--- kind: "section" citation: "10 U.S.C. § 948k" title: "10" title_heading: "Armed Forces" number: "948k" heading: "Detail of trial counsel and defense counsel" release: "119-102" date: "2026-07-12" url: "https://uscodex.org/usc/10/948k" units: - "Subtitle A — General Military Law" - "Part II — Personnel" - "Chapter 47A — Military Commissions" - "Subchapter II — Composition of Military Commissions" --- # §948k. Detail of trial counsel and defense counsel - (a) **Detail of Counsel Generally.—** - (1) Trial counsel and [military](/usc/10/801.md?p=8) defense counsel shall be detailed for each [military](/usc/10/801.md?p=8) commission under this chapter. - (2) Assistant trial counsel and assistant and associate defense counsel may be detailed for a [military](/usc/10/801.md?p=8) commission under this chapter. - (3) [Military](/usc/10/801.md?p=8) defense counsel for a [military](/usc/10/801.md?p=8) commission under this chapter shall be detailed as soon as practicable. - (4) The [Secretary](/usc/10/4951.md?p=3) of Defense shall prescribe regulations providing for the manner in which trial counsel and [military](/usc/10/801.md?p=8) defense counsel are detailed for [military](/usc/10/801.md?p=8) commissions under this chapter and for the [persons](/usc/10/2700.md?p=2) who are authorized to detail such counsel for such [military](/usc/10/801.md?p=8) commissions. - (b) **Trial Counsel.—** Subject to [subsection (e)](#e), a trial counsel detailed for a [military](/usc/10/801.md?p=8) commission under this chapter shall be— - (1) a [judge advocate](/usc/10/801.md?p=13) (as that term is defined in [section 801 of this title](/usc/10/801.md) (article 1 of the Uniform Code of [Military](/usc/10/801.md?p=8) Justice)) who is— - (A) a graduate of an accredited law school or a member of the bar of a Federal court or of the highest court of a [State](/usc/10/4951.md?p=4); and - (B) certified as competent to perform duties as trial counsel before general courts-martial by the [Judge Advocate General](/usc/10/801.md?p=1) of the armed force of which such [judge advocate](/usc/10/801.md?p=13) is a member; or - (2) a civilian who is— - (A) a member of the bar of a Federal court or of the highest court of a [State](/usc/10/4951.md?p=4); and - (B) otherwise qualified to practice before the [military](/usc/10/801.md?p=8) commission pursuant to regulations prescribed by the [Secretary](/usc/10/4951.md?p=3) of Defense. - (c) **Defense Counsel.—** - (1) Subject to [subsection (e)](#e), a [military](/usc/10/801.md?p=8) defense counsel detailed for a [military](/usc/10/801.md?p=8) commission under this chapter shall be a [judge advocate](/usc/10/801.md?p=13) (as so defined) who is— - (A) a graduate of an accredited law school or a member of the bar of a Federal court or of the highest court of a [State](/usc/10/4951.md?p=4); and - (B) certified as competent to perform duties as defense counsel before general courts-martial by the [Judge Advocate General](/usc/10/801.md?p=1) of the armed force of which such [judge advocate](/usc/10/801.md?p=13) is a member. - (2) The [Secretary](/usc/10/4951.md?p=3) of Defense shall prescribe regulations for the appointment and performance of defense counsel in capital cases under this chapter. - (d) **Chief Prosecutor; Chief Defense Counsel.—** - (1) The Chief Prosecutor in a [military](/usc/10/801.md?p=8) commission under this chapter shall meet the requirements set forth in [subsection (b)(1)](#b-1). - (2) The Chief Defense Counsel in a [military](/usc/10/801.md?p=8) commission under this chapter shall meet the requirements set forth in [subsection (c)(1)](#c-1). - (e) **Ineligibility of Certain Individuals.—** No [person](/usc/10/2700.md?p=2) who has acted as an investigator, [military judge](/usc/10/801.md?p=10), or member of a [military](/usc/10/801.md?p=8) commission under this chapter in any case may act later as trial counsel or [military](/usc/10/801.md?p=8) defense counsel in the same case. No [person](/usc/10/2700.md?p=2) who has acted for the prosecution before a [military](/usc/10/801.md?p=8) commission under this chapter may act later in the same case for the defense, nor may any [person](/usc/10/2700.md?p=2) who has acted for the defense before a [military](/usc/10/801.md?p=8) commission under this chapter act later in the same case for the prosecution. ## Source credit (Added Pub. L. 111–84, div. A, title XVIII, § 1802, Oct. 28, 2009, 123 Stat. 2577.) ## Notes ### Editorial Notes ### Prior Provisions A prior section 948k, added Pub. L. 109–366, § 3(a)(1), Oct. 17, 2006, 120 Stat. 2604, related to detail of trial counsel and defense counsel, prior to the general amendment of this chapter by Pub. L. 111–84. ### Statutory Notes and Related Subsidiaries ### Grade of Chief Prosecutor and Chief Defense Counsel in Military Commissions Established To Try Individuals Detained at Guantanamo Pub. L. 113–66, div. A, title X, § 1037, Dec. 26, 2013, 127 Stat. 854, provided that: In General.—For purposes of any military commission established under chapter 47A of title 10, United States Code, to try an alien unprivileged enemy belligerent (as such terms are defined in section 948a of such title) who is detained at United States Naval Station, Guantanamo Bay, Cuba, the chief defense counsel and the chief prosecutor shall have the same grade (as that term is defined in section 101(b)(7) of such title).Waiver.— In general.—The Secretary of Defense may temporarily waive the requirement specified in subsection (a), if the Secretary determines that compliance with such subsection would— be infeasible due to a non-availability of qualified officers of the same grade to fill the billets of chief defense counsel and chief prosecutor; or cause a significant disruption to proceedings established under chapter 47A of title 10, United States Code. Reports.—Not later than 30 days after the Secretary issues a waiver under paragraph (1), the Secretary shall submit to the Committees on Armed Services of the Senate and the House of Representatives the following: A copy of the waiver and the determination of the Secretary to issue the waiver. A statement of the basis for the determination, including an explanation of the non-availability of qualified officers or the significant disruption concerned. Notice of the time period during which the waiver is in effect. Guidance.—Not later than 60 days after the date of the enactment of this Act [Dec. 26, 2013], the Secretary of Defense shall issue guidance to ensure that the office of the chief defense counsel and the office of the chief prosecutor receive equitable resources, personnel support, and logistical support for conducting their respective duties in connection with any military commission established under chapter 47A of title 10, United States Code, to try an alien unprivileged enemy belligerent (as such terms are defined in section 948a of such title) who is detained at United States Naval Station, Guantanamo Bay, Cuba.”