[Congressional Bills 108th Congress]
[From the U.S. Government Publishing Office]
[H.R. 5222 Introduced in House (IH)]






108th CONGRESS
  2d Session
                                H. R. 5222

 To amend chapter 47 of title 10, United States Code (the Uniform Code 
  of Military Justice), to provide standards for the use of military 
   commissions for the trial of offenses under the law of war or in 
                furtherance of international terrorism.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                            October 5, 2004

Ms. Loretta Sanchez of California introduced the following bill; which 
            was referred to the Committee on Armed Services

_______________________________________________________________________

                                 A BILL


 
 To amend chapter 47 of title 10, United States Code (the Uniform Code 
  of Military Justice), to provide standards for the use of military 
   commissions for the trial of offenses under the law of war or in 
                furtherance of international terrorism.

    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 Commissions Act of 2004''.

SEC. 2. USE OF MILITARY COMMISSIONS FOR OFFENSES UNDER LAW OF WAR OR IN 
              FURTHERANCE OF TERRORISM.

    (a) In General.--Subchapter XI of chapter 47 of title 10, United 
States Code (the Uniform Code of Military Justice), is amended by 
inserting after section 935 (article 135) the following new section:
``Sec. 935a. Art. 135a. Military commissions for offenses against the 
              law of war or in furtherance of terrorism
    ``(a) A military commission covered by this section may be 
appointed only by the President or a person designated by the President 
for such purpose.
    ``(b) A military commission appointed under subsection (a) may try 
any person, not a citizen of the United States, for one or more 
offenses against the law of war or in furtherance of terrorism.
    ``(c) A military commission shall consist of not less than three 
members and not more than seven members. However, in a case in which 
the accused may be sentenced to a penalty of death, the commission 
shall consist of seven members. The commission may also include not 
more than two alternate members. Each member and alternate member shall 
be a commissioned officer of the armed forces.
    ``(d) A military commission shall have a presiding officer, who 
shall be appointed from among the members. The presiding officer shall 
be a judge advocate and shall preside over the proceedings of the 
commission to ensure a full, fair, and expeditious trial. The presiding 
officer shall rule upon all questions of law and all interlocutory 
questions arising during the proceedings. A majority of the members may 
overrule the presiding officer on any ruling that excludes evidence on 
the merits.
    ``(e) Trial and defense counsel shall be detailed for a military 
commission on the same basis as such counsel are detailed for a general 
court-martial under section 827 (article 27).
    ``(f) Members of a military commission shall deliberate and vote in 
closed conference. Voting on the findings and on the sentence shall be 
by secret written ballot.
    ``(g) A military commission covered by this section may not find a 
person guilty of an offense, and may not determine a sentence, except 
by the concurrence of two-thirds of the members present at the time the 
vote is taken. The commission may not sentence a person to suffer death 
except by the concurrence of all the members as to the findings and as 
to the sentence.
    ``(h) A military commission may, under such limitations as the 
President may prescribe, adjudge any punishment permitted by the law of 
war, including death, imprisonment for life or for any lesser term, 
payment of a fine or restitution, or such other lawful punishment or 
punishments as the commission shall determine to be proper. The 
sentence of death may be adjudged only if the accused has been found 
guilty of spying or an offense causing the death of one or more 
persons. A commission may not sentence any person to suffer death for 
an offense committed before the person attained the age of eighteen 
years. A sentence of death may not be executed until approved by the 
President.
    ``(i) Pursuant to section 936 (Article 36) of the chapter, the 
President may prescribe rules of evidence and procedure for trial by a 
military commission. The accused in a military commission shall be 
given the following minimum rights and protections:
            ``(1) The accused shall have the right to a fair trial, 
        without adverse distinction based upon race, color, gender, 
        language, religion, birth, wealth, or any similar criteria.
            ``(2) The accused shall be presumed innocent until proven 
        guilty. The burden of proof shall be upon the prosecution to 
        prove each element of an offense beyond a reasonable doubt.
            ``(3) The accused shall be informed of the charges against 
        him in a language he understands as soon as practicable prior 
        to trial.
            ``(4) The accused shall have the right to a public trial, 
        unless the appointing authority determines that a closed trial, 
        or any portion thereof, is necessary to the national security 
        of the United States.
            ``(5) The accused may not be compelled to testify or 
        present evidence against himself.
            ``(6) No adverse inference will be drawn against him by 
        reason of a decision not to testify on his own behalf.
            ``(7) Evidence obtained through the use of torture (as 
        defined in section 2340 of title 18), will not be admitted in 
        evidence at trial by a military commission.
            ``(8) The accused shall be entitled to assistance of 
        counsel at all stages of proceedings and shall have adequate 
        time and facilities available for the preparation of his 
        defense. The accused shall have the right to represent himself 
        in trail by military commission, subject to the discretion of 
        the presiding officer.
            ``(9) The accused shall have the right to present evidence 
        and to cross-examine each witness.
            ``(10) The accused shall have equal opportunity to obtain 
        witnesses and other evidence in accordance with such 
        regulations as the President may prescribe.
            ``(11) The accused shall have access to all evidence that 
        trial counsel intends to offer at trial and all evidence known 
        to trial counsel or to the commission that tends to exculpate 
        him.
            ``(12) The accused shall have the right to be present at 
        each stage of the proceedings, unless he engages in conduct 
        that the presiding officer determines to be disruptive.
            ``(13) The accused shall not be tried a second time for the 
        same offense.
    ``(j) A person found guilty by military commission shall have a 
right to review of that finding and any adjudged sentence in accordance 
with this section.
    ``(k)(1) After trial, the presiding officer shall promptly 
authenticate a verbatim transcript and record of trial.
    ``(2) The appointing authority shall, within a reasonable period of 
time, carry out an administrative review of the transcript and record 
of trial and take such administrative actions as the authority 
considers appropriate, which may include directing the commission to 
conduct any necessary supplemental proceedings.
    ``(3) The Secretary of Defense shall review the record of trial 
and, within a reasonable period of time, take one or more of the 
following actions of the case:
            ``(A) Approve, disapprove, commute, mitigate, or suspend 
        the sentence in whole or in part.
            ``(B) Approve or disapprove a finding of guilty, or change 
        a finding of guilty to a charge or specification to a finding 
        of guilty to a lesser included offense of the offense stated in 
        the charge.
    ``(4)(A) Following action by the Secretary of Defense, the Court of 
Appeals for the Armed Forces shall review the record of a military 
commission--
            ``(i) in any case in which the sentence extends to death or 
        to confinement in excess of five years; and
            ``(ii) in any other case that the President may prescribe.
    ``(B) In any case reviewed by it under this subsection, the Court 
of Appeals for the Armed Forces may act only with respect to the 
findings and sentence as in effect after review by the convening 
authority and the Secretary of Defense under subsection (k)(3).
    ``(C) The Court of Appeals for the Armed Forces shall take action 
only with respect to matters of law and shall take such action as is 
permitted under section 867 (Article 67) of this chapter.
    ``(5) The Supreme Court of the United States shall have 
jurisdiction to review, by writ of certiorari, an action of the Court 
of Appeals for the Armed Forces under this subsection.
    ``(l) The Secretary of Defense shall submit to Congress each order, 
rule, and regulation prescribed under this section. Such order, rule, 
or regulation may not take effect until 30 days after it is so 
submitted.
    ``(m) Not later than March 15 of each year, the Secretary of 
Defense shall submit to Congress a report on the use of military 
commissions covered by this section during the preceding calendar year. 
The report shall set forth a summary of each case covered by this 
section during such year, together with the disposition and current 
status of that case. The report shall also set forth a detailed 
description of the activities of the Department with respect to 
military commissions, a copy of all current rules and regulations 
relating to the use of military commissions, and an accounting of all 
funds expended on matters relating to the use of military 
commissions.''.
    (b) The table of sections at the beginning of such subchapter is 
amended by adding at the end the following new item:

``935a. Art. 135a. Military commissions for offenses against the law of 
                            war or in furtherance of terrorism.''.
                                 <all>