[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 6054 Reported in House (RH)]







                                                 Union Calendar No. 409
109th CONGRESS
  2d Session
                                H. R. 6054

                  [Report No. 109-664, Parts I and II]

 To amend title 10, United States Code, to authorize trial by military 
  commission for violations of the law of war, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                           September 12, 2006

 Mr. Hunter (for himself, Mr. Boehner, Mr. Sensenbrenner, Mr. Calvert, 
Mrs. Miller of Michigan, Mr. Miller of Florida, Mr. Shuster, Mr. Franks 
 of Arizona, Mr. Wilson of South Carolina, Mr. Saxton, Mr. Porter, Mr. 
    Kline, Mr. Hefley, Mr. Hayes, Mr. Sweeney, Mr. Chocola, and Mr. 
  LoBiondo) introduced the following bill; which was referred to the 
 Committee on Armed Services, and in addition to the Committees on the 
Judiciary and International Relations, for a period to be subsequently 
   determined by the Speaker, in each case for consideration of such 
 provisions as fall within the jurisdiction of the committee concerned

                           September 15, 2006

     Reported from the Committee on Armed Services with amendments
  [Omit the part struck through and insert the part printed in italic]

                           September 15, 2006

Referral to the Committees on the Judiciary and International Relations 
     extended for a period ending not later than September 18, 2006

                           September 18, 2006

          The Committee on International Relations discharged

                           September 18, 2006

Referral to the Committee on the Judiciary extended for a period ending 
                   not later than September 25, 2006

                           September 25, 2006

     Additional sponsors: Mr. Renzi, Ms. Granger, and Mrs. Schmidt

                           September 25, 2006

Reported from the Committee on the Judiciary with amendments, committed 
  to the Committee of the Whole House on the State of the Union, and 
                         ordered to be printed
  [Omit the part struck through and insert the part printed in italic]

_______________________________________________________________________

                                 A BILL


 
 To amend title 10, United States Code, to authorize trial by military 
  commission for violations of the law of war, 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; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Military 
Commissions Act of 2006''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

 1. Short title; table of contents.
 2. Construction of Presidential authority to establish military 
                            commissions.
 3. Military commissions.
 4. Clarification of conduct constituting war crime offense under 
                            Federal Criminal Code.
 5. Judicial review.
 6. Satisfaction of treaty obligations.
 7. Revisions to Detainee Treatment Act of 2005 relating to protection 
                            of certain United States Government 
                            personnel.
 8. Retroactive applicability.

SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH MILITARY 
              COMMISSIONS.

    The authority to establish military commissions under chapter 47A 
of title 10, United States Code, as added by section 3(a), may not be 
construed to alter or limit the authority of the President under the 
Constitution to establish military commissions on the battlefield or in 
occupied territories should circumstances so require.

SEC. 3. MILITARY COMMISSIONS.

    (a) Military Commissions.--
            (1) In general.--Subtitle A of title 10, United States 
        Code, is amended by inserting after chapter 47 the following 
        new chapter:

                  ``CHAPTER 47A--MILITARY COMMISSIONS

``Subchapter
``I. General Provisions.....................................      948a 
``II. Composition of Military Commissions...................      948h 
``III. Pre-Trial Procedure..................................      948q 
``IV. Trial Procedure.......................................      949a 
``V. Sentences..............................................      949s 
``VI. Post-Trial Procedure and Review of Military                 950a 
                            Commissions.
``VII. Punitive Matters.....................................      950p 

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.
``Sec. 948a. Definitions
    ``In this chapter:
            ``(1) Unlawful enemy combatant.--(A) The term `unlawful 
        enemy combatant' means an individual determined by or under the 
        authority of the President or the Secretary of Defense--
                    ``(i) to be part of or affiliated with a force or 
                organization (including al Qaeda, the Taliban, any 
                international terrorist organization, or associated 
                forces) that is engaged in hostilities against the 
                United States or its co-belligerents in violation of 
                the law of war;
                    ``(ii) to have committed a hostile act in aid of 
                such a force or organization so engaged; or
                    ``(iii) to have supported hostilities in aid of 
                such a force or organization so engaged.
            ``(B) Such term includes any individual determined by a 
        Combatant Status Review Tribunal before the date of the 
        enactment of the Military Commissions Act of 2006 to have been 
        properly detained as an enemy combatant.
            ``(C) Such term does not include any alien determined by 
        the President or the Secretary of Defense (whether on an 
        individualized or collective basis), or by any competent 
        tribunal established under their authority, to be--
                    ``(i) a lawful enemy combatant (including a 
                prisoner of war); or
                    ``(ii) a protected person whose trial by a military 
                commission under this chapter would be inconsistent 
                with Articles 64 through 76 of the Geneva Convention 
                Relative to the Protection of Civilian Persons in Time 
                of War of August 12, 1949.
            ``(D) For purposes of subparagraph (C)(ii), the term 
        `protected person' refers to the category of persons described 
        in Article 4 of the Geneva Convention Relative to the 
        Protection of Civilian Persons in Time of War of August 12, 
        1949.
            ``(2) Lawful enemy combatant.--The term `lawful enemy 
        combatant' means an individual determined by or under the 
        authority of the President or Secretary of Defense (whether on 
        an individualized or collective basis) to be--
                    ``(A) a member of the regular forces of a State 
                party engaged in hostilities against the United States 
                or its co-belligerents;
                    ``(B) a member of a militia, volunteer corps, or 
                organized resistance movement belonging to a State 
                party engaged in such hostilities, which are under 
                responsible command, wear a fixed distinctive sign 
                recognizable at a distance, carry their arms openly, 
                and abide by the law of war; or
                    ``(C) a member of a regular armed forces who 
                professes allegiance to a government engaged in such 
                hostilities, but not recognized by the United States.
            ``<DELETED>(2)</DELETED> (3) Geneva conventions.--The term 
        `Geneva Conventions' means the international conventions signed 
        at Geneva on August 12, 1949, including Common Article 3.
            ``<DELETED>(3)</DELETED> (4) Classified information.--The 
        term `classified information' means the following:
                    ``(A) Any information or material that has been 
                determined by the United States Government pursuant to 
                statute, Executive order, or regulation to require 
                protection against unauthorized disclosure for reasons 
                of national security.
                    ``(B) Any restricted data, as that term is defined 
                in section 11 y. of the Atomic Energy Act of 1954 (42 
                U.S.C. 2014(y)).
            ``<DELETED>(4)</DELETED> (5) Alien.--The term `alien' means 
        an individual who is not a citizen of the United States.
``Sec. 948b. Military commissions generally
    ``(a) Authority for Military Commissions Under This Chapter.--The 
President is authorized to establish military commissions for 
violations of offenses triable by military commission as provided in 
this chapter.
    ``(b) Construction of Provisions.--The procedures for military 
commissions set forth in this chapter are based upon the procedures for 
trial by general courts-martial under chapter 47 of this title (the 
Uniform Code of Military Justice). Chapter 47 of this title, including 
any construction or application of such chapter and any administrative 
practice under such chapter, does not apply to trial by military 
commission under this chapter.
    ``(c) Status of Commissions Under Common Article 3.--A military 
commission established under this chapter is a regularly constituted 
court, affording all the necessary `judicial guarantees which are 
recognized as indispensable by civilized peoples' for purposes of 
common Article 3 of the Geneva Conventions.
``Sec. 948c. Persons subject to military commissions
    ``Any alien unlawful enemy combatant is subject to trial by 
military commission under this chapter.
``Sec. 948d. Jurisdiction of military commissions
    ``(a) Jurisdiction.--A military commission under this chapter shall 
have jurisdiction to try any offense made punishable by this chapter 
when committed by an alien unlawful enemy combatant before, on, or 
after September 11, 2001.
    ``(b) Lawful Enemy Combatants.--Military commissions under this 
chapter shall not have jurisdiction over lawful enemy combatants. 
Lawful enemy combatants who violate the law of war are subject to 
chapter 47 of this title. Courts martial established under that chapter 
shall have jurisdiction to try a lawful enemy combatant for any offense 
made punishable under this chapter.
    ``<DELETED>(b)</DELETED> (c) Punishments.--A military commission 
under this chapter may, under such limitations as the Secretary of 
Defense may prescribe, adjudge any punishment not forbidden by this 
chapter, including the penalty of death when authorized under this 
chapter.
``Sec. 948e. Annual report to congressional committees
    ``(a) Annual Report Required.--Not later than December 31 each 
year, the Secretary of Defense shall submit to the Committees on Armed 
Services of the Senate and the House of Representatives a report on any 
trials conducted by military commissions under this chapter during such 
year.
    ``(b) Form.--Each report under this section shall be submitted in 
unclassified form, but may include a classified annex.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judges.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional 
                            members.
``Sec. 948h. Who may convene military commissions
    ``Military commissions under this chapter may be convened by the 
Secretary of Defense or by any officer or official of the United States 
designated by the Secretary for that purpose.
``Sec. 948i Who may serve on military commissions
    ``(a) In General.--Any commissioned officer of the armed forces on 
active duty is eligible to serve on a military commission under this 
chapter.
    ``(b) Detail of Members.--When convening a military commission 
under this chapter, the convening authority shall detail as members of 
the commission such members of the armed forces eligible under 
subsection (a), as in the opinion of the convening authority, are fully 
qualified for the duty by reason of age, education, training, 
experience, length of service, and judicial temperament. No member of 
an armed force is eligible to serve as a member of a military 
commission when such member is the accuser or a witness for the 
prosecution or has acted as an investigator or counsel in the same 
case.
    ``(c) Excuse of Members.--Before a military commission under this 
chapter is assembled for the trial of a case, the convening authority 
may excuse a member from participating in the case.
``Sec. 948j. Military judges
    ``(a) Detail of Military Judge.--A military judge shall be detailed 
to each military commission under this chapter. The Secretary of 
Defense shall prescribe regulations providing for the manner in which 
military judges are so detailed to military commissions. The military 
judge shall preside over each military commission to which he has been 
detailed.
    ``(b) Qualifications.--A military judge shall be a commissioned 
officer of the armed forces who is a member of the bar of a Federal 
court, or a member of the bar of the highest court of a State, and who 
is certified to be qualified for duty under section 826 of this title 
(article 26 of the Uniform Code of Military Justice) as a military 
judge in general courts-martial by the Judge Advocate General of the 
armed force of which such military judge is a member.
    ``(c) Ineligibility of Certain Individuals.--No person is eligible 
to act as military judge in a case of a military commission under this 
chapter if he is the accuser or a witness or has acted as investigator 
or a counsel in the same case.
    ``(d) Consultation With Members; Ineligibility to Vote.--A military 
judge detailed to a military commission under this chapter may not 
consult with the members of the commission except in the presence of 
the accused (except as otherwise provided in section 949d of this 
title), trial counsel, and defense counsel, nor may he vote with the 
members of the commission.
    ``(e) Other Duties.--A commissioned officer who is certified to be 
qualified for duty as a military judge of a military commission under 
this chapter may perform such other duties as are assigned to him by or 
with the approval of the Judge Advocate General of the armed force of 
which such officer is a member or the designee of such Judge Advocate 
General.
    ``(f) Prohibition on Evaluation of Fitness by Convening 
Authority.--The convening authority of a military commission under this 
chapter shall not prepare or review any report concerning the 
effectiveness, fitness, or efficiency of a military judge detailed to 
the military commission which relates to his performance of duty as a 
military judge on the military commission.
``Sec. 948k. Detail of trial counsel and defense counsel
    ``(a) Detail of Counsel Generally.--(1) Trial counsel and military 
defense counsel shall be detailed for each military commission under 
this chapter.
    ``(2) Assistant trial counsel and assistant and associate defense 
counsel may be detailed for a military commission under this chapter.
    ``(3) Military defense counsel for a military commission under this 
chapter shall be detailed as soon as practicable after the swearing of 
charges against the accused.
    ``(4) The Secretary of Defense shall prescribe regulations 
providing for the manner in which trial counsel and military defense 
counsel are detailed for military commissions under this chapter and 
for the persons who are authorized to detail such counsel for such 
commissions.
    ``(b) Trial Counsel.--Subject to subsection (d), trial counsel 
detailed for a military commission under this chapter must be--
            ``(1) a judge advocate (as that term is defined in section 
        801 of this title (article 1 of the Uniform Code of Military 
        Justice) who is--
                    ``(A) a graduate of an accredited law school or is 
                a member of the bar of a Federal court or of the 
                highest court of a State; and
                    ``(B) certified as competent to perform duties as 
                trial counsel before general courts-martial by the 
                Judge Advocate General of the armed force of which he 
                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; and
                    ``(B) otherwise qualified to practice before the 
                military commission pursuant to regulations prescribed 
                by the Secretary of Defense.
    ``(c) Military Defense Counsel.--Subject to subsection (d), 
military defense counsel detailed for a military commission under this 
chapter must be a judge advocate (as so defined) who is--
            ``(1) a graduate of an accredited law school or is a member 
        of the bar of a Federal court or of the highest court of a 
        State; and
            ``(2) certified as competent to perform duties as defense 
        counsel before general courts-martial by the Judge Advocate 
        General of the armed force of which he is a member.
    ``(d) Ineligibility of Certain Individuals.--No person who has 
acted as an investigator, military judge, or member of a military 
commission under this chapter in any case may act later as trial 
counsel or military defense counsel in the same case. No person who has 
acted for the prosecution before a military commission under this 
chapter may act later in the same case for the defense, nor may any 
person who has acted for the defense before a military commission under 
this chapter act later in the same case for the prosecution.
``Sec. 948l. Detail or employment of reporters and interpreters
    ``(a) Court Reporters.--Under such regulations as the Secretary of 
Defense may prescribe, the convening authority of a military commission 
under this chapter shall detail to or employ for the commission 
qualified court reporters, who shall make a verbatim recording of the 
proceedings of and testimony taken before the commission.
    ``(b) Interpreters.--Under such regulations as the Secretary of 
Defense may prescribe, the convening authority of a military commission 
under this chapter may detail to or employ for the military commission 
interpreters who shall interpret for the commission and, as necessary, 
for trial counsel and defense counsel.
    ``(c) Transcript; Record.--The transcript of a military commission 
under this chapter shall be under the control of the convening 
authority of the commission, who shall also be responsible for 
preparing the record of the proceedings.
``Sec. 948m. Number of members; excuse of members; absent and 
              additional members
    ``(a) Number of Members.--(1) A military commission under this 
chapter shall, except as provided in paragraph (2), have at least five 
members.
    ``(2) In a case in which the death penalty is sought, the military 
commission shall have the number of members prescribed by section 
949m(c) of this title.
    ``(b) Excuse of Members.--No member of a military commission under 
this chapter may be absent or excused after the military commission has 
been assembled for the trial of a case unless excused--
            ``(1) as a result of challenge;
            ``(2) by the military judge for physical disability or 
        other good cause; or
            ``(3) by order of the convening authority for good cause.
    ``(c) Absent and Additional Members.--Whenever a military 
commission under this chapter is reduced below the number of members 
required by subsection (a), the trial may not proceed unless the 
convening authority details new members sufficient to provide not less 
than such number. The trial may proceed with the new members present 
after the recorded evidence previously introduced before the members 
has been read to the military commission in the presence of the 
military judge, the accused (except as provided in section 949d of this 
title), and counsel for both sides.

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; treatment of 
                            statements obtained by torture and other 
                            statements.
``948s. Service of charges.
``Sec. 948q. Charges and specifications
    ``(a) Charges and Specifications.--Charges and specifications 
against an accused in a military commission under this chapter shall be 
signed by a person subject to chapter 47 of this title under oath 
before a commissioned officer of the armed forces authorized to 
administer oaths and shall state--
            ``(1) that the signer has personal knowledge of, or reason 
        to believe, the matters set forth therein; and
            ``(2) that they are true in fact to the best of the 
        signer's knowledge and belief.
    ``(b) Notice to Accused.--Upon the swearing of the charges and 
specifications in accordance with subsection (a), the accused shall be 
informed of the charges against him as soon as practicable.
``Sec. 948r. Compulsory self-incrimination prohibited; treatment of 
              statements obtained by torture and other statements
    ``(a) In General.--No person shall be required to testify against 
himself at a proceeding of a military commission under this chapter.
    ``(b) Exclusion of Statements Obtained by Torture.--A statement 
obtained by use of torture, whether or not under color of law, shall 
not be admissible against the accused in a military commission under 
this chapter, except against a person accused of torture as evidence 
the statement was made.
    ``(c) Other Statements.--An otherwise admissible statement, 
including a statement allegedly obtained by coercion, shall not be 
admitted in evidence in a military commission under this chapter if the 
military judge finds that the circumstances under which the statement 
was made render the statement unreliable or lacking in probative value.
    ``(d) Torture.--In this section, the term `torture' has the meaning 
given that term in section 2340 of title 18.
``Sec. 948s. Service of charges
    ``The trial counsel assigned to a case before a military commission 
under this chapter shall cause to be served upon the accused and 
military defense counsel a copy of the charges upon which trial is to 
be had. Such charges shall be served in English and, if appropriate, in 
another language that the accused understands. Such service shall be 
made sufficiently in advance of trial to prepare a defense.

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``Sec. 949a. Rules
    ``(a) Procedures.--Pretrial, trial, and post-trial procedures, 
including elements and modes of proof, for cases triable by military 
commission under this chapter shall be prescribed by the Secretary of 
Defense, but may not be contrary to or inconsistent with this chapter.
    ``(b) Rules of Evidence.--(1) Subject to such exceptions and 
limitations as the Secretary may prescribe by regulation, evidence in a 
military commission under this chapter shall be admissible if the 
military judge determines that the evidence would have probative value 
to a reasonable person.
    ``(2) Hearsay evidence is admissible unless the military judge 
finds that the circumstances render the evidence unreliable or lacking 
in probative value. However, such evidence may be admitted only if the 
proponent of the evidence makes the evidence known to the adverse party 
in advance of trial or hearing.
    ``(3) The military judge shall exclude any evidence the probative 
value of which is substantially outweighed--
            ``(A) by the danger of unfair prejudice, confusion of the 
        issues, or misleading the members of the commission; or
            ``(B) by considerations of undue delay, waste of time, or 
        needless presentation of cumulative evidence.
    ``(c) Notification to Congressional Committees of Changes to 
Procedures.--Not later than 60 days before the date on which any 
proposed modification of the procedures in effect for military 
commissions under this chapter goes into effect, the Secretary of 
Defense shall submit to the Committee on Armed Services of the Senate 
and the Committee on Armed Services of the House of Representatives a 
report describing the modification.
``Sec. 949b. Unlawfully influencing action of military commission
    ``(a) In General.--(1) No authority convening a military commission 
under this chapter may censure, reprimand, or admonish the military 
commission, or any member, military judge, or counsel thereof, with 
respect to the findings or sentence adjudged by the military 
commission, or with respect to any other exercises of its or his 
functions in the conduct of the proceedings.
    ``(2) No person may attempt to coerce or, by any unauthorized 
means, influence the action of a military commission under this 
chapter, or any member thereof, in reaching the findings or sentence in 
any case, or the action of any convening, approving, or reviewing 
authority with respect to his judicial acts.
    ``(3) Paragraphs (1) and (2) do not apply with respect to--
            ``(A) general instructional or informational courses in 
        military justice if such courses are designed solely for the 
        purpose of instructing members of a command in the substantive 
        and procedural aspects of military commissions; or
            ``(B) statements and instructions given in open proceedings 
        by a military judge or counsel.
    ``(b) Prohibition on Consideration of Actions on Commission in 
Evaluation of Fitness.--In the preparation of an effectiveness, 
fitness, or efficiency report or any other report or document used in 
whole or in part for the purpose of determining whether a commissioned 
officer of the armed forces is qualified to be advanced in grade, or in 
determining the assignment or transfer of any such officer or whether 
any such officer should be retained on active duty, no person may--
            ``(1) consider or evaluate the performance of duty of any 
        member of a military commission under this chapter; or
            ``(2) give a less favorable rating or evaluation to any 
        commissioned officer because of the zeal with which such 
        officer, in acting as counsel, represented any accused before a 
        military commission under this chapter.
``Sec. 949c. Duties of trial counsel and defense counsel
    ``(a) Trial Counsel.--The trial counsel of a military commission 
under this chapter shall prosecute in the name of the United States.
    ``(b) Defense Counsel.--(1) The accused shall be represented in his 
defense before a military commission under this chapter as provided in 
this subsection.
    ``(2) The accused shall be represented by military counsel detailed 
under section 948k of this title.
    ``(3) The accused may be represented by civilian counsel if 
retained by the accused, but only if such civilian counsel--
            ``(A) is a United States citizen;
            ``(B) is admitted to the practice of law in a State, 
        district, or possession of the United States or before a 
        Federal court;
            ``(C) has not been the subject of any sanction of 
        disciplinary action by any court, bar, or other competent 
        governmental authority for relevant misconduct;
            ``(D) has been determined to be eligible for access to 
        classified information that is classified at the level Secret 
        or higher; and
            ``(E) has signed a written agreement to comply with all 
        applicable regulations or instructions for counsel, including 
        any rules of court for conduct during the proceedings.
    ``(4) Civilian defense counsel shall protect any classified 
information received during the course of representation of the accused 
in accordance with all applicable law governing the protection of 
classified information and may not divulge such information to any 
person not authorized to receive it.
    ``(5) If the accused is represented by civilian counsel, military 
counsel detailed shall act as associate counsel.
    ``(6) The accused is not entitled to be represented by more than 
one military counsel. However, the person authorized under regulations 
prescribed under section 948k of this title to detail counsel, in that 
person's sole discretion, may detail additional military counsel to 
represent the accused.
    ``(7) Defense counsel may cross-examine each witness for the 
prosecution who testifies before a military commission under this 
chapter.
``Sec. 949d. Sessions
    ``(a) Sessions Without Presence of Members.--(1) At any time after 
the service of charges which have been referred for trial by military 
commission under this chapter, the military judge may call the military 
commission into session without the presence of the members for the 
purpose of--
            ``(A) hearing and determining motions raising defenses or 
        objections which are capable of determination without trial of 
        the issues raised by a plea of not guilty;
            ``(B) hearing and ruling upon any matter which may be ruled 
        upon by the military judge under this chapter, whether or not 
        the matter is appropriate for later consideration or decision 
        by the members;
            ``(C) if permitted by regulations prescribed by the 
        Secretary of Defense, receiving the pleas of the accused; and
            ``(D) performing any other procedural function which may be 
        performed by the military judge under this chapter or under 
        rules prescribed pursuant to section 949a of this title and 
        which does not require the presence of the members.
    ``(2) Except as provided in subsections (c), (d), and (e), any 
proceedings under paragraph (1) shall--
            ``(A) be conducted in the presence of the accused, defense 
        counsel, and trial counsel; and
            ``(B) be made part of the record.
    ``(b) Proceedings in Presence of Accused.--Except as provided in 
subsections (c) and (e), all proceedings of a military commission under 
this chapter, including any consultation of the members with the 
military judge or counsel, shall--
            ``(1) be in the presence of the accused, defense counsel, 
        and trial counsel; and
            ``(2) be made a part of the record.
    ``(c) Deliberation or Vote of Members.--When the members of a 
military commission under this chapter deliberate or vote, only the 
members may be present.
    ``(d) Closure of Proceedings.--(1) The military judge may close to 
the public all or part of the proceedings of a military commission 
under this chapter, but only in accordance with this subsection.
    ``(2)(A) The military judge may close to the public all or a 
portion of the proceedings of a military commission under paragraph 
(1), or permit the admission of classified information outside the 
presence of the accused, based upon a presentation (including an ex 
parte or in camera presentation) by either the prosecution or the 
defense.
    ``(B) Trial counsel may not make a presentation requesting the 
admission of classified information outside the presence of the accused 
unless the head of the department or agency which has control over the 
matter (after personal consideration by that officer) certifies in 
writing to the military judge that--
            ``(i) the disclosure of the classified information to the 
        accused could reasonably be expected to prejudice the national 
        security; and
            ``(ii) that such evidence has been declassified to the 
        maximum extent possible, consistent with the requirements of 
        national security.
    ``(3) The military judge may close to the public all or a portion 
of the proceedings of a military commission under paragraph (1) upon 
making a specific finding that such closure is necessary to--
            ``(A) protect information the disclosure of which could 
        reasonably be expected to cause identifiable damage to the 
        public interest or the national security, including 
        intelligence or law enforcement sources, methods, or 
        activities; or
            ``(B) ensure the physical safety of individuals.
    ``(e) Exclusion of Accused From Certain Proceedings.--(1) The 
military judge may not exclude the accused from any portion of the 
proceeding except upon a specific finding of each of the following:
            ``(A) That the exclusion of the accused--
                    ``(i) is necessary to protect classified 
                information the disclosure of which to the accused 
                could reasonably be expected to cause identifiable 
                damage to the national security, including intelligence 
                or law enforcement sources, methods, or activities;
                    ``(ii) is necessary to ensure the physical safety 
                of individuals; or
                    ``(iii) is necessary to prevent disruption of the 
                proceedings by the accused.
            ``(B) That the exclusion of the accused--
                    ``(i) is no broader than necessary; and
                    ``(ii) will not deprive the accused of a full and 
                fair trial.
    ``(2)(A) A finding under paragraph (1) may be based upon a 
presentation, including a presentation ex parte or in camera, by either 
trial counsel or defense counsel.
    ``(B) Before trial counsel may make a presentation for purposes of 
subparagraph (A) requesting the admission of classified information 
that has not been provided to the accused, the head of the executive or 
military department or governmental agency concerned shall ensure, and 
shall certify in writing to the military judge, that such evidence has 
been declassified to the maximum extent possible, consistent with the 
requirements of national security.
    ``(3)(A) No evidence may be admitted that has not been provided to 
the accused unless the evidence is classified information and the 
military judge makes a specific finding that--
            ``(i) consideration of that evidence by the military 
        commission, without the presence of the accused, is warranted;
            ``(ii) admission of an unclassified summary or redacted 
        version of that evidence would not be an adequate substitute 
        and, in the case of testimony, alternative methods to obscure 
        the identity of the witness are not adequate; and
            ``(iii) admission of the evidence would not deprive the 
        accused of a full and fair trial.
    ``(B) If the accused is excluded from a portion of the proceedings, 
the accused shall be provided with a redacted transcript of the 
proceedings from which excluded and, to the extent practicable, an 
unclassified summary of any evidence introduced. Under no circumstances 
shall such a summary or redacted transcript compromise the interests 
warranting the exclusion of the accused under paragraph (1).
    ``(4)(A) Military defense counsel shall be present and able to 
participate in all trial proceedings and shall be given access to all 
evidence admitted under paragraph (3).
    ``(B) Civilian defense counsel shall be permitted to be present and 
to participate in proceedings from which the accused is excluded under 
this subsection, and shall be given access to classified information 
admitted under this subsection, if--
            ``(i) civilian defense counsel has obtained the necessary 
        security clearances; and
            ``(ii) the presence of civilian defense counsel or access 
        of civilian defense counsel to such information, as applicable, 
        is consistent with regulations to protect classified 
        information that the Secretary of Defense may prescribe.
    ``(C) Any defense counsel who receives classified information 
admitted under this subsection shall not be obligated to, and may not, 
disclose that information to the accused.
    ``(D) At all times the accused must have defense counsel with 
sufficient security clearance to participate in any proceeding, 
including an ex parte or in camera presentation, with respect to 
classified information.
    ``(5) If evidence has been admitted under this subsection that has 
not been provided to the accused, the judge shall instruct the members 
of the commission--
            ``(A) that such evidence was so admitted; and
            ``(B) that, in weighing the value of that evidence, the 
        commission shall consider the fact that such evidence was 
        admitted without having been provided to the accused.
    ``(f) Admission of Statements of Accused.--(1) A statement 
described in paragraph (2) that is made by the accused during an 
interrogation, even if otherwise classified, may not be admitted into 
evidence in a military commission under this chapter unless the accused 
is present for the admission of the statement into evidence or the 
statement is otherwise provided to the accused.
    ``(2) A statement of an accused described in this paragraph is a 
statement communicated knowingly and directly by the accused in 
response to questioning by United States or foreign military, 
intelligence, or criminal investigative personnel.
    ``(3) This subsection shall not be construed to prevent the 
redaction of intelligence sources or methods, which do not constitute 
statements of the accused, from any document provided to the accused or 
admitted into evidence.
``Sec. 949e. Continuances
    ``The military judge in a military commission under this chapter 
may, for reasonable cause, grant a continuance to any party for such 
time, and as often, as may appear to be just.
``Sec. 949f. Challenges
    ``(a) Challenges Authorized.--The military judge and members of a 
military commission under this chapter may be challenged by the accused 
or trial counsel for cause stated to the commission. The military judge 
shall determine the relevance and validity of challenges for cause. The 
military judge may not receive a challenge to more than one person at a 
time. Challenges by trial counsel shall ordinarily be presented and 
decided before those by the accused are offered.
    ``(b) Peremptory Challenges.--Each accused and the trial counsel 
are entitled to one peremptory challenge. The military judge may not be 
challenged except for cause.
    ``(c) Challenges Against Additional Members.--Whenever additional 
members are detailed to a military commission under this chapter, and 
after any challenges for cause against such additional members are 
presented and decided, each accused and the trial counsel are entitled 
to one peremptory challenge against members not previously subject to 
peremptory challenge.
``Sec. 949g. Oaths
    ``(a) In General.--(1) Before performing their respective duties in 
a military commission under this chapter, military judges, members, 
trial counsel, defense counsel, reporters, and interpreters shall take 
an oath to perform their duties faithfully.
    ``(2) The form of the oath required by paragraph (1), the time and 
place of the taking thereof, the manner of recording the same, and 
whether the oath shall be taken for all cases in which duties are to be 
performed or for a particular case, shall be as prescribed in 
regulations of the Secretary of Defense. Those regulations may provide 
that--
            ``(A) an oath to perform faithfully duties as a military 
        judge, trial counsel, or defense counsel may be taken at any 
        time by any judge advocate or other person certified to be 
        qualified or competent for the duty; and
            ``(B) if such an oath is taken, such oath need not again be 
        taken at the time the judge advocate or other person is 
        detailed to that duty.
    ``(b) Witnesses.--Each witness before a military commission under 
this chapter shall be examined on oath.
``Sec. 949h. Former jeopardy
    ``(a) In General.--No person may, without his consent, be tried by 
a military commission under this chapter a second time for the same 
offense.
    ``(b) Scope of Trial.--No proceeding in which the accused has been 
found guilty by military commission under this chapter upon any charge 
or specification is a trial in the sense of this section until the 
finding of guilty has become final after review of the case has been 
fully completed.
``Sec. 949i. Pleas of the accused
    ``(a) Entry of Plea of Not Guilty.--If an accused in a military 
commission under this chapter after a plea of guilty sets up matter 
inconsistent with the plea, or if it appears that the accused has 
entered the plea of guilty through lack of understanding of its meaning 
and effect, or if the accused fails or refuses to plead, a plea of not 
guilty shall be entered in the record, and the military commission 
shall proceed as though the accused had pleaded not guilty.
    ``(b) Finding of Guilt After Guilty Plea.--With respect to any 
charge or specification to which a plea of guilty has been made by the 
accused in a military commission under this chapter and accepted by the 
military judge, a finding of guilty of the charge or specification may 
be entered immediately without a vote. The finding shall constitute the 
finding of the commission unless the plea of guilty is withdrawn prior 
to announcement of the sentence, in which event the proceedings shall 
continue as though the accused had pleaded not guilty.
``Sec. 949j. Opportunity to obtain witnesses and other evidence
    ``(a) Right of Defense Counsel.--Defense counsel in a military 
commission under this chapter shall have a reasonable opportunity to 
obtain witnesses and other evidence, including evidence in the 
possession of the United States, as provided in regulations prescribed 
by the Secretary of Defense.
    ``(b) Process for Compulsion.--Process issued in a military 
commission under this chapter to compel witnesses to appear and testify 
and to compel the production of other evidence--
            ``(1) shall be similar to that which courts of the United 
        States having criminal jurisdiction may lawfully issue; and
            ``(2) shall run to any place where the United States shall 
        have jurisdiction thereof.
    ``(c) Treatment of Classified Information.--The military judge in a 
military commission under this chapter, upon a sufficient showing, may 
authorize trial counsel, in making documents available to the accused 
through discovery conducted pursuant to such rules as the Secretary of 
Defense shall prescribe, to delete specified items of classified 
information from such documents and, when such a deletion is made--
            ``(1) to substitute an unclassified summary of the 
        classified information in such documents; or
            ``(2) to substitute an unclassified statement admitting 
        relevant facts that classified information in such documents 
        would tend to prove.
    ``(d) Disclosure of Exculpatory Evidence.--(1) As soon as 
practicable, trial counsel in a military commission under this chapter 
shall disclose to the defense the existence of any evidence known to 
trial counsel that reasonably tends to exculpate the accused.
    ``(2) Exculpatory evidence that consists of classified information 
may be provided solely to defense counsel, and not the accused, after 
review in camera by the military judge.
    ``(3) Before evidence may be withheld from the accused under this 
subsection, the head of the executive or military department or 
government agency concerned shall ensure, and shall certify in writing 
to the military judge, that--
            ``(A) the disclosure of such evidence to the accused could 
        reasonably be expected to prejudice the national security; and
            ``(B) such evidence has been declassified to the maximum 
        extent possible, consistent with the requirements of national 
        security.
    ``(4) Any classified exculpatory evidence that is not disclosed to 
the accused under this subsection--
            ``(A) shall be provided to military defense counsel;
            ``(B) shall be provided to civilian defense counsel, if 
        civilian defense counsel has obtained the necessary security 
        clearances and access to such evidence is consistent with 
        regulations that the Secretary may prescribe to protect 
        classified information; and
            ``(C) shall be provided to the accused in a redacted or 
        summary form, if it is possible to do so without compromising 
        intelligence sources, methods, or activities or other national 
        security interests.
    ``(5) A defense counsel who receives classifed evidence under this 
subsection shall not be obligated to, and may not, disclose that 
evidence to the accused.
``Sec. 949k. Defense of lack of mental responsibility
    ``(a) Affirmative Defense.--It is an affirmative defense in a trial 
by military commission under this chapter that, at the time of the 
commission of the acts constituting the offense, the accused, as a 
result of a severe mental disease or defect, was unable to appreciate 
the nature and quality or the wrongfulness of the acts. Mental disease 
or defect does not otherwise constitute a defense.
    ``(b) Burden of Proof.--The accused in a military commission under 
this chapter has the burden of proving the defense of lack of mental 
responsibility by clear and convincing evidence.
    ``(c) Findings Following Assertion of Defense.--Whenever lack of 
mental responsibility of the accused with respect to an offense is 
properly at issue in a military commission under this chapter, the 
military judge shall instruct the members of the commission as to the 
defense of lack of mental responsibility under this section and shall 
charge them to find the accused--
            ``(1) guilty;
            ``(2) not guilty; or
            ``(3) subject to subsection (d), not guilty by reason of 
        lack of mental responsibility.
    ``(d) Majority Vote Required for Finding.--The accused shall be 
found not guilty by reason of lack of mental responsibility under 
subsection (c)(3) only if a majority of the members present at the time 
the vote is taken determines that the defense of lack of mental 
responsibility has been established.
``Sec. 949l. Voting and rulings
    ``(a) Vote by Secret Written Ballot.--Voting by members of a 
military commission under this chapter on the findings and on the 
sentence shall be by secret written ballot.
    ``(b) Rulings.--(1) The military judge in a military commission 
under this chapter shall rule upon all questions of law, including the 
admissibility of evidence and all interlocutory questions arising 
during the proceedings.
    ``(2) Any ruling made by the military judge upon a question of law 
or an interlocutory question (other than the factual issue of mental 
responsibility of the accused) is conclusive and constitutes the ruling 
of the military commission. However, a military judge may change his 
ruling at any time during the trial.
    ``(c) Instructions Prior to Vote.--Before a vote is taken of the 
findings of a military commission under this chapter, the military 
judge shall, in the presence of the accused and counsel, instruct the 
members as to the elements of the offense and charge them--
            ``(1) that the accused must be presumed to be innocent 
        until his guilt is established by legal and competent evidence 
        beyond a reasonable doubt;
            ``(2) that in the case being considered, if there is a 
        reasonable doubt as to the guilt of the accused, the doubt must 
        be resolved in favor of the accused and he must be acquitted;
            ``(3) that, if there is reasonable doubt as to the degree 
        of guilt, the finding must be in a lower degree as to which 
        there is no reasonable doubt; and
            ``(4) that the burden of proof to establish the guilt of 
        the accused beyond a reasonable doubt is upon the United 
        States.
``Sec. 949m. Number of votes required
    ``(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 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; and
            ``(D) all the members 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.
``Sec. 949n. Military commission to announce action
    ``A military commission under this chapter shall announce its 
findings and sentence to the parties as soon as determined.
``Sec. 949o. Record of trial
    ``(a) Record; Authentication.--Each military commission under this 
chapter shall keep a separate, verbatim, record of the proceedings in 
each case brought before it, and the record shall be authenticated by 
the signature of the military judge. If the record cannot be 
authenticated by the military judge by reason of his death, disability, 
or absence, it shall be authenticated by the signature of the trial 
counsel or by a member of the commission if the trial counsel is unable 
to authenticate it by reason of his death, disability, or absence. 
Where appropriate, and as provided in regulations prescribed by the 
Secretary of Defense, the record of a military commission under this 
chapter may contain a classified annex.
    ``(b) Complete Record Required.--A complete record of the 
proceedings and testimony shall be prepared in every military 
commission under this chapter.
    ``(c) Provision of Copy to Accused.--A copy of the record of the 
proceedings of the military commission under this chapter shall be 
given the accused as soon as it is authenticated. If the record 
contains classified information, or a classified annex, the accused 
shall be given a redacted version of the record. The appropriate 
defense counsel shall have access to the unredacted record, as provided 
in regulations prescribed by the Secretary of Defense.

                       ``SUBCHAPTER V--SENTENCES

``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.
``Sec. 949s. Cruel or unusual punishments prohibited
    ``Punishment by flogging, or by branding, marking, or tattooing on 
the body, or any other cruel or unusual punishment, may not be adjudged 
by a military commission under this chapter or inflicted under this 
chapter upon any person subject to this chapter. The use of irons, 
single or double, except for the purpose of safe custody, is prohibited 
under this chapter.
``Sec. 949t. Maximum limits
    ``The punishment which a military commission under this chapter may 
direct for an offense may not exceed such limits as the President or 
Secretary of Defense may prescribe for that offense.
``Sec. 949u. Execution of confinement
    ``(a) In General.--Under such regulations as the Secretary of 
Defense may prescribe, a sentence of confinement adjudged by a military 
commission under this chapter may be carried into execution by 
confinement--
            ``(1) in any place of confinement under the control of any 
        of the armed forces; or
            ``(2) in any penal or correctional institution under the 
        control of the United States or its allies, or which the United 
        States may be allowed to use.
    ``(b) Treatment During Confinement by Other Than the Armed 
Forces.--Persons confined under subsection (a)(2) in a penal or 
correctional institution not under the control of an armed force are 
subject to the same discipline and treatment as persons confined or 
committed by the courts of the United States or of the State, District 
of Columbia, or place in which the institution is situated.

     ``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY 
                              COMMISSIONS

``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District 
                            of Columbia Circuit and the Supreme Court.
``950h. Appellate counsel.
``950i. Execution of sentence; suspension of sentence.
``950j. Finality or proceedings, findings, and sentences.
``Sec. 950a. Error of law; lesser included offense
    ``(a) Error of Law.--A finding or sentence of a military commission 
under this chapter may not be held incorrect on the ground of an error 
of law unless the error materially prejudices the substantial rights of 
the accused.
    ``(b) Lesser Included Offense.--Any reviewing authority with the 
power to approve or affirm a finding of guilty by a military commission 
under this chapter may approve or affirm, instead, so much of the 
finding as includes a lesser included offense.
``Sec. 950b. Review by the convening authority
    ``(a) Notice to Convening Authority of Findings and Sentence.--The 
findings and sentence of a military commission under this chapter shall 
be reported in writing promptly to the convening authority after the 
announcement of the sentence.
    ``(b) Submittal of Matters by Accused to Convening Authority.--(1) 
The accused may submit to the convening authority matters for 
consideration by the convening authority with respect to the findings 
and the sentence of the military commission under this chapter.
    ``(2)(A) Except as provided in subparagraph (B), a submittal under 
paragraph (1) shall be made in writing within 20 days afer accused has 
been given an authenticated record of trial under section 949o(c) of 
this title.
    ``(B) If the accused shows that additional time is required for the 
accused to make a submittal under paragraph (1), the convening 
authority may, for good cause, extend the applicable period under 
subparagraph (A) for not more than an additional 20 days.
    ``(3) The accused may waive his right to make a submittal to the 
convening authority under paragraph (1). Such a waiver shall be made in 
writing and may not be revoked. For the purposes of subsection (c)(2), 
the time within which the accused may make a submittal under this 
subsection shall be deemed to have expired upon the submittal of a 
waiver under this paragraph to the convening authority.
    ``(c) Action by Convening Authority.--(1) The authority under this 
subsection to modify the findings and sentence of a military commission 
under this chapter is a matter of the sole discretion and prerogative 
of the convening authority.
    ``(2)(A) The convening authority shall take action on the sentence 
of a military commission under this chapter.
    ``(B) Subject to regulations prescribed by the Secretary of 
Defense, action on the sentence under this paragraph may be taken only 
after consideration of any matters submitted by the accused under 
subsection (b) or after the time for submitting such matters expires, 
whichever is earlier.
    ``(C) In taking action under this paragraph, the convening 
authority may, in his sole discretion, approve, disapprove, commute, or 
suspend the sentence in whole or in part. The convening authority may 
not increase a sentence beyond that which is found by the military 
commission.
    ``(3) The convening authority is not required to take action on the 
findings of a military commission under this chapter. If the convening 
authority takes action on the findings, the convening authority may, in 
his sole discretion, may--
            ``(A) dismiss any charge or specification by setting aside 
        a finding of guilty thereto; or
            ``(B) change a finding of guilty to a charge to a finding 
        of guilty to an offense that is a lesser included offense of 
        the offense stated in the charge.
    ``(4) The convening authority shall serve on the accused or on 
defense counsel notice of any action taken by the convening authority 
under this subsection.
    ``(d) Order of Revision or Rehearing.--(1) Subject to paragraphs 
(2) and (3), the convening authority of a military commission under 
this chapter may, in his sole discretion, order a proceeding in 
revision or a rehearing.
    ``(2)(A) Except as provided in subparagraph (B), a proceeding in 
revision may be ordered by the convening authority if--
            ``(i) there is an apparent error or omission in the record; 
        or
            ``(ii) the record shows improper or inconsistent action by 
        the military commission with respect to the findings or 
        sentence that can be rectified without material prejudice to 
        the substantial rights of the accused.
    ``(B) In no case may a proceeding in revision--
            ``(i) reconsider a finding of not guilty of a specification 
        or a ruling which amounts to a finding of not guilty;
            ``(ii) reconsider a finding of not guilty of any charge, 
        unless there has been a finding of guilty under a specification 
        laid under that charge, which sufficiently alleges a violation; 
        or
            ``(iii) increase the severity of the sentence unless the 
        sentence prescribed for the offense is mandatory.
    ``(3) A rehearing may be ordered by the convening authority if the 
convening authority disapproves the findings and sentence and states 
the reasons for disapproval of the findings. If the convening authority 
disapproves the finding and sentence and does not order a rehearing, 
the convening authority shall dismiss the charges. A rehearing as to 
the findings may not be ordered by the convening authority when there 
is a lack of sufficient evidence in the record to support the findings. 
A rehearing as to the sentence may be ordered by the convening 
authority if the convening authority disapproves the sentence.
``Sec. 950c. Appellate referral; waiver or withdrawal of appeal
    ``(a) Automatic Referral for Appellate Review.--Except as provided 
under subsection (b), in each case in which the final decision of a 
military commission (as approved by the convening authority) includes a 
finding of guilty, the convening authority shall refer the case to the 
Court of Military Commission Review. Any such referral shall be made in 
accordance with procedures prescribed under regulations of the 
Secretary.
    ``(b) Waiver of Right of Review.--(1) In each case subject to 
appellate review under section 950f of this title, except a case in 
which the sentence as approved under section 950b of this title extends 
to death, the accused may file with the convening authority a statement 
expressly waiving the right of the accused to such review.
    ``(2) A waiver under paragraph (1) shall be signed by both the 
accused and a defense counsel.
    ``(3) A waiver under paragraph (1) must be filed, if at all, within 
10 days after notice on the action is served on the accused or on 
defense counsel under section 950b(c)(4) of this title. The convening 
authority, for good cause, may extend the period for such filing by not 
more than 30 days.
    ``(c) Withdrawal of Appeal.--Except in a case in which the sentence 
as approved under section 950b of this title extends to death, the 
accused may withdraw an appeal at any time.
    ``(d) Effect of Waiver or Withdrawal.--A waiver of the right to 
appellate review or the withdrawal of an appeal under this section bars 
review under section 950f of this title.
``Sec. 950d. Appeal by the United States
    ``(a) Interlocutory Appeal.--(1) Except as provided in paragraph 
(2), in a trial by military commission under this chapter, the United 
States may take an interlocutory appeal to the Court of Military 
Commission Review of any order or ruling of the military judge that--
            ``(A) terminates proceedings of the military commission 
        with respect to a charge or specification;
            ``(B) excludes evidence that is substantial proof of a fact 
        material in the proceeding; or
            ``(C) relates to a matter under subsection (d), (e), or (f) 
        of section 949d of this title.
    ``(2) The United States may not appeal under paragraph (1) an order 
or ruling that is, or amounts to, a finding of not guilty by the 
military commission with respect to a charge or specification.
    ``(b) Notice of Appeal.--The United States shall take an appeal of 
an order or ruling under subsection (a) by filing a notice of appeal 
with the military judge within five days after the date of such order 
or ruling.
    ``(c) Appeal.--An appeal under this section shall be forwarded, by 
means specified in regulations prescribed the Secretary of Defense, 
directly to the Court of Military Commission Review. In ruling on an 
appeal under this section, the Court of Military Commission Review may 
act only with respect to matters of law.
    ``(d) Appeal From Adverse Ruling.--The United States may appeal an 
adverse ruling on an appeal under subsection (c) to the United States 
Court of Appeals for the District of Columbia Circuit by filing a 
petition for review in the Court of Appeals within 10 days after the 
date of such ruling. Review under this subsection shall be at the 
discretion of the Court of Appeals.
``Sec. 950e. Rehearings
    ``(a) Composition of Military Commission for Rehearing.--Each 
rehearing under this chapter shall take place before a military 
commission under this chapter composed of members who were not members 
of the military commission which first heard the case.
    ``(b) Scope of Rehearing.--(1) Upon a rehearing--
            ``(A) the accused may not be tried for any offense of which 
        he was found not guilty by the first military commission; and
            ``(B) no sentence in excess of or more than the original 
        sentence may be imposed unless--
                    ``(i) the sentence is based upon a finding of 
                guilty of an offense not considered upon the merits in 
                the original proceedings; or
                    ``(ii) the sentence prescribed for the offense is 
                mandatory.
    ``(2) Upon a rehearing, if the sentence approved after the first 
military commission was in accordance with a pretrial agreement and the 
accused at the rehearing changes his plea with respect to the charges 
or specifications upon which the pretrial agreement was based, or 
otherwise does not comply with pretrial agreement, the sentence as to 
those charges or specifications may include any punishment not in 
excess of that lawfully adjudged at the first military commission.
``Sec. 950f. Review by Court of Military Commission Review
    ``(a) Establishment.--The Secretary of Defense shall establish a 
Court of Military Commission Review which shall be composed of one or 
more panels, and each such panel shall be composed of not less than 
three appellate military judges. For the purpose of reviewing military 
commission decisions under this chapter, the court may sit in panels or 
as a whole in accordance with rules prescribed by the Secretary.
    ``(b) Appellate Military Judges.--The Secretary shall assign 
appellate military judges to a Court of Military Commission Review. 
Each appellate military judge shall meet the qualifications for 
military judges prescribed by section 948j(b) of this title or shall be 
a civilian with comparable qualifications. No person may be appointed 
to serve as an appellate military judge in any case in which that 
person acted as a military judge, counsel, or reviewing official.
    ``(c) Cases to Be Reviewed.--The Court of Military Commission 
Review, in accordance with procedures prescribed under regulations of 
the Secretary, shall review the record in each case that is referred to 
the Court by the convening authority under section 950c of this title 
with respect to any matter of law raised by the accused.
    ``(d) Scope of Review.--In a case reviewed by it under this 
section, the Court of Military Commission Review may act only with 
respect to matters of law.
``Sec. 950g. Review by the United States Court of Appeals for the 
              District of Columbia Circuit and the Supreme Court
    ``(a) Exclusive Appellate Jurisdiction.--(1)(A) Except as provided 
in subparagraph (B), the United States Court of Appeals for the 
District of Columbia Circuit shall have exclusive jurisdiction to 
determine the validity of a final judgment rendered by a military 
commission (as approved by the convening authority) under this chapter.
    ``(B) The Court of Appeals may not review the final judgment until 
all other appeals under this chapter have been waived or exhausted.
    ``(2) A petition for review must be filed by the accused in the 
Court of Appeals not later than 20 days after the date on which--
            ``(A) written notice of the final decision of the Court of 
        Military Commission Review is served on the accused or on 
        defense counsel; or
            ``(B) the accused submits, in the form prescribed by 
        section 950c of this title, a written notice waiving the right 
        of the accused to review by the Court of Military Commission 
        Review under section 950f of this title.
    ``(b) Standard for Review.--In a case reviewed by it under this 
section, the Court of Appeals may act only with respect to matters of 
law.
    ``(c) Scope of Review.--The jurisdiction of the Court of Appeals on 
an appeal under subsection (a) shall be limited to the consideration 
of--
            ``(1) whether the final decision was consistent with the 
        standards and procedures specified in this chapter; and
            ``(2) to the extent applicable, the Constitution.
    ``(d) Supreme Court.--The Supreme Court may review by writ of 
certiorari the final judgment of the Court of Appeals pursuant to 
section 1257 of title 28.
``Sec. 950h. Appellate counsel
    ``(a) Appointment.--The Secretary of Defense shall, by regulation, 
establish procedures for the appointment of appellate counsel for the 
United States and for the accused in military commissions under this 
chapter. Appellate counsel shall meet the qualifications for counsel 
appearing before military commissions under this chapter.
    ``(b) Representation of United States.--Appellate counsel appointed 
under subsection (a)--
            ``(1) shall represent the United States in any appeal or 
        review proceeding under this chapter before the Court of 
        Military Commission Review; and
            ``(2) may, when requested to do so by the Attorney General 
        in a case arising under this chapter, represent the United 
        States before the United States Court of Appeals for the 
        District of Columbia Circuit or the Supreme Court.
    ``(c) Representation of Accused.--The accused shall be represented 
by appellate counsel appointed under subsection (a) before the Court of 
Military Commission Review, the United States Court of Appeals for the 
District of Columbia Circuit, and the Supreme Court, and by civilian 
counsel if retained by the accused. Any such civilian counsel shall 
meet the qualifications under paragraph (3) of section 949c(b) of this 
title for civilian counsel appearing before military commissions under 
this chapter and shall be subject to the requirements of paragraph (4) 
of that section. The provisions of subparagraph (D) of section 
949d(e)(5) of this title shall apply with respect to appellate counsel.
``Sec. 950i. Execution of sentence; suspension of sentence
    ``(a) Execution of Sentence of Death Only Upon Approval by the 
President.--If the sentence of a military commission under this chapter 
extends to death, that part of the sentence providing for death may not 
be executed until approved by the President. In such a case, the 
President may commute, remit, or suspend the sentence, or any part 
thereof, as he sees fit.
    ``(b) Execution of Sentence of Death Only Upon Final Judgment of 
Legality of Proceedings.--(1) If the sentence of a military commission 
under this chapter extends to death, the sentence may not be executed 
until there is a final judgement as to the legality of the proceedings 
(and with respect to death, approval under subsection (a)).
    ``(2) A judgement as to legality of proceedings is final for 
purposes of paragraph (1) when--
            ``(A) the time for the accused to file a petition for 
        review by the Court of Appeals for the District of Columbia 
        Circuit has expired and the accused has not filed a timely 
        petition for such review and the case is not otherwise under 
        review by that Court; or
            ``(B) review is completed in accordance with the judgment 
        of the United States Court of Appeals for the District of 
        Columbia Circuit and--
                    ``(i) a petition for a writ of certiorari is not 
                timely filed;
                    ``(ii) such a petition is denied by the Supreme 
                Court; or
                    ``(iii) review is otherwise completed in accordance 
                with the judgment of the Supreme Court.
    ``(c) Suspension of Sentence.--The Secretary of the Defense, or the 
convening authority acting on the case (if other than the Secretary), 
may suspend the execution of any sentence or part thereof in the case, 
except a sentence of death.
``Sec. 950j. Finality or proceedings, findings, and sentences
    ``(a) Finality.--The appellate review of records of trial provided 
by this chapter, and the proceedings, findings, and sentences of 
military commissions as approved, reviewed, or affirmed as required by 
this chapter, are final and conclusive. Orders publishing the 
proceedings of military commissions under this chapter are binding upon 
all departments, courts, agencies, and officers of the United States, 
except as otherwise provided by the President.
    ``(b) Provisions of Chapter Sole Basis for Review of Miliary 
Commission Procedures and Actions.--Except as otherwise provided in 
this chapter and notwithstanding any other provision of law (including 
section 2241 of title 28 or any other habeas corpus provision), no 
court, justice, or judge shall have jurisdiction to hear or consider 
any claim or cause of action whatsoever, including any action pending 
on or filed after the date of the enactment of the Military Commissions 
Act of 2006, relating to the prosecution, trial, or judgment of a 
military commission under this chapter, including challenges to the 
lawfulness of procedures of military commissions under this chapter.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950p. Statement of substantive offenses.
``950q. Principals.
``950r. Accessory after the fact.
``950s. Conviction of lesser included offense.
``950t. Attempts.
``950u. Solicitation.
``950v. Crimes triable by military commissions.
``950w. Perjury and obstruction of justice.
``950x. Contempt.
``Sec. 950p. Statement of substantive offenses
    ``(a) Purpose.--The provisions of this subchapter codify offenses 
that have traditionally been triable by military commissions. This 
chapter does not establish new crimes that did not exist before its 
enactment, but rather codifies those crimes for trial by military 
commission.
    ``(b) Effect.--Because the provisions of this subchapter (including 
provisions that incorporate definitions in other provisions of law) are 
declarative of existing law, they do not preclude trial for crimes that 
occurred before the date of the enactment of this chapter.
``Sec. 950q. Principals
    ``Any person is punishable as a principal under this chapter who--
            ``(1) commits an offense punishable by this chapter, or 
        aids, abets, counsels, commands, or procures its commission;
            ``(2) causes an act to be done which if directly performed 
        by him would be punishable by this chapter; or
            ``(3) is a superior commander who, with regard to acts 
        punishable under this chapter, knew, had reason to know, or 
        should have known, that a subordinate was about to commit such 
        acts or had done so and the superior failed to take the 
        necessary and reasonable measures to prevent such acts or to 
        punish the perpetrators thereof.
``Sec. 950r. Accessory after the fact
    ``Any person subject to this chapter who, knowing that an offense 
punishable by this chapter has been committed, receives, comforts, or 
assists the offender in order to hinder or prevent his apprehension, 
trial, or punishment shall be punished as a military commission under 
this chapter may direct.
``Sec. 950s. Conviction of lesser included offense
    ``An accused may be found guilty of an offense necessarily included 
in the offense charged or of an attempt to commit either the offense 
charged or an attempt to commit either the offense charged or an 
offense necessarily included therein.
``Sec. 950t. Attempts
    ``(a) In General.--Any person subject to this chapter who attempts 
to commit any offense punishable by this chapter shall be punished as a 
military commission under this chapter may direct.
    ``(b) Scope of Offense.--An act, done with specific intent to 
commit an offense under this chapter, amounting to more than mere 
preparation and tending, even though failing, to effect its commission, 
is an attempt to commit that offense.
    ``(c) Effect of Consummation.--Any person subject to this chapter 
may be convicted of an attempt to commit an offense although it appears 
on the trial that the offense was consummated.
``Sec. 950u. Solicitation
    ``Any person subject to this chapter who solicits or advises 
another or others to commit one or more substantive offenses triable by 
military commission under this chapter shall, if the offense solicited 
or advised is attempted or committed, be punished with the punishment 
provided for the commission of the offense, but, if the offense 
solicited or advised is not committed or attempted, he shall be 
punished as a military commission under this chapter may direct.
``Sec. 950v. Crimes triable by military commissions
    ``(a) Definitions and Construction.--In this section:
            ``(1) Military objective.--The term `military objective' 
        refers to--
                    ``(A) combatants; and
                    ``(B) those objects during an armed conflict--
                            ``(i) which, by their nature, location, 
                        purpose, or use, effectively contribute to the 
                        opposing force's war-fighting or war-sustaining 
                        capability; and
                            ``(ii) the total or partial destruction, 
                        capture, or neutralization of which would 
                        constitute a definite military advantage to the 
                        attacker under the circumstances at the time of 
                        the attack.
            ``(2) Protected person.--The term `protected person' refers 
        to any person entitled to protection under one or more of the 
        Geneva Conventions, including--
                    ``(A) civilians not taking an active part in 
                hostilities;
                    ``(B) military personnel placed hors de combat by 
                sickness, wounds, or detention; and
                    ``(C) military medical or religious personnel.
            ``(3) Protected property.--The term `protected property' 
        refers to property specifically protected by the law of war 
        (such as buildings dedicated to religion, education, art, 
        science or charitable purposes, historic monuments, hospitals, 
        or places where the sick and wounded are collected), if such 
        property is not being used for military purposes or is not 
        otherwise a military objective. Such term includes objects 
        properly identified by one of the distinctive emblems of the 
        Geneva Conventions.
            ``(4) Construction.--The intent specified for an offense 
        under paragraph (1), (2), (3), (4), or (12) of subsection (b) 
        precludes the applicability of such offense with regard to--
                    ``(A) collateral damage; or
                    ``(B) death, damage, or injury incident to a lawful 
                attack.
    ``(b) Offenses.--The following offenses shall be triable by 
military commission under this chapter at any time without limitation:
            ``(1) Murder of protected persons.--An alien unlawful enemy 
        combatant who intentionally kills one or more protected persons 
        is guilty of the offense of intentionally killing a protected 
        person and shall be subject to whatever punishment a commission 
        may direct, including the penalty of death.
            ``(2) Attacking civilians.--An alien unlawful enemy 
        combatant who intentionally engages in an attack upon a 
        civilian population as such or individual civilians not taking 
        active part in hostilities is guilty of the offense of 
        attacking civilians and shall be subject to whatever punishment 
        a commission may direct, including, if death results to one or 
        more of the victims, the penalty of death.
            ``(3) Attacking civilian objects.--An alien unlawful enemy 
        combatant who intentionally engages in an attack upon property 
        that is not a military objective shall be guilty of the offense 
        of attacking civilian objects and shall be subject to whatever 
        punishment a commission may direct.
            ``(4) Attacking protected property.--An alien unlawful 
        enemy combatant who intentionally engages in an attack upon 
        protected property shall be guilty of the offense of attacking 
        protected property and shall be subject to whatever punishment 
        a commission may direct.
            ``(5) Pillaging.--An alien unlawful enemy combatant who 
        intentionally and in the absence of military necessity 
        appropriates or seizes property for private or personal use, 
        without the consent of a person with authority to permit such 
        appropriation or seizure, shall be guilty of the offense of 
        pillaging and shall be subject to whatever punishment a 
        commission may direct.
            ``(6) Denying quarter.--An alien unlawful enemy combatant 
        who, with effective command or control over subordinate groups, 
        declares, orders, or otherwise indicates to those forces that 
        there shall be no survivors or surrender accepted, with the 
        intent therefore to threaten an adversary or to conduct 
        hostilities such that there would be no survivors or surrender 
        accepted, shall be guilty of denying quarter and shall be 
        subject to whatever punishment a commission may direct.
            ``(7) Taking hostages.--An alien unlawful enemy combatant 
        who, having knowingly seized or detained one or more persons, 
        threatens to kill, injure, or continue to detain such person or 
        persons with the intent of compelling any nation, person other 
        than the hostage, or group of persons to act or refrain from 
        acting as an explicit or implicit condition for the safety or 
        release of such person or persons, shall be guilty of the 
        offense of taking hostages and shall be subject to whatever 
        punishment a commission may direct, including, if death results 
        to one or more of the victims, the penalty of death.
            ``(8) Employing poison or analogous weapons.--An alien 
        unlawful enemy combatant who intentionally, as a method of 
        warfare, employs a substance or a weapon that releases a 
        substance that causes death or serious and lasting damage to 
        health in the ordinary course of events, through its 
        asphyxiating, bacteriological, or toxic properties, shall be 
        guilty of employing poison or analogous weapons and shall be 
        subject to whatever punishment a commission may direct, 
        including, if death results to one or more of the victims, the 
        penalty of death.
            ``(9) Using protected persons as shields.--An alien 
        unlawful enemy combatant who positions, or otherwise takes 
        advantage of, a protected person with the intent to shield a 
        military objective from attack or to shield, favor, or impede 
        military operations, shall be guilty of the offense of using 
        protected persons as shields and shall be subject to whatever 
        punishment a commission may direct, including, if death results 
        to one or more of the victims, the penalty of death.
            ``(10) Using protected property as shields.--An alien 
        unlawful enemy combatant who positions, or otherwise takes 
        advantage of the location of, protected property under the law 
        of war with the intent to shield a military objective from 
        attack or to shield, favor, or impede military operations, 
        shall be guilty of the offense of using protected property as 
        shields and shall be subject to whatever punishment a 
        commission may direct.
            ``(11) Torture.--An alien unlawful enemy combatant who 
        commits an act specifically intended to inflict severe physical 
        pain or suffering or severe mental pain or suffering (other 
        than pain or suffering incidental to lawful sanctions) upon 
        another person within his custody or physical control for the 
        purpose of obtaining information or a confession, punishment, 
        intimidation, coercion, or any reason based on discrimination 
        of any kind, shall be guilty of torture and subject to whatever 
        punishment a commission may direct, including, if death results 
        to one or more of the victims, the penalty of death. In this 
        paragraph, the term `severe mental pain or suffering' has the 
        meaning given that term in section 2340(2) of title 18.
            ``(12) Cruel or inhuman treatment.--An alien unlawful enemy 
        combatant who commits an act intended to inflict severe 
        physical pain or suffering or severe mental pain or suffering 
        (other than pain or suffering incidental to lawful sanctions), 
        including severe physical abuse, upon another person within his 
        custody or physical control shall be guilty of cruel or inhuman 
        treatment and subject to whatever punishment a commission may 
        direct, including, if death results to one or more of the 
        victims, the penalty of death. In this paragraph, the term 
        `severe mental pain or suffering' has the meaning given that 
        term in section 2340(2) of title 18.
            ``(13) Intentionally causing serious bodily injury.--An 
        alien unlawful enemy combatant who intentionally causes serious 
        bodily injury to one or more persons, including lawful 
        combatants, in violation of the law of war shall be guilty of 
        the offense of causing serious bodily injury and shall be 
        subject to whatever punishment a commission may direct, 
        including, if death results to one or more of the victims, the 
        penalty of death. In this paragraph, the term `serious bodily 
        injury' has the meaning given that term in section 113(b)(2) of 
        title 18.
            ``(14) Mutilating or maiming.--An alien unlawful enemy 
        combatant who intentionally injures one or more protected 
        persons, by disfiguring the person or persons by any mutilation 
        thereof or by permanently disabling any member, limb, or organ 
        of his body, without any legitimate medical or dental purpose, 
        shall be guilty of the offense of mutilation or maiming and 
        shall be subject to whatever punishment a commission may 
        direct, including, if death results to one or more of the 
        victims, the penalty of death.
            ``(15) Murder in violation of the law of war.--An alien 
        unlawful enemy combatant who intentionally kills one or more 
        persons, including lawful combatants, in violation of the law 
        of war shall be guilty of the offense of murder in violation of 
        the law of war and shall be subject to whatever punishment a 
        commission may direct, including the penalty of death.
            ``(16) Destruction of property in violation of the law of 
        war.--An alien unlawful enemy combatant who intentionally 
        destroys property belonging to another person in violation of 
        the law of war shall be guilty of the offense of destruction of 
        property in violation of the law of war and shall be subject to 
        whatever punishment a commission may direct.
            ``(17) Using treachery or perfidy.--An alien unlawful enemy 
        combatant who, after inviting the confidence or belief of one 
        or more persons that they were entitled to, or obliged to 
        accord, protection under the law of war, intentionally makes 
        use of that confidence or belief in killing, injuring, or 
        capturing such person or persons, shall be guilty of using 
        treachery or perfidy and shall be subject to whatever 
        punishment a commission may direct.
            ``(18) Improperly using a flag of truce.--An alien unlawful 
        enemy combatant who uses a flag of truce to feign an intention 
        to negotiate, surrender, or otherwise to suspend hostilities 
        when there is no such intention, shall be guilty of improperly 
        using a flag of truce and shall be subject to whatever 
        punishment a commission may direct.
            ``(19) Improperly using a distinctive emblem.--An alien 
        unlawful enemy combatant who intentionally uses a distinctive 
        emblem recognized by the law of war for combatant purposes in a 
        manner prohibited by the law of war shall be guilty of 
        improperly using a distinctive emblem and shall be subject to 
        whatever punishment a commission may direct.
            ``(20) Intentionally mistreating a dead body.--An alien 
        unlawful enemy combatant who intentionally mistreats the body 
        of a dead person, without justification by legitimate military 
        necessary, shall be guilty of the offense of mistreating a dead 
        body and shall be subject to whatever punishment a commission 
        may direct.
            ``(21) Rape.--An alien unlawful enemy combatant who 
        forcibly or with coercion or threat of force wrongfully invades 
        the body of a person by penetrating, however slightly, the anal 
        or genital opening of the victim with any part of the body of 
        the accused or with any foreign object shall be guilty of the 
        offense of rape and shall be subject to whatever punishment a 
        commission may direct.
            ``(22) Hijacking or hazarding a vessel or aircraft.--An 
        alien unlawful enemy combatant subject to this title who 
        intentionally seizes, exercises unauthorized control over, or 
        endangers the safe navigation of, a vessel or aircraft that was 
        not a legitimate military target is guilty of the offense of 
        hijacking or hazarding a vessel or aircraft and shall be 
        subject to whatever punishment a commission may direct, 
        including, if death results to one or more of the victims, the 
        penalty of death.
            ``(23) Terrorism.--An alien unlawful enemy combatant 
        subject to this title who intentionally kills or inflicts great 
        bodily harm on one or more persons, or intentionally engages in 
        an act that evinces a wanton disregard for human life, in a 
        manner calculated to influence or affect the conduct of 
        government or civilian population by intimidation or coercion, 
        or to retaliate against government conduct, shall be guilty of 
        the offense of terrorism and shall be subject to whatever 
        punishment a commission may direct, including, if death results 
        to one or more of the victims, the penalty of death.
            ``(24) Providing material support for terrorism.--An alien 
        unlawful enemy combatant who provides material support or 
        resources, knowing or intending that they are to be used in 
        preparation for, or in carrying out, an act of terrorism (as 
        defined in paragraph (23)), or who intentionally provides 
        material support or resources to an international terrorist 
        organization engaged in hostilities against the United States, 
        knowing that such organization has engaged or engages in 
        terrorism (as defined in paragraph (23)), shall be guilty of 
        the offense of providing material support for terrorism and 
        shall be subject to whatever punishment a commission may 
        direct. In this paragraph, the term `material support or 
        resources' has the meaning given that term in section 2339A(b) 
        of title 18.
            ``(25) Wrongfully aiding the enemy.--An alien unlawful 
        enemy combatant who, in breach of an allegiance or duty to the 
        United States, knowingly and intentionally aids an enemy of the 
        United States or one its co-belligerents shall be guilty of the 
        offense of wrongfully aiding the enemy and shall be subject to 
        whatever punishment a commission may direct.
            ``(26) Spying.--An alien unlawful enemy combatant who, with 
        intent or reason to believe that it is to be used to the injury 
        of the United States or to the advantage of a foreign power, 
        collects or attempts to collect certain information by 
        clandestine means or while acting under false pretenses, for 
        the purpose of conveying such information to an enemy of the 
        United States or one of its co-belligerents, shall be guilty of 
        the offense of spying and shall be subject to whatever 
        punishment a commission may direct, including the penalty of 
        death.
            ``(27) Conspiracy.--An alien unlawful enemy combatant who 
        conspires to commit one or more substantive offenses triable 
        under this section, and who knowingly does any overt act to 
        effect the object of the conspiracy, shall be guilty of 
        conspiracy and shall be subject to whatever punishment a 
        commission may direct, including, if death results to one or 
        more of the victims, the penalty of death.
``Sec. 950w. Perjury and obstruction of justice
    ``A military commission under this chapter may try offenses and 
impose punishments for perjury, false testimony, or obstruction of 
justice related to military commissions under this chapter.
``Sec. 950x. Contempt
    ``A military commission under this chapter may punish for contempt 
any person who uses any menacing word, sign, or gesture in its 
presence, or who disturbs its proceedings by any riot or disorder.''.
            (2) Tables of chapters amendments.--The tables of chapters 
        at the beginning of subtitle A, and at the beginning of part II 
        of subtitle A, of title 10, United States Code, are each 
        amended by inserting after the item relating to chapter 47 the 
        following new item:

``47A. Military Commissions.................................   948a.''.
    (b) Conforming Amendment to UCMJ.--Section 836(a) of title 10, 
United States Code (article 36(a) of the Uniform Code of Military 
Justice)), is amended by inserting ``, except as provided in chapter 
47A of this title,'' after ``but which may not''.
    (c) Submittal of Procedures to Congress.--Not later than 90 days 
after the date of the enactment of this Act, the Secretary of Defense 
shall submit to the Committees on Armed Services of the Senate and the 
House of Representatives a report setting forth the procedures for 
military commissions prescribed under chapter 47A of title 10, United 
States Code (as added by subsection (a)).

SEC. 4. CLARIFICATION OF CONDUCT CONSTITUTING WAR CRIME OFFENSE UNDER 
              FEDERAL CRIMINAL CODE.

    (a) Applicability Only to Serious Violations of Common Article 3.--
Section 2441 of title 18, United States Code is amended--
            (1) by striking paragraph (3) of subsection (c) and 
        inserting the following:
            ``(3) which constitutes a serious violation of common 
        Article 3 of the 1949 Geneva Conventions, when committed in the 
        context of and in association with an armed conflict not of an 
        international character; or''; and
            (2) by adding at the end the following new subsection:
    ``(d) Covered Common Article 3 Violations.--
            ``(1) Serious violations.--In subsection (c)(3), the term 
        `serious violation of common Article 3 of the 1949 Geneva 
        Conventions' means any of the following:
                    ``(A) Torture.--The act of a person who commits, or 
                conspires or attempts to commit, an act specifically 
                intended to inflict severe physical pain or suffering 
                or severe mental pain or suffering (as such term is 
                defined in section 2340(2) of this title), other than 
                pain or suffering incidental to lawful sanctions, upon 
                another person within his custody or physical control 
                for the purpose of obtaining information or a 
                confession, punishment, intimidation, coercion, or any 
                reason based on discrimination of any kind.
                    ``(B) Cruel or inhuman treatment.--The act of a 
                person who commits, or conspires or attempts to commit, 
                an act intended to inflict severe physical pain or 
                suffering or severe mental pain or suffering (as such 
                term is defined in section 2340(2) of this title), 
                other than pain or suffering incidental to lawful 
                sanctions, and including severe physical abuse, upon 
                another person within his custody or physical control.
                    ``(C) Performing biological experiments.--The act 
                of a person who subjects, or conspires or attempts to 
                subject, one or more persons within his custody or 
                physical control to biological experiments and in so 
                doing endangers the body or health of such person or 
                persons.
                    ``(D) Murder.--The act of a person who 
                intentionally kills, or conspires or attempts to kill, 
                or kills whether intentionally or unintentionally in 
                the course of committing any other offense under this 
                section, one or more persons taking no active part in 
                the hostilities, including those placed hors de combat 
                by sickness, wounds, detention, or any other cause.
                    ``(E) Mutilation or maiming.--The act of a person 
                who intentionally injures, or conspires or attempts to 
                injure, or injures whether intentionally or 
                unintentionally in the course of committing any other 
                offense under this section, one or more persons taking 
                no active part in the hostilities, including those 
                placed hors de combat by sickness, wounds, detention, 
                or any other cause, by disfiguring the person or 
                persons by any mutilation thereof or by permanently 
                disabling any member, limb, or organ of his body, 
                without any legitimate medical or dental purpose.
                    ``(F) Intentionally causing great suffering or 
                serious injury.--The act of a person who intentionally 
                causes, or conspires or attempts to cause, serious 
                bodily injury (as such term is defined in section 
                113(b)(2) of this title) to one or more persons taking 
                no active part in the hostilities, including those 
                placed hors de combat by sickness, wounds, detention, 
                or any other cause.
                    ``(G) Rape.--The act of a person who forcibly or 
                with coercion or threat of force wrongfully invades, or 
                conspires or attempts to invade, the body of a person 
                by penetrating, however slightly, the anal or genital 
                opening of the victim with any part of the body of the 
                accused or with any foreign object.
                    ``(H) Sexual assault or abuse.--The act of a person 
                who forcibly or with coercion or threat of force 
                engages, or conspires or attempts to engage, in sexual 
                contact (as such term is defined in section 2246(3) of 
                this title) with one or more persons, or causes, or 
                conspires or attempts to cause, one or more persons to 
                engage in sexual contact (as so defined).
                    ``(I) Taking hostages.--The act of a person who--
                            ``(i) having knowingly seized or detained 
                        one or more persons, threatens to kill, injure, 
                        or continue to detain such person or persons 
                        with the intent of compelling any nation, 
                        person other than the hostage, or group of 
                        persons to act or refrain from acting as an 
                        explicit or implicit condition for the safety 
                        or release of such person or persons; or
                            ``(ii) attempts to engage or conspires to 
                        engage in conduct under clause (i).
            ``(2) Inapplicability of specified provisions with respect 
        to certain conduct.--The intent specified for the conduct 
        stated in subparagraphs (D), (E), and (F) of paragraph (1) 
        precludes the applicability of those subparagraphs with regard 
        to--
                    ``(A) collateral damage; or
                    ``(B) death, damage, or injury incident to a lawful 
                attack.''.
    (b) Retroactive Applicability.--The amendments made by this section 
shall take effect as of November 26, 1997, as if enacted immediately 
after the amendments made by section 583 of Public Law 105-118 (as 
amended by section 4002 of Public Law 107-273).

SEC. 5. JUDICIAL REVIEW.

    Section 2241 of title 28, United States Code, is amended by 
striking both the subsection (e) added by section 1005(e)(1) of Public 
Law 109-148 (119 Stat. 2742) and the subsection (e) added by section 
1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and inserting the 
following new subsection (e):
    ``(e)(1) Except as provided for in this subsection, and 
notwithstanding any other law, no court, justice, or judge shall have 
jurisdiction to hear or consider any claim or cause of action, 
including an application for a writ of habeas corpus, pending on or 
filed after the date of the enactment of the Military Commissions Act 
of 2006, against the United States or its agents, brought by or on 
behalf of any alien detained by the United States as an unlawful enemy 
combatant, relating to any aspect of the alien's detention, transfer, 
treatment, or conditions of confinement.
    ``(2) The United States Court of Appeals for the District of 
Columbia Circuit shall have exclusive jurisdiction to determine the 
validity of any final decision of a Combatant Status Review Tribunal. 
The scope of such review is defined in section 1005(e)(2) of the 
Detainee Treatment Act of 2005. If the Court grants a detainee's 
petition for review, the Secretary of Defense may conduct a new 
Combatant Status Review Tribunal.
    ``(3) Review shall be had only of final judgments of military 
commissions as provided for pursuant to section 950g of title 10, 
United States Code.
    ``(4) The court may consider classified information submitted in 
camera and ex parte in making any determination under this section.''.

SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.

    (a) In General.--Satisfaction of the prohibitions against cruel, 
inhuman, and degrading treatment set forth in section 1003 of the 
Detainee Treatment Act of 2005 (42 U.S.C. 2000dd) shall fully satisfy 
United States obligations with respect to the standards for detention 
and treatment established by section 1 of Common Article 3 of the 
Geneva Conventions, with the exception of the obligations imposed by 
subsections 1(b) and 1(d) of such Article .
    (b) Rights Not Judicially Enforceable.--
            (1) In general.--No person in any habeas action or any 
        other action may invoke the Geneva Conventions or any protocols 
        thereto as a source of rights, whether directly or indirectly, 
        for any purpose in any court of the United States or its States 
        or territories.
            (2) Construction.--Paragraph (1) may not be construed to 
        affect the obligations of the United States under the Geneva 
        Conventions.
    (c) Geneva Conventions Defined.--In this section, the term ``Geneva 
Conventions'' means the international conventions signed at Geneva on 
August 12, 1949, including common Article 3.

SEC. 7. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO 
              PROTECTION OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL.

    (a) Counsel and Investigations.--Section 1004(b) of the Detainee 
Treatment Act of 2005 (42 U.S.C. 2000dd-1(b)) is amended--
            (1) by striking ``may provide'' and inserting ``shall 
        provide'';
            (2) by inserting ``or investigation'' after ``criminal 
        prosecution''; and
            (3) by inserting ``whether before United States courts or 
        agencies, foreign courts or agencies, or international courts 
        or agencies,'' after ``described in that subsection''.
    (b) Protection of Personnel.--Section 1004 of the Detainee 
Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to 
any criminal prosecution that--
            (1) relates to the detention and interrogation of aliens 
        described in such section;
            (2) is grounded in section 2441(c)(3) of title 18, United 
        States Code; and
            (3) relates to actions occurring between September 11, 
        2001, and December 30, 2005.

SEC. 8. RETROACTIVE APPLICABILITY.

    This Act shall take effect on the date of the enactment of this Act 
and shall apply retroactively, including--
            (1) to any aspect of the detention, treatment, or trial of 
        any person detained at any time since September 11, 2001; and
            (2) to any claim or cause of action pending on or after the 
        date of the enactment of this Act.

SEC. 9. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

    (a) Applicability to Lawful Enemy Combatants.--Section 802(a) of 
title 10, United States Code (article 2(a) of the Uniform Code of 
Military Justice), is amended by adding at the end the following new 
paragraph:
            ``(13) Lawful enemy combatants who violate the law of 
        war.''.
    (b) Exclusion of Chapter 47A Commissions.--Section 821 of such 
title (article 21 of such Code) is amended by adding at the end the 
following new sentence: ``This section does not apply to military 
commissions established under chapter 47A of this title.''.
    (c) Inapplicability of Requirement for Uniform Regulations.--
Section 36(b) of such title (article (36) of such Code) is amended by 
inserting before the period at the end ``, except insofar as applicable 
to military commissions established under chapter 47A of this title''.
                                                 Union Calendar No. 409

109th CONGRESS

  2d Session

                               H. R. 6054

                  [Report No. 109-664, Parts I and II]

_______________________________________________________________________

                                 A BILL

 To amend title 10, United States Code, to authorize trial by military 
  commission for violations of the law of war, and for other purposes.

_______________________________________________________________________

                           September 25, 2006

Reported with amendments, committed to the Committee of the Whole House 
          on the State of the Union, and ordered to be printed