oath of enlistment.
(c) Notwithstanding any other provision of law, a person serving with an armed force who—
(1) submitted voluntarily to military authority;
(2) met the mental competency and minimum age qualifications of
(3) received military pay or allowances; and
(4) performed military duties;
is subject to this chapter until such person's active service has been terminated in accordance with law or regulations promulgated by the Secretary concerned.
(d)(1) A member of a reserve component or the Space Force who is not on active duty and who is made the subject of proceedings under section 815 (article 15) or section 830 (article 30) with respect to an offense against this chapter may be ordered to active duty involuntarily for the purpose of—
(A) a preliminary hearing under
(B) trial by court-martial; or
(C) nonjudicial punishment under
(2) A member of a reserve component or the Space Force may not be ordered to active duty under paragraph (1) except with respect to an offense committed while the member was—
(A) on active duty; or
(B) on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal service.
(3) Authority to order a member to active duty under paragraph (1) shall be exercised under regulations prescribed by the President.
(4) A member may be ordered to active duty under paragraph (1) only by a person empowered to convene general courts-martial in a regular component of the armed forces or the Space Force.
(5) A member ordered to active duty under paragraph (1), unless the order to active duty was approved by the Secretary concerned, may not—
(A) be sentenced to confinement; or
(B) be required to serve a punishment consisting of any restriction on liberty during a period other than a period of inactive-duty training or active duty (other than active duty ordered under paragraph (1)).
(e) The provisions of this section are subject to
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 802 | 50:552. | May 5, 1950, ch. 169, §1 (Art. 2), |
In clause (1), the words "Members of" are substituted for the words "All persons belonging to". The words "all" and "the same" are omitted as surplusage. The word "when" is inserted after the word "dates".
In clauses (1) and (8), the words "of the United States" are omitted as surplusage.
In clause (3), the words "Members of a reserve component" are substituted for the words "Reserve personnel". The word "orders" in the last clause is omitted as surplusage.
In clause (4), the word "receive" is omitted as surplusage.
In clauses (4) and (5), the word "members" is substituted for the word "personnel".
In clause (8), the word "members" is substituted for the word "personnel".
In clauses (11) and (12), the word "outside" is substituted for the word "without" wherever it occurs. The words "the continental limits of" are omitted, since
In clause (12), the words "Secretary concerned" are substituted for the words "Secretary of a Department".
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 802(11), (12) | 50:552(11) and (12). | Aug. 1, 1956, ch. 852, §23, |
The Act of August 1, 1956, was enacted during the pendency of the codification bill.
Editorial Notes
Codification
Another section 1722(f) of
Amendments
2023—Subsec. (a)(1).
Subsec. (a)(3)(A)(i).
Subsec. (a)(5).
Subsec. (a)(14).
Subsec. (d)(1).
Subsec. (d)(2).
Subsec. (d)(4).
2016—Subsec. (a)(3).
2013—Subsec. (d)(1)(A).
2009—Subsec. (a)(13).
2006—Subsec. (a)(10).
Subsec. (a)(13).
1996—Subsec. (e).
1988—Subsec. (a)(11), (12).
1986—Subsec. (a)(3).
Subsec. (d).
1983—Subsec. (a)(11), (12).
Subsec. (b).
1980—Subsec. (a)(8).
1979—
1966—
1962—
1960—
1959—
Statutory Notes and Related Subsidiaries
Change of Name
The Secretary of Health, Education, and Welfare was redesignated the Secretary of Health and Human Services by
Effective Date of 2016 Amendment
Amendment by
Effective Date of 2013 Amendment
[
Effective Date of 1986 Amendment
"(1) the last day of the 120-day period beginning on the date of the enactment of this Act [Nov. 14, 1986]; or
"(2) the date specified in an Executive order for such amendments to take effect."
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1980 Amendment
Amendment by
Repeals
The directory language of, but not the amendment made by,
Applicability of Uniform Code of Military Justice to Members of the Armed Forces Ordered to Duty Overseas in Inactive Duty for Training Status
Advisory Committee on Criminal Law Jurisdiction Over Civilians Accompanying Armed Forces in Time of Armed Conflict
Executive Documents
Transfer of Functions
All functions of Public Health Service, of the Surgeon General of the Public Health Service, and of all other officers and employees of the Public Health Service, and all functions of all agencies of or in the Public Health Service transferred to Secretary of Health, Education, and Welfare by 1966 Reorg. Plan No. 3, 31 F.R. 8855,
Ex. Ord. No. 10631. Code of Conduct for Members of the Armed Forces
Ex. Ord. No. 10631, Aug. 17, 1955, 20 F.R. 6057, as amended by Ex. Ord. No. 11382, Nov. 28, 1967, 32 F.R. 16247; Ex. Ord. No. 12017, Nov. 3, 1977, 42 F.R. 57941; Ex. Ord. No. 12633, Mar. 28, 1988, 53 F.R. 10355; Ex. Ord. No. 13286, §76, Feb. 28, 2003, 68 F.R. 106231, provided:
By virtue of the authority vested in me as President of the United States, and as Commander in Chief of the armed forces of the United States, I hereby prescribe the Code of Conduct for Members of the Armed Forces of the United States which is attached to this order and hereby made a part thereof.
All members of the Armed Forces of the United States are expected to measure up to the standards embodied in this Code of Conduct while in combat or in captivity. To ensure achievement of these standards, members of the armed forces liable to capture shall be provided with specific training and instruction designed to better equip them to counter and withstand all enemy efforts against them, and shall be fully instructed as to the behavior and obligations expected of them during combat or captivity.
The Secretary of Defense (and the Secretary of Homeland Security with respect to the Coast Guard except when it is serving as part of the Navy) shall take such action as is deemed necessary to implement this order and to disseminate and make the said Code known to all members of the armed forces of the United States.
Code of Conduct for Members of the United States Armed Forces
I
I am an American, fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense.
II
I will never surrender of my own free will. If in command, I will never surrender the members of my command while they still have the means to resist.
III
If I am captured I will continue to resist by all means available. I will make every effort to escape and aid others to escape. I will accept neither parole nor special favors from the enemy.
IV
If I become a prisoner of war, I will keep faith with my fellow prisoners. I will give no information or take part in any action which might be harmful to my comrades. If I am senior, I will take command. If not, I will obey the lawful orders of those appointed over me and will back them up in every way.
V
When questioned, should I become a prisoner of war, I am required to give name, rank, service number and date of birth. I will evade answering further questions to the utmost of my ability. I will make no oral or written statements disloyal to my country and its allies or harmful to their cause.
VI
I will never forget that I am an American, fighting for freedom, responsible for my actions, and dedicated to the principles which made my country free. I will trust in my God and in the United States of America.
§803. Art. 3. Jurisdiction to try certain personnel
(a) Subject to
(b) Each person discharged from the armed forces who is later charged with having fraudulently obtained his discharge is, subject to
(c) No person who has deserted from the armed forces may be relieved from amenability to the jurisdiction of this chapter by virtue of a separation from any later period of service.
(d) A member of a reserve component or the Space Force who is subject to this chapter is not, by virtue of the termination of a period of active duty or inactive-duty training, relieved from amenability to the jurisdiction of this chapter for an offense against this chapter committed during such period of active duty or inactive-duty training.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 803(a) 803(b) 803(c) |
50:553(a). 50:553(b). 50:553(c). |
May 5, 1950, ch. 169, §1 (Art. 3), |
In subsection (a), the words "the provisions of" are omitted as surplusage. The words "no * * * may" are substituted for the words "any * * * shall not". The word "for" is substituted for the word "of" before the words "five years". The words "of a State, a Territory, or" are substituted for the words "any State or Territory thereof or of". The word "court-martial" is substituted for the word "courts-martial".
In subsection (b), the words "Each person" are substituted for the words "All persons". The words "who is later" are substituted for the word "subsequently". The words "his discharge is" are substituted for the words "said discharge shall * * * be". The words "the provisions of" are omitted as surplusage. The word "is" is substituted for the words "shall * * * be". The words "he is" are substituted for the words "they shall be". The word "before" is substituted for the words "prior to".
In subsection (c), the words "No * * * may" are substituted for the words "Any * * * shall not". The word "later" is substituted for the word "subsequent".
Editorial Notes
Codification
Another section 1722(f) of
Amendments
2023—Subsec. (d).
1992—Subsec. (a).
1986—Subsec. (d).
Statutory Notes and Related Subsidiaries
Effective Date of 1992 Amendment
Effective Date of 1986 Amendment
Amendment by
§804. Art. 4. Dismissed officer's right to trial by court-martial
(a) If any commissioned officer, dismissed by order of the President, makes a written application for trial by court-martial, setting forth, under oath, that he has been wrongfully dismissed, the President, as soon as practicable, shall convene a general court-martial to try that officer on the charges on which he was dismissed. A court-martial so convened has jurisdiction to try the dismissed officer on those charges, and he shall be considered to have waived the right to plead any statute of limitations applicable to any offense with which he is charged. The court-martial may, as part of its sentence, adjudge the affirmance of the dismissal, but if the court-martial acquits the accused or if the sentence adjudged, as finally approved or affirmed, does not include dismissal or death, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue.
(b) If the President fails to convene a general court-martial within six months from the presentation of an application for trial under this article, the Secretary concerned shall substitute for the dismissal ordered by the President a form of discharge authorized for administrative issue.
(c) If a discharge is substituted for a dismissal under this article, the President alone may reappoint the officer to such commissioned grade and with such rank as, in the opinion of the President, that former officer would have attained had he not been dismissed. The reappointment of such a former officer shall be without regard to the existence of a vacancy and shall affect the promotion status of other officers only insofar as the President may direct. All time between the dismissal and the reappointment shall be considered as actual service for all purposes, including the right to pay and allowances.
(d) If an officer is discharged from any armed force by administrative action or is dropped from the rolls by order of the President, he has no right to trial under this article.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 804(a) 804(b) |
50:554(a). 50:554(b). |
May 5, 1950, ch. 169, §1 (Art. 4), |
| 804(c) | 50:554(c). | |
| 804(d) | 50:554(d). |
In subsection (a), the word "If" is substituted for the word "When". The word "commissioned" is inserted before the word "officer". The word "considered" is substituted for the word "held".
In subsections (a) and (b), the words "Secretary concerned" are substituted for the words "Secretary of the Department".
In subsection (c), the word "If" is substituted for the word "Where". The words "the authority of" are omitted as surplusage. The words "grade and with such rank" are substituted for the words "rank and precedence", since a person is appointed to a grade, not to a position of precedence, and the word "rank" is the accepted military word denoting the general idea of precedence. The words "the existence of a" are substituted for the word "position" for clarity. The word "receive" is omitted as surplusage.
In subsection (d), the word "If" is substituted for the word "When". The words "he has no" are substituted for the words "there shall not be a".
Executive Documents
Delegation of Functions
For delegation to Secretary of Homeland Security of certain authority vested in President by this section, see section 2 of Ex. Ord. No. 10637, Sept. 16, 1955, 20 F.R. 7025, as amended, set out as a note under
§805. Art. 5. Territorial applicability of this chapter
This chapter applies in all places.
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 805 | 50:555. | May 5, 1950, ch. 169, §1 (Art. 5), |
The word "applies" is substituted for the words "shall be applicable".
§806. Art. 6. Judge advocates and legal officers
(a) The assignment for duty of judge advocates of the Army, Navy, Air Force, and Coast Guard shall be made upon the recommendation of the Judge Advocate General of the armed force of which they are members. The assignment for duty of judge advocates of the Marine Corps shall be made by direction of the Commandant of the Marine Corps. The Judge Advocates General, and within the Marine Corps the Staff Judge Advocate to the Commandant of the Marine Corps, or senior members of their staffs, shall make frequent inspections in the field in supervision of the administration of military justice.
(b) Convening authorities shall at all times communicate directly with their staff judge advocates or legal officers in matters relating to the administration of military justice; and the staff judge advocate or legal officer of any command is entitled to communicate directly with the staff judge advocate or legal officer of a superior or subordinate command, or with the Judge Advocate General.
(c)(1) No person who, with respect to a case, serves in a capacity specified in paragraph (2) may later serve as a staff judge advocate or legal officer to any reviewing or convening authority upon the same case.
(2) The capacities referred to in paragraph (1) are, with respect to the case involved, any of the following:
(A) Preliminary hearing officer, court member, military judge, military magistrate, or appellate judge.
(B) Counsel who have acted in the same case or appeared in any proceeding before a military judge, military magistrate, preliminary hearing officer, or appellate court.
(d)(1) A judge advocate who is assigned or detailed to perform the functions of a civil office in the Government of the United States under
(2) The Secretary of Defense, and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating as a service in the Navy, shall prescribe regulations providing that reimbursement may be a condition of assistance by judge advocates assigned or detailed under
(Aug. 10, 1956, ch. 1041,
| Revised section | Source (U.S. Code) | Source (Statutes at Large) |
|---|---|---|
| 806(a) 806(b) |
50:556(a). 50:556(b). |
May 5, 1950, ch. 169, §1 (Art. 6), |
| 806(c) | 50:556(c). |
In subsection (b), the word "entitled" is substituted for the word "authorized".
In subsection (c), the words "may later" are substituted for the words "shall subsequently".
Editorial Notes
Amendments
2016—Subsec. (c).
2013—Subsec. (a).
2002—Subsec. (d)(2).
1986—Subsec. (d).
1983—Subsec. (a).
1968—Subsec. (c).
1967—Subsec. (a).
Statutory Notes and Related Subsidiaries
Effective Date of 2016 Amendment
Amendment by
Effective Date of 2002 Amendment
Amendment by
Effective Date of 1986 Amendment
"(1) shall take effect on the date of the enactment of this Act [Nov. 14, 1986]; and
"(2) may not be construed to invalidate an action taken by a judge advocate, pursuant to an assignment or detail under
Effective Date of 1983 Amendment
Amendment by
Effective Date of 1968 Amendment
Amendment by
§806a. Art. 6a. Investigation and disposition of matters pertaining to the fitness of military judges
(a) The President shall prescribe procedures for the investigation and disposition of charges, allegations, or information pertaining to the fitness of a military appellate judge, military judge, or military magistrate to perform the duties of the position involved. To the extent practicable, the procedures shall be uniform for all armed forces.
(b) The President shall transmit a copy of the procedures prescribed pursuant to this section to the Committee on Armed Services of the Senate and the Committee on Armed Services of the House of Representatives.
(Added
Editorial Notes
Amendments
2016—Subsec. (a).
1999—Subsec. (b).
1996—Subsec. (b).
Statutory Notes and Related Subsidiaries
Effective Date of 2016 Amendment
Amendment by
§806b. Art. 6b. Rights of the victim of an offense under this chapter
(a)
(1) The right to be reasonably protected from the accused.
(2) The right to reasonable, accurate, and timely notice of any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused.
(B) A preliminary hearing under
(C) A court-martial relating to the offense.
(D) A post-trial motion, filing, or hearing that may address the finding or sentence of a court-martial with respect to the accused, unseal privileged or private information of the victim, or result in the release of the accused.
(E) A public proceeding of the service clemency and parole board relating to the offense.
(F) The release or escape of the accused, unless such notice may endanger the safety of any person.
(3) The right not to be excluded from any public hearing or proceeding described in paragraph (2) unless the military judge or preliminary hearing officer, as applicable, after receiving clear and convincing evidence, determines that testimony by the victim of an offense under this chapter would be materially altered if the victim heard other testimony at that hearing or proceeding.
(4) The right to be reasonably heard at any of the following:
(A) A public hearing concerning the continuation of confinement prior to trial of the accused.
(B) A sentencing hearing relating to the offense.
(C) A public proceeding of the service clemency and parole board relating to the offense.
(5) The reasonable right to confer with the counsel representing the Government at any proceeding described in paragraph (2).
(6) The right to receive restitution as provided in law.
(7) The right to proceedings free from unreasonable delay.
(8) The right to be informed in a timely manner of any plea agreement, separation-in-lieu-of-trial agreement, or non-prosecution agreement relating to the offense, unless providing such information would jeopardize a law enforcement proceeding or would violate the privacy concerns of an individual other than the accused.
(9) The right to be treated with fairness and with respect for the dignity and privacy of the victim of an offense under this chapter.
(b)
(c)
(d)
(1) to authorize a cause of action for damages;
(2) to create, to enlarge, or to imply any duty or obligation to any victim of an offense under this chapter or other person for the breach of which the United States or any of its officers or employees could be held liable in damages; or
(3) to impair the exercise of discretion under
(e)
(2) If the victim of an offense under this chapter is subject to an order to submit to a deposition, notwithstanding the availability of the victim to testify at the court-martial trying the accused for the offense, the victim may petition the Court of Criminal Appeals for a writ of mandamus to quash such order.
(3)(A) A petition for a writ of mandamus described in this subsection shall be forwarded directly to the Court of Criminal Appeals, by such means as may be prescribed by the President, subject to
(B) To the extent practicable, a petition for a writ of mandamus described in this subsection shall have priority over all other proceedings before the Court of Criminal Appeals.
(C) Review of any decision of the Court of Criminal Appeals on a petition for a writ of mandamus described in this subsection shall have priority in the Court of Appeals for the Armed Forces, as determined under the rules of the Court of Appeals for the Armed Forces.
(4) Paragraph (1) applies with respect to the protections afforded by the following:
(A) This section (article).
(B) Section 832 (article 32) of this title.
(C) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim's sexual background.
(D) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.
(E) Military Rule of Evidence 514, relating to the victim advocate-victim privilege.
(F) Military Rule of Evidence 615, relating to the exclusion of witnesses.
(f)
(2) If requested by an alleged victim who is subject to a request for interview under paragraph (1), any interview of the victim by counsel for the accused shall take place only in the presence of the counsel for the Government, a counsel for the victim, or, if applicable, a victim advocate.
(Added
Editorial Notes
Amendments
2021—Subsec. (a)(2)(D) to (F).
Subsec. (a)(8), (9).
2017—Subsec. (b).
Subsec. (e)(3).
2016—Subsec. (a)(3).
Subsec. (c).
Subsec. (d)(3).
Subsec. (f).
2015—Subsec. (e).
"(1) If the victim of an offense under this chapter believes that a court-martial ruling violates the victim's rights afforded by a Military Rule of Evidence specified in paragraph (2), the victim may petition the Court of Criminal Appeals for a writ of mandamus to require the court-martial to comply with the Military Rule of Evidence.
"(2) Paragraph (1) applies with respect to the protections afforded by the following:
"(A) Military Rule of Evidence 513, relating to the psychotherapist-patient privilege.
"(B) Military Rule of Evidence 412, relating to the admission of evidence regarding a victim's sexual background."
2014—Subsec. (b).
Subsec. (c).
Subsec. (e).
Statutory Notes and Related Subsidiaries
Effective Date of 2017 Amendment
Amendment by section 531(a) of
Amendment by section 1081(c)(1)(B) of
Effective Date of 2016 Amendment
Amendment by
Notice to Victims of Alleged Sex-Related Offense of Pendency of Further Administrative Action Following a Determination Not To Refer to Trial by Court-Martial
Implementation
"(1)
"(A) the Secretary of Defense shall recommend to the President changes to the Manual for Courts-Martial to implement
"(B) the Secretary of Defense and Secretary of Homeland Security (with respect to the Coast Guard when it is not operating as a service in the Navy) shall prescribe such regulations as each such Secretary considers appropriate to implement such section.
"(2)
"(A) Mechanisms for ensuring that victims are notified of, and accorded, the rights specified in
"(B) Mechanisms for ensuring that members of the Armed Forces and civilian personnel of the Department of Defense and the Coast Guard make their best efforts to ensure that victims are notified of, and accorded, the rights specified in such section.
"(C) Mechanisms for the enforcement of such rights, including mechanisms for application for such rights and for consideration and disposition of applications for such rights.
"(D) The designation of an authority within each Armed Force to receive and investigate complaints relating to the provision or violation of such rights.
"(E) Disciplinary sanctions for members of the Armed Forces and other personnel of the Department of Defense and Coast Guard who willfully or wantonly fail to comply with requirements relating to such rights."