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:

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