[Congressional Bills 107th Congress]
[From the U.S. Government Publishing Office]
[S. 1937 Introduced in Senate (IS)]







107th CONGRESS
  2d Session
                                S. 1937

To set forth certain requirements for trials and sentencing by military 
                  commissions, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           February 13, 2002

Mr. Specter (for himself and Mr. Durbin) introduced the following bill; 
  which was read twice and referred to the Committee on Armed Services

_______________________________________________________________________

                                 A BILL


 
To set forth certain requirements for trials and sentencing by military 
                  commissions, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Military Commission Procedures Act 
of 2002''.

SEC. 2. DECLARATION OF LEGISLATIVE AUTHORITY.

    The requirements, conditions, and restrictions provided in this Act 
are imposed in the exercise of the authority of Congress under clauses 
1, 10, 11, 12, 13, 14, and 18 of section 8 of article I of the 
Constitution.

SEC. 3. APPLICABILITY.

    The provisions of this Act shall apply with respect to each 
military commission established by, or pursuant to authority granted 
by, the President (whether by the Military Order of November 13, 2001, 
or otherwise) to try an individual who is not a United States citizen 
and with respect to whom the President determines that--
            (1) there is reason to believe that the individual, at the 
        relevant times--
                    (A) is or was a member of the organization known as 
                al Qaeda;
                    (B) 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
                    (C) has knowingly harbored one or more individuals 
                described in subparagraph (A) or (B); and
            (2) it is in the interest of the United States that such 
        individual be subject to trial by a military commission on such 
        charge.

SEC. 4. SUBJECT MATTER JURISDICTION.

    A military commission may only adjudicate violations of the 
international law of war.

SEC. 5. COMPOSITION OF MILITARY COMMISSION.

    (a) Minimum Number of Members.--A military commission shall consist 
of not less than five members.
    (b) Absent or Excused Members.--No member of a military commission 
may be absent or excused after the military commission has been 
assembled for the trial of the defendant unless excused as a result of 
a challenge or excused by the Secretary of Defense for physical 
disability or other good cause.
    (c) Replacement of Excused Members.--Whenever a military commission 
is reduced below five members, the trial may not proceed unless the 
Secretary of Defense details new members sufficient in number to 
provide not less than five members. The trial may proceed with the new 
members present after the recorded evidence previously introduced 
before the members of the military commission has been read to the 
military commission in the presence of the other members of the 
military commission, the defendant, and counsel for both sides.

SEC. 6. REPRESENTATION BY COUNSEL.

    (a) In General.--A defendant charged with any offense referred or 
to be referred to trial by a military commission shall have the same 
rights to representation by counsel as does an accused in a general 
court-martial under chapter 47 of title 10, United States Code (the 
Uniform Code of Military Justice).
    (b) Civilian Counsel.--
            (1) Security clearance.--
                    (A) Expedited consideration.--The Secretary of 
                Defense shall ensure that a civilian counsel 
                representing a defendant before a military commission 
                is timely processed for the security clearance required 
                for access to materials necessary for providing the 
                defendant with effective assistance of counsel.
                    (B) Counsel ineligible for clearance.--
                Notwithstanding subsection (a), a defendant referred to 
                in that subsection is not entitled to be represented by 
                a civilian counsel who is not eligible for the 
                necessary security clearance, as determined in writing 
                by the Secretary of Defense. The determination of the 
                Secretary shall be final and is not subject to appeal 
                to, or other review by, any court of the United States.
            (2) Travel expenses.--The Secretary of Defense shall pay a 
        civilian counsel for travel away from the counsel's home or 
        regular place of business in connection with the representation 
        of a defendant before a military commission. The rates for the 
        payment of travel expenses shall be those authorized for 
        employees of agencies under subchapter I of chapter 57 of title 
        5, United States Code.

SEC. 7. TRIAL PROCEDURES.

    (a) Trial and Sentencing Phases.--Each trial by a military 
commission shall be composed of two phases, as follows:
            (1) Hearing on issue of guilt.--A hearing for the 
        presentation of evidence and argument on the issue of guilt.
            (2) Hearing on sentencing.--A hearing, after any verdict of 
        guilty, for the presentation of evidence and argument on the 
        issue of appropriate sentence.
    (b) Confrontation of Witnesses.--Subject to section 8(c), a 
defendant in a trial by a military commission shall have--
            (1) the right to confront and cross-examine each witness 
        providing evidence offered by the prosecution against the 
        defendant in the trial; and
            (2) the right to examine all evidence offered by the 
        prosecution against the defendant in the trial.
    (c) Notice of Referral as Capital Offense.--For a charged offense 
to be tried and sentenced as a capital offense by a military commission 
in any case--
            (1) the charge shall specifically set forth an allegation 
        of the aggravating factors on which a sentence of death is 
        justified; and
            (2) the referral of the charge to the military commission 
        shall specify that the maximum punishment authorized for the 
        offense in the case includes death.
    (d) Burden of Proof.--
            (1) Presumption of innocence.--The defendant in a trial by 
        a military commission shall be presumed innocent until proven 
        guilty.
            (2) Standard of proof.--The prosecution shall have the 
        burden of proving guilt of a charged offense beyond a 
        reasonable doubt.
            (3) Capital offenses.--For an offense charged and referred 
        to a military commission as a capital offense, the prosecution 
        shall also have the burden of proving one or more aggravating 
        factors sufficient to justify the sentence of death beyond a 
        reasonable doubt.
    (e) Voting on Issue of Guilt.--
            (1) Capital offenses.--For an offense charged and referred 
        to a military commission as a capital offense--
                    (A) a finding of guilty of the offense as a capital 
                offense results only if all members of the military 
                commission present at the time the vote is taken vote 
                for a finding of guilty and a finding of an alleged 
                aggravating factor or a set of alleged aggravating 
                factors sufficient to justify the sentence of death; or
                    (B) a finding of guilty of the offense as a 
                noncapital offense results only if at least \2/3\ of 
                all members of the military commission present at the 
                time the vote is taken vote for a finding of guilty.
            (2) Other offenses.--In the case of an offense for which 
        the maximum penalty does not include death, a finding of guilty 
        of the offense results only if at least \2/3\ of all members of 
        the military commission present at the time the vote is taken 
        vote for a finding of guilty.
    (f) Voting on Sentence.--A sentence may be adjudged by a military 
commission only if the requisite number of members of the military 
commission vote for that sentence. The requisite number of members is 
as follows:
            (1) Sentence to death.--In the case of a sentence that 
        includes death, all members of the military commission present 
        at the time the vote is taken.
            (2) Sentence to confinement for more than 10 years.--In the 
        case of a sentence that includes confinement for life or more 
        than 10 years, at least \3/4\ of all members of the military 
        commission present at the time the vote is taken.
            (3) Other sentences.--In the case of a sentence not 
        described in paragraph (1) or (2), at least \2/3\ of all 
        members of the military commission present at the time the vote 
        is taken.
    (g) Record of Trial.--
            (1) Requirement for record.--A record of each trial by a 
        military commission shall be prepared promptly after the 
        conclusion of the trial.
            (2) Verbatim transcript.--The record of trial shall include 
        a verbatim written transcript of all sessions of the trial 
        except for sessions that are closed for deliberation and voting 
        by the military commission.
            (3) Exhibits and other evidence.--The record of trial shall 
        also include all exhibits and other real or demonstrative 
        evidence, except that photographs may be substituted for any 
        large written or graphic exhibits and any other real or 
        demonstrative evidence. If a photograph is substituted for an 
        exhibit or other evidence, the prosecution shall retain the 
        original exhibit or other evidence, respectively, until no 
        further appeal of the results of the trial is authorized.
            (4) Classified information.--In the case of a conviction of 
        a charge on which classified information is admitted as 
        evidence by the military commission, the copy of the record of 
        trial submitted to an appellate court shall include the 
        classified information.

SEC. 8. EVIDENTIARY MATTERS.

    (a) Statements of Defendants.--
            (1) Admissibility.--In a trial by a military commission, a 
        statement made by the defendant shall be admissible 
        notwithstanding any failure to advise the defendant, or any 
        defect in the advising of the defendant, under section 831 of 
        title 10, United States Code (article 31 of the Uniform Code of 
        Military Justice), if the statement is otherwise admissible.
            (2) Prohibition of compelled testimony.--A defendant in a 
        trial by a military commission may not be compelled to testify 
        in the trial. A military commission may not draw any 
        evidentiary inference from a failure of the defendant to 
        testify.
    (b) Discovery and Presentation of Exculpatory Evidence.--The 
defendant shall be accorded the opportunity to discover and present 
exculpatory evidence to the same extent as applies to defendants in 
courts-martial under chapter 47 of title 10, United States Code (the 
Uniform Code of Military Justice).
    (c) Classified Information.--
            (1) Admissibility.--A military commission may admit and 
        consider classified information offered by the prosecution in 
        the case of a defendant if the prosecution has previously 
        submitted a summary of the information, approved under this 
        subsection, to the military commission and the defendant. The 
        military commission shall receive and consider the classified 
        information ex parte and in camera.
            (2) Summary of evidence.--Before offering classified 
        information as evidence in a trial before a military 
        commission, the prosecution shall submit a summary of the 
        information to the military commission and the defendant.
            (3) Commission review.--
                    (A) Approval.--The military commission shall 
                approve the summary of classified information if the 
                military commission finds that the summary provides the 
                defendant with information sufficient to ensure that 
                the defendant has substantially the same ability to 
                defend against the charge or charges to which the 
                classified information relates as the defendant would 
                have if the classified information were disclosed to 
                the defendant.
                    (B) Disapproval.--If the military commission 
                disapproves the summary of information, the military 
                commission shall notify the prosecution and the 
                defendant of the disapproval and return the summary to 
                the prosecution with the notification.
                    (C) Revised submittal.--Upon receipt of a 
                notification of a disapproval of a summary of 
                classified information under subparagraph (B), the 
                prosecution may submit a revised summary of the 
                classified information to the military commission and 
                the defendant within 15 days after the date on which 
                the prosecution receives the notification. A revised 
                summary of classified information shall be subject to 
                subparagraphs (A) and (B).
                    (D) Interlocutory appeal.--
                            (i) Authority.--The prosecution may appeal 
                        to the United States Court of Appeals for 
                        Military Commissions established under section 
                        9(b) any disapproval of a summary or revised 
                        summary of classified information under this 
                        paragraph.
                            (ii) Timeliness.--Any appeal under this 
                        subparagraph shall be commenced not later than 
                        15 days after the date on which the prosecution 
                        receives the notification of disapproval from 
                        the military commission.
                            (iii) Documentation.--The prosecution shall 
                        include in the appeal documents the classified 
                        information and the summary and, if any, the 
                        revised summary or summaries of such 
                        information, together with a summary of all of 
                        the other evidence intended to be offered by 
                        the prosecution.
                            (iv) Action by appellate court.--The 
                        appellate court shall conduct a de novo review 
                        of the summary or summaries, as the case may 
                        be, and issue a final ruling on the 
                        interlocutory appeal within 45 days after all 
                        submittals required by the court are filed.

SEC. 9. APPEAL.

    (a) In General.--Any individual convicted by a military commission 
is entitled to a review of that conviction in accordance with this 
section.
    (b) Review by United States Court of Appeals for Military 
Commissions.--
            (1) Establishment of court.--Upon the first determination 
        of the President to try and dispose of any charge before a 
        military commission, there shall be established a court to be 
        known as the United States Court of Appeals for Military 
        Commissions (in this section referred to as the ``Court'').
            (2) Composition.--
                    (A) In general.--The Court shall be composed of 
                three judges publicly designated by the Chief Justice 
                of the United States from among the judges of the 
                United States courts of appeals.
                    (B) Limitation.--No two judges designated for the 
                Court may be from the same court of appeals.
                    (C) Vacancy.--Any vacancy in the Court shall be 
                filled in the same manner as the original designation, 
                subject to subparagraph (B).
            (3) Duration.--The Court shall continue until the final 
        disposition of all matters under the jurisdiction of the Court 
        on any charges that may be tried or disposed of by a military 
        commission.
            (4) Procedure.--The Court shall establish its rules of 
        procedure. Such rules shall be consistent, to the extent 
        practicable, with applicable provisions of the Federal Rules of 
        Appellate Procedure and the rules of procedure prescribed by 
        the United States Court of Appeals for the Armed Forces under 
        section 944 of title 10, United States Code (article 144 of the 
        Uniform Code of Military Justice).
            (5) Jurisdiction.--The Court shall have jurisdiction to 
        review the following:
                    (A) Interlocutory appeal of disapproval of summary 
                of classified information.--Any interlocutory appeal of 
                the disapproval of a summary or revised summary of 
                classified information under section 8(c)(3)(D).
                    (B) Appeal of conviction.--Any appeal of the 
                conviction of an individual by a military commission.
            (6) Proceedings.--Proceedings under this subsection in 
        review of an appeal under paragraph (5)(B) shall be conducted 
        as expeditiously possible.
    (c) Review by Supreme Court.--
            (1) In general.--Decisions by the Court are subject to 
        review by the Supreme Court by writ of certiorari.
            (2) Exemption from certain petition requirements.--An 
        individual may petition the Supreme Court for a writ of 
        certiorari under this subsection without prepayment of fees and 
        costs or security therefor and without filing the affidavit 
        required by section 1915(a) of title 28, United States Code.
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