(a) Conviction.— No person may be convicted by a military commission under this chapter of any offense, except as provided in section
949i (b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken.
(b) Sentences.—
(1) No person may be sentenced by a military commission to suffer death, except insofar as
(A) the penalty of death is expressly authorized under this chapter or the law of war for an offense of which the accused has been found guilty;
(B) trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial;
(C) the accused is convicted of the offense by the concurrence of all the members present at the time the vote is taken; and
(D) all the members present at the time the vote is taken concur in the sentence of death.
(2) No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken.
(3) All other sentences shall be determined by a military commission by the concurrence of two-thirds of the members present at the time the vote is taken.
(c) Number of Members Required for Penalty of Death.—
(1) Except as provided in paragraph (2), in a case in which the penalty of death is sought, the number of members of the military commission under this chapter shall be not less than 12.
(2) In any case described in paragraph (1) in which 12 members are not reasonably available because of physical conditions or military exigencies, the convening authority shall specify a lesser number of members for the military commission (but not fewer than 9 members), and the military commission may be assembled, and the trial held, with not fewer than the number of members so specified. In such a case, the convening authority shall make a detailed written statement, to be appended to the record, stating why a greater number of members were not reasonably available.
