§ 801. Article 1. Definitions

§ 801. Article 1. Definitions

(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 section 826(c) of this title (article 26(c)) who is detailed under section 826(a) or section 830a of this title (article 26(a) or 30a).

(11) The term “military magistrate” means a commissioned officer certified for duty as a military magistrate in accordance with section 826a of this title (article 26a).

(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 (42 U.S.C. 2014(y)).

(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), the standalone offense of child pornography punishable under section 934 (article 134), 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;

(B) a conspiracy to commit an offense specified in subparagraph (A) as punishable under section 881 of this title (article 81);

(C) a solicitation to commit an offense specified in subparagraph (A) as punishable under section 882 of this title (article 82); or

(D) an attempt to commit an offense specified in subparagraph (A), (B), or (C) as punishable under section 880 of this title (article 80).

(18) The term “special trial counsel” means a judge advocate detailed as a special trial counsel in accordance with section 824a of this title (article 24a) and includes a judge advocate appointed as a lead special trial counsel pursuant to section 1044f(a)(2) of this title.

(Aug. 10, 1956, ch. 1041, 70A Stat. 36; Pub. L. 89–670, § 10(g), Oct. 15, 1966, 80 Stat. 948; Pub. L. 90–179, § 1(1), (2), Dec. 8, 1967, 81 Stat. 545; Pub. L. 90–632, § 2(1), Oct. 24, 1968, 82 Stat. 1335; Pub. L. 98–209, §§ 2(a), 6(a), Dec. 6, 1983, 97 Stat. 1393, 1400; Pub. L. 100–180, div. A, title XII, § 1231(17), Dec. 4, 1987, 101 Stat. 1161; Pub. L. 100–456, div. A, title XII, § 1233(f)(1), Sept. 29, 1988, 102 Stat. 2057; Pub. L. 104–106, div. A, title XI, § 1141(b), Feb. 10, 1996, 110 Stat. 467; Pub. L. 107–296, title XVII, § 1704(b)(2), Nov. 25, 2002, 116 Stat. 2314; Pub. L. 109–241, title II, § 218(a), July 11, 2006, 120 Stat. 526; Pub. L. 114–328, div. E, title LI, § 5101, Dec. 23, 2016, 130 Stat. 2894; Pub. L. 115–91, div. A, title X, § 1081(a)(21), (c)(1)(A), Dec. 12, 2017, 131 Stat. 1595, 1597; Pub. L. 117–81, div. A, title V, § 533, Dec. 27, 2021, 135 Stat. 1695; Pub. L. 117–263, div. A, title V, § 541(a)(1), (b)(1), Dec. 23, 2022, 136 Stat. 2579, 2580.)

The words “In this chapter” are substituted for the introductory clause.

In the introductory clause and throughout the revised chapter the word “chapter” is substituted for the word “code”.

Clauses (1), (2), and (5) of 50:551 are omitted as respectively covered by the definitions in clauses (4), (6), and (14) of section 101 of this title. The words “commissioned officer” are substituted for the word “officer” for clarity throughout this chapter, since the latter term was defined in the limited sense of commissioned officer in clause (5) of 50:551, and is now covered by section 101(14) of this title.

In clauses (1), (4)–(7), and (9)–(12) of the revised section, the word “means” is substituted for the words “shall be construed to refer to” and “shall be construed to refer * * * to”.

In clause (1), the words “service in” are substituted for the words “part of” to conform to section 1 of title 14. The words “Department of the Treasury” are substituted for the words “Treasury Department”.

Clauses (3) and (4) are inserted for clarity.

In clause (6), the words “the United States Air Force Academy” are inserted to reflect its establishment by the Air Force Academy Act (63 Stat. 47).

In clause (8), the word “refers” is substituted for the words “shall be construed to refer”.

In clause (12), the words “Marine Corps” are inserted to make explicit that the clause applies to the Marine Corps. The word “commissioned” is inserted for clarity.

Editorial Notes

Amendments

2022—Par. (17)(A). Pub. L. 117–263, § 541(b)(1), struck out “or” after “section 932 (article 132),” and substituted “, 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” for “of this title”.

Pub. L. 117–263, § 541(a)(1), substituted “section 919a (article 119a), section 920 (article 120), section 920a (article 120a)” for “section 920 (article 120)”.

2021—Par. (11). Pub. L. 117–81, § 533(1), added par. (11).

Pars. (17), (18). Pub. L. 117–81, § 533(2), added pars. (17) and (18).

2017—Pub. L. 115–91, § 1081(c)(1)(A), which directed insertion of “(the Uniform Code of Military Justice)” after “chapter” in introductory provisions, was not executed in light of the prior amendment by section 1081(a)(21) of Pub. L. 115–91, to reflect the probable intent of Congress. See Amendment note below and section 1081(c)(4) of Pub. L. 115–91, set out as an Effective Date of 2017 Amendment note below.

Pub. L. 115–91, § 1081(a)(21), inserted “(the Uniform Code of Military Justice)” after “chapter” in introductory provisions.

2016—Cl. (10). Pub. L. 114–328, § 5101(a), amended cl. (10) generally. Prior to amendment, cl. (10) read as follows: “The term ‘military judge’ means an official of a general or special court-martial detailed in accordance with section 826 of this title (article 26).”

Cl. (13)(A). Pub. L. 114–328, § 5101(b)(1), substituted “the Army, the Navy, or the Air Force” for “the Army or the Navy”.

Cl. (13)(B). Pub. L. 114–328, § 5101(b)(2), struck out “the Air Force or” after “an officer of”.

2006—Cl. (11). Pub. L. 109–241, § 218(a)(1), struck out cl. (11) which read as follows: “The term ‘law specialist’ means a commissioned officer of the Coast Guard designated for special duty (law).”

Cl. (13)(C). Pub. L. 109–241, § 218(a)(2), added subpar. (C) and struck out former subpar. (C) which read as follows: “an officer of the Coast Guard who is designated as a law specialist.”

2002—Cl. (1). Pub. L. 107–296 substituted “an official designated to serve as Judge Advocate General of the Coast Guard by the Secretary of Homeland Security” for “the General Counsel of the Department of Transportation”.

1996—Cls. (15), (16). Pub. L. 104–106 added cls. (15) and (16).

1988—Cl. (1). Pub. L. 100–456 substituted “term ‘Judge” for “term ‘judge”.

1987—Cls. (1), (3) to (14). Pub. L. 100–180 inserted “The term” after each clause designation and revised first word in quotes in each clause to make initial letter of such word lowercase.

1983—Cl. (13). Pub. L. 98–209, § 2(a), added officers of the Coast Guard who are designated as law specialists to definition of “Judge Advocate”.

Cl. (14). Pub. L. 98–209, § 6(a), added cl. (14).

1968—Cl. (10). Pub. L. 90–632 substituted “military judge” for “law officer” as term being defined and inserted reference to special court-martial in the definition thereof.

1967—Cl. (11). Pub. L. 90–179, § 1(1), struck out “Navy or” before “Coast Guard”.

Cl. (13). Pub. L. 90–179, § 1(2), added cl. (13).

1966—Pub. L. 89–670 substituted the General Counsel of the Department of Transportation for the General Counsel of the Department of the Treasury in definition of “Judge Advocate General” applicable to the Coast Guard when operating as a service in the Navy.

Statutory Notes and Related Subsidiaries

Effective Date of 2022 Amendment

Pub. L. 117–263, div. A, title V, § 541(a)(2), Dec. 23, 2022, 136 Stat. 2580, provided that: “The amendments made by paragraph (1) [amending this section] shall take effect immediately after the coming into effect of the amendments made by section 533 of the National Defense Authorization Act for Fiscal Year 2022 (Public Law 117–81; 135 Stat. 1695) [amending this section] as provided in section 539C of that Act (10 U.S.C. 801 note) and shall apply with respect to offenses that occur after that date.”

Pub. L. 117–263, div. A, title V, § 541(b)(2), Dec. 23, 2022, 136 Stat. 2580, provided that: “The amendments made by paragraph (1) [amending this section] shall take effect on January 1, 2025, and shall apply with respect to offenses that occur after that date.”

Effective Date of 2021 Amendment

Pub. L. 117–81, div. A, title V, § 539C, Dec. 27, 2021, 135 Stat. 1699, as amended by Pub. L. 118–31, div. A, title V, § 531(c)(2), Dec. 22, 2023, 137 Stat. 259, provided that: “(a) In General.—Except as provided in subsection (b), the amendments made by this part [part 1 (§§ 531–539C) of subtitle D of title V of div. A of Pub. L. 117–81, enacting sections 824a and 1044f of this title and amending this section and sections 822, 823, 827, 832, 834, 844, 853a, 865 to 867, and 869 of this title] shall take effect on the date that is two years after the date of the enactment of this Act [Dec. 27, 2021] and, except as provided in section 824a(d) of title 10, United States Code (article 24a(d) of the Uniform Code of Military Justice), shall apply with respect to offenses that occur after that date. “(b) Regulations.—“(1) Requirement.—The President shall prescribe regulations to carry out this part not later than two years after the date of the enactment of this Act. “(2) Impact of delay of issuance.—If the President does not prescribe the regulations necessary to carry out this part before the date that is two years after the date of the enactment of this Act, the amendments made by this part shall take effect on the date on which such regulations are prescribed and shall apply with respect to offenses that occur on or after that date.”

Effective Date of 2017 Amendment

Pub. L. 115–91, div. A, title V, § 531(p), Dec. 12, 2017, 131 Stat. 1388, provided that: “The amendments made by this section [amending sections 806b, 830a, 838, 853a, 856, 858a, 858b, 862, 863, 866, 946, 1059, and 1408 of this title and provisions set out as a note below] shall take effect immediately after the amendments made by the Military Justice Act of 2016 (division E [§§ 5001–5542] of Public Law 114–328 [enacting, amending, and transferring numerous sections throughout this chapter]) take effect as provided for in section 5542 of that Act (130 Stat. 2967) [set out below].”

Pub. L. 115–91, div. A, title X, § 1081(c)(4), Dec. 12, 2017, 131 Stat. 1599, provided that: “The amendments made by this subsection [amending this section and sections 673, 674, 806b, 816, 839, 843, 848, 853, 853a, 864, 865, 866, 869, 882, 919a, 920, 928, 932, 937, 1034, and 1044e of this title and section 8312 of Title 5, Government Organization and Employees] shall take effect immediately after the amendments made by the Military Justice Act of 2016 (division E [§§ 5001–5542] of Public Law 114–328 [enacting, amending, and transferring numerous sections throughout this chapter]) take effect as provided for in section 5542 of that Act (130 Stat. 2967) [set out below].”

Effective Date of 2016 Amendment

Pub. L. 114–328, div. E, title LXIII, § 5542, Dec. 23, 2016, 130 Stat. 2967, as amended by Pub. L. 115–91, div. A, title V, § 531(n)(1), Dec. 12, 2017, 131 Stat. 1387, provided that: “(a) In General.—Except as otherwise provided in this division [div. E (§§ 5001–5542) of Pub. L. 114–328, see Tables for classification], the amendments made by this division [enacting, amending, and transferring numerous sections throughout this chapter] shall take effect on the date designated by the President [Jan. 1, 2019, with certain conditions and exceptions, see Ex. Ord. No. 13825, set out below], which date shall be not later than the first day of the first calendar month that begins two years after the date of the enactment of this Act [Dec. 23, 2016]. “(b) Implementing Regulations.—The President shall prescribe regulations implementing this division and the amendments made by this division by not later than one year after the date of the enactment of this Act, except as otherwise provided in this division. “(c) Applicability.—“(1) In general.—Subject to the provisions of this division and the amendments made by this division, the President shall prescribe in regulations whether, and to what extent, the amendments made by this division shall apply to a case in which a specification alleges the commission, before the effective date of such amendments, of one or more offenses or to a case in which one or more actions under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), have been taken before the effective date of such amendments. “(2) Inapplicability to cases in which charges already referred to trial on effective date.—Except as otherwise provided in this division or the amendments made by this division, the amendments made by this division shall not apply to any case in which charges are referred to trial by court-martial before the effective date of such amendments. Proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been enacted. “(3) Punitive article amendments.—“(A) In general.—The amendments made by title LX [§§ 5401–5452 of div. E of Pub. L. 114–328, enacting, amending, and transferring numerous sections within subchapter X of this chapter, see Tables for classification] shall not apply to any offense committed before the effective date of such amendments. “(B) Construction.—Nothing in subparagraph (A) shall be construed to invalidate the prosecution of any offense committed before the effective date of such amendments. “(4) Sentencing amendments.—The regulations prescribing the authorized punishments for any offense committed before the effective date of the amendments made by title LVIII [§§ 5301–5303 of div. E of Pub. L. 114–328, amending sections 856 to 857a, 858a, 858b, and 871 of this title] shall apply to the authorized punishments for the offense, as in effect at the time the offense is committed.”

Effective Date of 2002 Amendment

Amendment by Pub. L. 107–296 effective on the date of transfer of the Coast Guard to the Department of Homeland Security, see section 1704(g) of Pub. L. 107–296, set out as a note under section 101 of this title.

Effective Date of 1983 Amendment

Pub. L. 98–209, § 12(a), Dec. 6, 1983, 97 Stat. 1407, provided that: “(1) The amendments made by this Act [see Short Title of 1983 Amendment note below] shall take effect on the first day of the eighth calendar month that begins after the date of enactment of this Act [Dec. 6, 1983], except that the amendments made by sections 9, 11 and 13 [amending sections 802, 815, 825, 867, 1552, and 1553 of this title and enacting provisions set out as a note under section 867 of this title] shall be effective on the date of the enactment of this Act. The amendments made by section 11 [amending sections 1552 and 1553 of this title] shall only apply with respect to cases filed after the date of enactment of this Act with the boards established under sections 1552 and 1553 of title 10, United States Code. “(2) The amendments made by section 3(c) and 3(e) [amending sections 826, 827, and 838 of this title] do not affect the designation or detail of a military judge or military counsel to a court-martial before the effective date of such amendments. “(3) The amendments made by section 4 [amending section 834 of this title] shall not apply to any case in which charges were referred to trial before the effective date of such amendments, and proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been enacted. “(4) The amendments made by sections 5, 6, and 7 [amending this section and sections 849, 854, 857, 860 to 867, 869, 871, and 876a of this title and enacting provisions set out as a note under section 869 of this title] shall not apply to any case in which the findings and sentence were adjudged by a court-martial before the effective date of such amendments. The proceedings in any such case shall be held in the same manner and with the same effect as if such amendments had not been enacted. “(5) The amendments made by section 8 [enacting section 912a of this title] shall not apply to any offense committed before the effective date of such amendments. Nothing in this provision shall be construed to invalidate the prosecution of any offense committed before the effective date of such amendments.”

Effective Date of 1968 Amendment

Pub. L. 90–632, § 4, Oct. 24, 1968, 82 Stat. 1343, provided that: “(a) Except for the amendments made by paragraphs (30) and (33) of section 2, this Act [see Short Title of 1968 Amendment note below] shall become effective on the first day of the tenth month following the month in which it is enacted [October 1968]. “(b) The amendment made by paragraph (30) of section 2 [amending section 869 of this title] shall become effective upon the date of enactment of this Act [Oct. 24, 1968]. “(c) The amendment made by paragraph (33) [amending section 873 of this title] shall apply in the case of all court-martial sentences approved by the convening authority on or after, or not more than two years before, the date of its enactment [Oct. 24, 1968].”

Effective Date of 1966 Amendment

Amendment by Pub. L. 89–670 effective Apr. 1, 1967, as prescribed by the President and published in the Federal Register, see section 16(a), formerly § 15(a), of Pub. L. 89–670, and Ex. Ord. No. 11340, Mar. 30, 1967, 32 F.R. 5453.

Effective Date

Act Aug. 10, 1956, ch. 1041, § 51, 70A Stat. 640, provided that: “Chapter 47 of title 10, United States Code, enacted by section 1 of this Act, takes effect January 1, 1957.”

Short Title of 1996 Amendment

Pub. L. 104–106, div. A, title XI, § 1101, Feb. 10, 1996, 110 Stat. 461, provided that: “This title [enacting sections 857a, 858b, and 876b of this title, amending this section and sections 802, 832, 847, 857, 860, 862, 866, 895, 920, and 937 of this title, repealing section 804 of Title 37, Pay and Allowances of the Uniformed Services, enacting provisions set out as notes under sections 802, 857, 858b, and 876b of this title, and amending provisions set out as a note under section 942 of this title] may be cited as the ‘Military Justice Amendments of 1995’.”

Short Title of 1986 Amendment

Pub. L. 99–661, div. A, title VIII, § 801(a), Nov. 14, 1986, 100 Stat. 3905, provided that: “This title [enacting section 850a of this title, amending sections 802, 803, 806, 825, 843, 860, 936, and 937 of this title, and enacting provisions set out as notes under sections 802, 806, 825, 843, 850a, and 860 of this title] may be cited as the ‘Military Justice Amendments of 1986’.”

Short Title of 1983 Amendment

Pub. L. 98–209, § 1(a), Dec. 6, 1983, 97 Stat. 1393, provided that: “This Act [enacting sections 912a of this title and section 1259 of Title 28, Judiciary and Judicial Procedure, amending this section, sections 802, 806, 815, 816, 825, 826, 827, 829, 834, 838, 842, 849, 854, 857, 860 to 867, 869, 870, 871, 876a, 936, 1552, and 1553 of this title, and section 2101 of Title 28, and enacting provisions set out as notes under sections 801, 867, and 869 of this title and amending provisions set out as a note under section 706 of this title] may be cited as the ‘Military Justice Act of 1983’.”

Short Title of 1981 Amendment

Pub. L. 97–81, § 1(a), Nov. 20, 1981, 95 Stat. 1085, provided that: “This Act [enacting sections 706, 707, and 876a of this title, amending sections 701, 813, 832, 838, 867, and 869 of this title, and enacting provisions set out as a note under section 706 of this title] may be cited as the ‘Military Justice Amendments of 1981’.”

Short Title of 1968 Amendment

Pub. L. 90–632, § 1, Oct. 24, 1968, 82 Stat. 1335, provided: “That this Act [amending this section and sections 806, 816, 818, 819, 820, 825, 826, 827, 829, 835, 837, 838, 839, 840, 841, 842, 845, 849, 851, 852, 854, 857, 865, 866, 867, 868, 869, 870, 871, 873, and 936 of this title and enacting provisions set out as notes under this section and sections 826 and 866 of this title] may be cited as the ‘Military Justice Act of 1968’.”

Redesignation of Navy Law Specialists as Judge Advocates

Navy law specialists redesignated judge advocates, see section 8 of Pub. L. 90–179, set out as a note under section 5148 of this title.

Savings Provision

Rights, duties, and proceedings not affected by Pub. L. 90–179 establishing Judge Advocate General’s Corps in Navy, see section 10 of Pub. L. 90–179, set out as a note under section 5148 of this title.

Legislative Construction

Act Aug. 10, 1956, ch. 1041, § 49(e), 70A Stat. 640, provided that: “In chapter 47 of title 10, United States Code [this chapter], enacted by section 1 of this Act, no inference of a legislative construction is to be drawn from the part in which any article is placed nor from the catchlines of the part or the article as set out in that chapter.”

Transfer of Functions

For transfer of authorities, functions, personnel, and assets of the Coast Guard, including the authorities and functions of the Secretary of Transportation relating thereto, to the Department of Homeland Security, and for treatment of related references, see sections 468(b), 551(d), 552(d), and 557 of Title 6, Domestic Security, and the Department of Homeland Security Reorganization Plan of November 25, 2002, as modified, set out as a note under section 542 of Title 6.

Applicability to the United States Coast Guard

Pub. L. 117–81, div. A, title V, § 539B, Dec. 27, 2021, 135 Stat. 1699, provided that: “The Secretary of Defense shall consult and enter into an agreement with the Secretary of Homeland Security to apply the provisions of this part [part 1 (§§ 531–539C) of subtitle D of title V of div. A of Pub. L. 117–81, enacting sections 824a and 1044f of this title, amending this section and sections 822, 823, 827, 832, 834, 844, 853a, 865 to 867, and 869 of this title, and enacting provisions set out as a note under this section] and the amendments made by this part, and the policies, mechanisms, and processes established pursuant to such provisions, to the United States Coast Guard when it is operating as a service in the Department of Homeland Security.”

Assessment of Racial, Ethnic, and Gender Disparities in the Military Justice System

Pub. L. 116–92, div. A, title V, § 540I, Dec. 20, 2019, 133 Stat. 1369, provided that: “(a) In General.—The Secretary of Defense shall provide for the carrying out of the activities described in subsections (b) and (c) in order to improve the ability of the Department of Defense to detect and address racial, ethnic, and gender disparities in the military justice system. “(b) Secretary of Defense and Related Activities.—The activities described in this subsection are the following, to be commenced or carried out (as applicable) by not later than 180 days after the date of the enactment of this Act [Dec. 20, 2019]:“(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) DAC–IPAD Activities.—“(1) In general.—The activities described in this subsection are the following, to be conducted by the independent committee DAC–IPAD:“(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) Information from federal agencies.—“(A) In general.—Upon request by the chair of the committee, a department or agency of the Federal Government shall provide information that the committee considers necessary to conduct reviews and assessments required by paragraph (1), including military criminal investigation files, charge sheets, records of trial, and personnel records. “(B) Handling, storage, and return.—The committee shall handle and store all records received and reviewed under this subsection in accordance with applicable privacy laws and Department of Defense policy, and shall return all records so received in a timely manner. “(3) Report.—Not later than one year after the date of the enactment of this Act [Dec. 20, 2019], the committee shall submit to the Secretary of Defense, and to the Committees on Armed Services of the Senate and the House of Representatives, a report setting forth the results of the reviews and assessments required by paragraph (1). The report shall include such recommendations for legislative or administrative action as the committee considers appropriate in light of such results. “(4) Definitions.—In this subsection:“(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 (Public Law 113–291; 128 Stat. 3374) [10 U.S.C. 1561 note], commonly known as the ‘DAC-IPAD’. “(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

Pub. L. 116–92, div. A, title V, § 540J, Dec. 20, 2019, 133 Stat. 1371, provided that: “(a) In General.—Each Secretary of a military department shall carry out a pilot program on defense investigators within the military justice system under the jurisdiction of such Secretary in order to do the following:“(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) Elements.—“(1) Interview of victim.—A defense investigator may question a victim under a pilot program only upon a request made through the Special Victims’ Counsel or other counsel if the victim does not have such counsel. “(2) Uniformity across military justice systems.—The Secretary of Defense shall ensure that the personnel and activities of defense investigators under the pilot programs are, to the extent practicable, uniform across the military justice systems of the military departments. “(c) Report.—“(1) In general.—Not later than three years after the date of the enactment of this Act [Dec. 20, 2019], the Secretary of Defense shall, in consultation with the Secretaries of the military departments, submit to the Committees on Armed Services of the Senate and the House of Representatives a report on the pilot programs under subsection (a). “(2) Elements.—The report required by paragraph (1) shall include the following:“(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

Pub. L. 116–92, div. A, title X, § 1046, Dec. 20, 2019, 133 Stat. 1586, provided that: “(a) Chief Medical Officer.—“(1) In general.—There shall be at United States Naval Station, Guantanamo Bay, Cuba, a Chief Medical Officer of United States Naval Station, Guantanamo Bay (in this section referred to as the ‘Chief Medical Officer’). “(2) Grade.—The individual serving as Chief Medical Officer shall be an officer of the Armed Forces who holds a grade not below the grade of colonel, or captain in the Navy. “(3) Chain of command.—Notwithstanding sections 162 and 164 of title 10, United States Code, the Chief Medical Officer shall be assigned and report to the Assistant Secretary of Defense for Health Affairs, with duty at United States Naval Station, Guantanamo Bay, Cuba, in the performance of duties and the exercise of powers of the Chief Medical Officer under this section. “(b) Duties.—“(1) In general.—The Chief Medical Officer shall oversee the provision of medical care to individuals detained at Guantanamo. “(2) Quality of care.—The Chief Medical Officer shall ensure that medical care provided as described in paragraph (1) meets applicable standards of care. “(c) Powers.—“(1) In general.—The Chief Medical Officer shall make medical determinations relating to medical care for individuals detained at Guantanamo, including—“(A) decisions regarding assessment, diagnosis, and treatment; and “(B) determinations concerning medical accommodations to living conditions and operating procedures for detention facilities. “(2) Resolution of declination to follow determinations.—If the commander of Joint Task Force Guantanamo or the Commander of United States Southern Command declines to follow a determination of the Chief Medical Officer under paragraph (1), the matter covered by such determination shall be resolved by the Assistant Secretary of Defense for Health Affairs, in consultation with the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, not later than seven days after receipt by both Assistant Secretaries of written notification of the matter from the Chief Medical Officer. “(3) Security clearances.—The appropriate departments or agencies of the Federal Government shall, to the extent practicable in accordance with existing procedures and requirements, process expeditiously any application and adjudication for a security clearance required by the Chief Medical Officer to carry out the Chief Medical Officer’s duties and powers under this section. “(d) Access to Individuals, Information, and Assistance.—“(1) In general.—The Chief Medical Officer may secure directly from the Department of Defense access to any individual, information, or assistance that the Chief Medical Officer considers necessary to enable the Chief Medical Officer to carry out this section, including full access to the following:“(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) Access upon request.—Upon request of the Chief Medical Officer, the Department shall make available to the Chief Medical Officer on an expeditious basis access to individuals, information, and assistance as described in paragraph (1). “(3) Lack of expeditious availability.—If access to individuals, information, or assistance is not made available to the Chief Medical Officer upon request on an expeditious basis as required by paragraph (2), the Chief Medical Officer shall notify the Assistant Secretary of Defense for Health Affairs and the Assistant Secretary of Defense for Special Operations and Low Intensity Conflict, who shall take actions to resolve the matter expeditiously. “(e) Definitions.—In this section:“(1) Individual detained at guantanamo defined.—The term ‘individual detained at Guantanamo’ means an individual located at United States Naval Station, Guantanamo Bay, Cuba, as of October 1, 2009, who—“(A) is not a national of the United States (as defined in section 101(a)(22) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(22)) 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 detained at United States Naval Station, Guantanamo Bay. “(2) Medical care.—The term ‘medical care’ means physical and mental health care. “(3) Standard of care.—The term ‘standard of care’ means evaluation and treatment that is accepted by medical experts and reflected in peer-reviewed medical literature as the appropriate medical approach for a condition, symptoms, illness, or disease and that is widely used by healthcare professionals.”

Sentencing in Certain Transitional Cases

Pub. L. 115–91, div. A, title V, § 531(o), Dec. 12, 2017, 131 Stat. 1387, provided that: “(1) In general.—In any transition-period court-martial, the relevant sentencing sections of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), shall be applied as follows:“(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 Public Law 114–328 [enacting, amending, and transferring numerous sections throughout this chapter]) and this section [see section 531(p) of Pub. L. 115–91, set out as an Effective Date of 2017 Amendment note above] had not been enacted. “(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 Public Law 114–328) and this section. “(2) Definitions.—In this subsection:“(A) Transition-period court-martial.—The term ‘transition-period court-martial’ means a court-martial under chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that consists of both of the following:“(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 Public Law 114–328; 130 Stat. 2967) [set out above]. “(ii) A prosecution of one or more offenses committed on or after that date. “(B) Relevant sentencing sections.—The term ‘relevant sentencing sections’ means section 856 of title 10, United States Code (article 56 of the Uniform Code of Military Justice), and any other sections (articles) of chapter 47 of title 10, United States Code (the Uniform Code of Military Justice), that, by regulation prescribed by the President, are designated as relevant to sentencing for the purposes of paragraph (1).”

Improved Implementation of Changes to Uniform Code of Military Justice

Pub. L. 114–92, div. A, title V, § 543, Nov. 25, 2015, 129 Stat. 820, provided that: “The Secretary of Defense shall examine the Department of Defense process for implementing statutory changes to the Uniform Code of Military Justice for the purpose of developing options for streamlining such process. The Secretary shall adopt procedures to ensure that legal guidance is published as soon as practicable whenever statutory changes to the Uniform Code of Military Justice are implemented.”

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

Pub. L. 114–92, div. A, title X, § 1034(a)–(f), Nov. 25, 2015, 129 Stat. 969, 970, provided that: “(a) Certification Required Prior to Transfer.—“(1) In general.—Except as provided in paragraph (2), the Secretary of Defense may not use any amounts authorized to be appropriated or otherwise available to the Department of Defense to transfer any individual detained at Guantanamo to the custody or control of the individual’s country of origin, any other foreign country, or any other foreign entity unless the Secretary submits to the appropriate committees of Congress the certification described in subsection (b) not later than 30 days before the transfer of the individual. “(2) Exception.—Paragraph (1) shall not apply to any action taken by the Secretary to transfer any individual detained at Guantanamo to effectuate an order affecting the disposition of the individual that is issued by a court or competent tribunal of the United States having lawful jurisdiction (which the Secretary shall notify the appropriate committees of Congress of promptly after issuance). “(b) Certification.—A certification described in this subsection is a written certification made by the Secretary that—“(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) Coordination With Prohibition on Transfer to Certain Countries.—While the prohibition in section 1033 [of Pub. L. 114–92, 129 Stat. 968] is in effect, no certification may be made under subsection (b) in connection with the transfer of an individual detained at Guantanamo to a country specified in such section. “(d) Record of Cooperation.—In assessing the risk that an individual detained at Guantanamo will engage in terrorist activity or other actions that could affect the national security of the United States if released for the purpose of making a certification under subsection (b), the Secretary may give favorable consideration to any such individual—“(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) Report.—Whenever the Secretary makes a certification under subsection (b) with respect to an individual detained at Guantanamo, the Secretary shall submit to the appropriate committees of Congress, together with such certification, a report that shall include, at a minimum, the following:“(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) Definitions.—In this section:“(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 (8 U.S.C. 1189). “(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 (22 U.S.C. 8541(13)).”

Transfers to Foreign Countries of Individuals Detained at United States Naval Station, Guantanamo Bay, Cuba

Pub. L. 113–66, div. A, title X, § 1035(a)–(e), Dec. 26, 2013, 127 Stat. 851–853, which related to authority, determinations, and notification regarding transfers to foreign countries of individuals detained at United States Naval Station, Guantanamo Bay, Cuba, was repealed by Pub. L. 114–92, div. A, title X, § 1034(g), Nov. 25, 2015, 129 Stat. 971.

Notice to Congress on Use of Naval Vessels for Detention of Individuals

Pub. L. 112–239, div. A, title X, § 1024(a), Jan. 2, 2013, 126 Stat 1912, provided that: “Not later than 30 days after first detaining an individual pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) on a naval vessel outside the United States, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives notice of the detention. In the case of such an individual who is transferred or released before the submittal of the notice of the individual’s detention, the Secretary shall also submit to such Committees notice of the transfer or release.”

Notice Required Prior To Transfer of Certain Individuals Detained at the Detention Facility at Parwan, Afghanistan

Pub. L. 112–239, div. A, title X, § 1025, Jan. 2, 2013, 126 Stat. 1913, provided that: “(a) Notice Required.—The Secretary of Defense shall submit to the appropriate congressional committees notice in writing of the proposed transfer of any individual detained pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) who is a national of a country other than the United States or Afghanistan from detention at the Detention Facility at Parwan, Afghanistan, to the custody of the Government of Afghanistan or of any other country. Such notice shall be provided not later than 10 days before such a transfer may take place. “(b) Assessments Required.—Prior to any transfer referred to under subsection (a), the Secretary shall ensure that an assessment is conducted as follows:“(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) Appropriate Congressional Committees Defined.—In this section, the term ‘appropriate congressional committees’ means the Committee on Armed Services and the Committee on Foreign Affairs of the House of Representatives and the Committee on Armed Services and the Committee on Foreign Relations of the Senate.”

Requirements for Certifications Relating to the Transfer of Detainees at United States Naval Station, Guantanamo Bay, Cuba, to Foreign Countries and Other Foreign Entities

Pub. L. 112–239, div. A, title X, § 1028, Jan. 2, 2013, 126 Stat. 1914, related to requirements for certifications relating to the transfer of detainees at United States Naval Station, Guantanamo Bay, Cuba, to foreign countries and other foreign entities, prior to repeal by Pub. L. 113–66, div. A, title X, § 1035(f)(2), Dec. 26, 2013, 127 Stat. 853.

Rights Unaffected

Pub. L. 112–239, div. A, title X, § 1029, Jan. 2, 2013, 126 Stat. 1917, provided that: “Nothing in the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) or the National Defense Authorization Act for Fiscal Year 2012 (Public Law 112–81 [see Tables for classification]) shall be construed to deny the availability of the writ of habeas corpus or to deny any Constitutional rights in a court ordained or established by or under Article III of the Constitution to any person inside the United States who would be entitled to the availability of such writ or to such rights in the absence of such laws.”

Notification of Transfer of a Detainee Held at United States Naval Station, Guantanamo Bay, Cuba

Pub. L. 112–87, title III, § 308, Jan. 3, 2012, 125 Stat. 1883, provided that: “(a) Requirement for Notification.—The President shall submit to Congress, in classified form, at least 30 days prior to the transfer or release of an individual detained at Naval Station, Guantanamo Bay, Cuba, as of June 24, 2009, to the country of such individual’s nationality or last habitual residence or to any other foreign country or to a freely associated State the following information:“(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) Definition.—In this section, the term ‘freely associated States’ means the Federated States of Micronesia, the Republic of the Marshall Islands, and the Republic of Palau. “(c) Construction With Other Requirements.—Nothing in this section shall be construed to supersede or otherwise affect the following provisions of law:“(1) Section 1028 of the National Defense Authorization Act for Fiscal Year 2012 [Pub. L. 112–81, formerly set out below]. “(2) Section 8120 of the Department of Defense Appropriations Act, 2012 [div. A of Pub. L. 112–74, 125 Stat. 833].”

[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 Pub. L. 112–87, set out above.]

Detention Authority and Procedures, Transfer Certifications and Prosecution Consultation Requirement

Pub. L. 112–81, div. A, title X, §§ 1021–1025, 1028, 1029, Dec. 31, 2011, 125 Stat. 1562–1565, 1567, 1569, as amended by Pub. L. 113–66, div. A, title X, § 1035(f)(1), Dec. 26, 2013, 127 Stat. 853, provided that: “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) In General.—Congress affirms that the authority of the President to use all necessary and appropriate force pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) includes the authority for the Armed Forces of the United States to detain covered persons (as defined in subsection (b)) pending disposition under the law of war. “(b) Covered Persons.—A covered person under this section is any person as follows:“(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) Disposition Under Law of War.—The disposition of a person under the law of war as described in subsection (a) may include the following:“(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 chapter 47A of title 10, United States Code (as amended by the Military Commissions Act of 2009 (title XVIII of Public Law 111–84)). “(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) Construction.—Nothing in this section is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force. “(e) Authorities.—Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States. “(f) Requirement for Briefings of Congress.—The Secretary of Defense shall regularly brief Congress regarding the application of the authority described in this section, including the organizations, entities, and individuals considered to be ‘covered persons’ for purposes of subsection (b)(2). “SEC. 1022. MILITARY CUSTODY FOR FOREIGN AL-QAEDA TERRORISTS.“(a) Custody Pending Disposition Under Law of War.—“(1) In general.—Except as provided in paragraph (4), the Armed Forces of the United States shall hold a person described in paragraph (2) who is captured in the course of hostilities authorized by the Authorization for Use of Military Force (Public Law 107–40) in military custody pending disposition under the law of war. “(2) Covered persons.—The requirement in paragraph (1) shall apply to any person whose detention is authorized under section 1021 who is determined—“(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) Disposition under law of war.—For purposes of this subsection, the disposition of a person under the law of war has the meaning given in section 1021(c), except that no transfer otherwise described in paragraph (4) of that section shall be made unless consistent with the requirements of section 1028. “(4) Waiver for national security.—The President may waive the requirement of paragraph (1) if the President submits to Congress a certification in writing that such a waiver is in the national security interests of the United States. “(b) Applicability to United States Citizens and Lawful Resident Aliens.—“(1) United states citizens.—The requirement to detain a person in military custody under this section does not extend to citizens of the United States. “(2) Lawful resident aliens.—The requirement to detain a person in military custody under this section does not extend to a lawful resident alien of the United States on the basis of conduct taking place within the United States, except to the extent permitted by the Constitution of the United States. “(c) Implementation Procedures.—“(1) In general.—Not later than 60 days after the date of the enactment of this Act [Dec. 31, 2011], the President shall issue, and submit to Congress, procedures for implementing this section. “(2) Elements.—The procedures for implementing this section shall include, but not be limited to, procedures as follows:“(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) Authorities.—Nothing in this section shall be construed to affect the existing criminal enforcement and national security authorities of the Federal Bureau of Investigation or any other domestic law enforcement agency with regard to a covered person, regardless whether such covered person is held in military custody. “(e) Effective Date.—This section shall take effect on the date that is 60 days after the date of the enactment of this Act, and shall apply with respect to persons described in subsection (a)(2) who are taken into the custody or brought under the control of the United States on or after that effective date. “SEC. 1023. PROCEDURES FOR PERIODIC DETENTION REVIEW OF INDIVIDUALS DETAINED AT UNITED STATES NAVAL STATION, GUANTANAMO BAY, CUBA.“(a) Procedures Required.—Not later than 180 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth procedures for implementing the periodic review process required by Executive Order No. 13567 [set out below] for individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note). “(b) Covered Matters.—The procedures submitted under subsection (a) shall, at a minimum—“(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) Appropriate Committees of Congress Defined.—In this section, the term ‘appropriate committees of Congress’ means—“(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) In General.—Not later than 90 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall submit to the appropriate committees of Congress a report setting forth the procedures for determining the status of persons detained pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note) for purposes of section 1021. “(b) Elements of Procedures.—The procedures required by this section shall provide for the following in the case of any unprivileged enemy belligerent who will be held in long-term detention under the law of war pursuant to the Authorization for Use of Military Force:“(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) Applicability.—The Secretary of Defense is not required to apply the procedures required by this section in the case of a person for whom habeas corpus review is available in a Federal court. “(d) Report on Modification of Procedures.—The Secretary of Defense shall submit to the appropriate committees of Congress a report on any modification of the procedures submitted under this section. The report on any such modification shall be so submitted not later than 60 days before the date on which such modification goes into effect. “(e) Appropriate Committees of Congress Defined.—In this section, the term ‘appropriate committees of Congress’ means—“(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) In General.—Not later than 180 days after the date of the enactment of this Act [Dec. 31, 2011], the Secretary of Defense shall develop and submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a national security protocol governing communications to and from individuals detained at United States Naval Station, Guantanamo Bay, Cuba, pursuant to the Authorization for Use of Military Force (Public Law 107–40; 50 U.S.C. 1541 note), and related issues. “(b) Contents.—The protocol developed pursuant to subsection (a) shall include Department of Defense policies and procedures regarding each of the following:“(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) Updates.—The Secretary of Defense shall notify the congressional defense committees of any significant change to the policies and procedures described in the protocol submitted pursuant to subsection (a) not later than 30 days after such change is made. “(d) Form of Protocol.—The protocol submitted pursuant to subsection (a) may be submitted in classified form. “[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) In General.—Before seeking an indictment of, or otherwise charging, an individual described in subsection (b) in a Federal court, the Attorney General shall consult with the Director of National Intelligence and the Secretary of Defense about—“(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) Applicability.—The consultation requirement in subsection (a) applies to—“(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 Pub. L. 112–81, set out above, to the Attorney General, in consultation with other senior national security officials, including the Secretaries of State, Defense, and Homeland Security, Director of National Intelligence, Chairman of the Joint Chiefs of Staff, Director of the Central Intelligence Agency, and Director of the Federal Bureau of Investigation, as well as any other officials the President may designate.]

Prohibition on Interrogation of Detainees by Contractor Personnel

Pub. L. 111–84, div. A, title X, § 1038, Oct. 28, 2009, 123 Stat. 2451, provided that: “(a) Prohibition.—Except as provided in subsection (b), effective one year after the date of the enactment of this Act [Oct. 28, 2009], no enemy prisoner of war, civilian internee, retained personnel, other detainee, or any other individual who is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility in connection with hostilities may be interrogated by contractor personnel. “(b) Authorized Functions of Contractor Personnel.—Contractor personnel with proper training and security clearances may be used as linguists, interpreters, report writers, information technology technicians, and other employees filling ancillary positions, including as trainers of and advisors to interrogators, in interrogations of persons as described in subsection (a) if—“(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) Discharge by Government Personnel.—The Secretary of Defense shall take appropriate actions to ensure that, by not later than one year after the date of the enactment of this Act, the Department of Defense has the resources needed to ensure that interrogations described in subsection (a) are conducted by appropriately qualified government personnel. “(d) Waiver.—“(1) Waivers authorized.—The Secretary of Defense may waive the prohibition under subsection (a) for a period of 60 days if the Secretary determines such a waiver is vital to the national security interests of the United States. The Secretary may renew a waiver issued pursuant to this paragraph for an additional 30-day period, if the Secretary determines that such a renewal is vital to the national security interests of the United States. “(2) Limitation on delegation.—“(A) In general.—The waiver authority under paragraph (1) may not be delegated to any official below the level of the Deputy Secretary of Defense, except in the case of a waiver for an individual interrogation that is based on military exigencies, in which case the delegation of the waiver authority shall be done pursuant to regulations that the Secretary of Defense shall prescribe but in no instance may the latter delegation be below the level of combatant commander of the theater in which the individual is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility within that theater. “(B) Deadline for regulations.—The Secretary of Defense shall prescribe the regulations referred to in subparagraph (A) by not later than 30 days after the date of the enactment of this Act. “(3) Congressional notification.—Not later than five days after the Secretary issues a waiver pursuant to paragraph (1), the Secretary shall submit to Congress written notification of the waiver.”

No Miranda Warnings for Al Qaeda Terrorists

Pub. L. 111–84, div. A, title X, § 1040, Oct. 28, 2009, 123 Stat. 2454, provided that: “(a) No Miranda Warnings.—“(1) In general.—Absent a court order requiring the reading of such statements, no member of the Armed Forces and no official or employee of the Department of Defense or a component of the intelligence community (other than the Department of Justice) may read to a foreign national who is captured or detained outside the United States as an enemy belligerent and is in the custody or under the effective control of the Department of Defense or otherwise under detention in a Department of Defense facility the statement required by Miranda v. Arizona (384 U.S. 436 (1966)), or otherwise inform such an individual of any rights that the individual may or may not have to counsel or to remain silent consistent with Miranda v. Arizona (384 U.S. 436 (1966)). “(2) Nonapplicability to department of justice.—This subsection shall not apply to the Department of Justice. “(3) Definitions.—In this subsection:“(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 section 948a of title 10, United States Code, as amended by section 1802 of this Act. “(b) Report Required on Notification of Detainees of Rights Under Miranda v. Arizona.—Not later than 90 days after the date of the enactment of this Act [Oct. 28, 2009], the Secretary of Defense shall submit to the congressional defense committees [Committees on Armed Services and Appropriations of the Senate and the House of Representatives] a report on how the reading of rights under Miranda v. Arizona (384 U.S. 436 (1966)) to individuals detained by the United States in Afghanistan may affect—“(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

Pub. L. 111–84, div. A, title X, § 1080, Oct. 28, 2009, 123 Stat. 2479, as amended by Pub. L. 111–383, div. A, title X, § 1075(d)(15), Jan. 7, 2011, 124 Stat. 4373, provided that: “(a) Videotaping or Other Electronic Recording Required.—In accordance with the Army Field Manual on Human Intelligence Collector Operations (FM 2–22.3, September 2006), or any successor thereto, and the guidelines developed pursuant to subsection (f), the Secretary of Defense shall ensure that each strategic intelligence interrogation of any person who is in the custody or under the effective control of the Department of Defense or under detention in a Department of Defense facility is videotaped or otherwise electronically recorded. “(b) Classification of Information.—To protect United States national security, the safety of the individuals conducting or assisting in the conduct of a strategic intelligence interrogation, and the privacy of persons described in subsection (a), the Secretary of Defense shall provide for the appropriate classification of videotapes or other electronic recordings made pursuant to subsection (a). The use of such classified videotapes or other electronic recordings in proceedings conducted under the Detainee Treatment Act of 2005 (title XIV of Public Law 109–163 and title X of Public Law 109–148), chapter 47A of title 10, United States Code, as amended by section 1802 of this Act, or at any other judicial or administrative forum under any other provision of law shall be governed by applicable rules, regulations, and laws that protect classified information. “(c) Strategic Intelligence Interrogation Defined.—For purposes of this section, the term ‘strategic intelligence interrogation’ means an interrogation of a person described in subsection (a) conducted at a theater-level detention facility. “(d) Exclusion.—Nothing in this section shall be construed as requiring—“(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) Waiver.—“(1) Waivers authorized.—The Secretary of Defense may, as an exceptional measure, as part of a specific interrogation plan for a specific person described in subsection (a), waive the requirement in that subsection on a case-by-case basis for a period not to exceed 30 days, if the Secretary—“(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) Suspensions authorized.—The Secretary may temporarily suspend the requirement under subsection (a) at a specific theater-level detention facility for a period not to exceed 30 days, if the Secretary—“(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) Limitation on delegation of authority.—This authority of the Secretary under this subsection may only be delegated as follows:“(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) Extensions.—The Secretary may extend a waiver under paragraph (1) for one additional 30-day period, or a suspension under paragraph (2) for one additional 30-day period, if—“(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) Guidelines.—“(1) Development of guidelines.—The Secretary of Defense, acting through the Judge Advocates General (as defined in section 801(1) of title 10, United States Code, (Article 1 of the Uniform Code of Military Justice)), shall develop and adopt uniform guidelines for videotaping or otherwise electronically recording strategic intelligence interrogations as required under subsection (a). Such guidelines shall, at a minimum—“(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) Submittal to congress.—Not later than 30 days after the date of the enactment of this section [Oct. 28, 2009], the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and House of Representatives a report containing the guidelines developed under paragraph (1). Such report shall be in an unclassified form but may include a classified annex.”

Reports on Guantanamo Bay Prisoner Population