109 HR 6054 RH: Military Commissions Act of 2006
U.S. House of Representatives
2006-09-25
text/xml
EN
Pursuant to Title 17 Section 105 of the United States Code, this file is not subject to copyright protection and is in the public domain.
1.Short title; table of contents
(a)This Act may be cited as the Military Commissions Act of 2006
.
(b)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.
2.Construction of Presidential authority to establish military commissionsThe 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.
3.
(a)
(1)Subtitle A of title 10, United States Code, is amended by inserting after chapter 47 the following new chapter:
47A
Subchapter
I.General Provisions948a
II.Composition of Military Commissions948h
III.Pre-Trial Procedure948q
IV.Trial Procedure949a
V.Sentences949s
VI.Post-Trial Procedure and Review of Military Commissions950a
VII.Punitive Matters950p
I
Sec.
948a. Definitions.
948b. Military commissions generally.
948c. Persons subject to military commissions.
948d. Jurisdiction of military commissions.
948e. Annual report to congressional committees.
948a.In this chapter:
(1)
(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)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.
(2) (3)The term Geneva Conventions means the international conventions signed at Geneva on August 12, 1949, including Common Article 3.
(3) (4)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)).
(4) (5)The term alien means an individual who is not a citizen of the United States.
948b.Military commissions generally
(a)Authority for military commissions under this chapterThe President is authorized to establish military commissions for violations of offenses triable by military commission as provided in this chapter.
(b)Construction of provisionsThe 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 3A 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.
948c.Persons subject to military commissionsAny alien unlawful enemy combatant is subject to trial by military commission under this chapter.
948d.Jurisdiction of military commissions
(a)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)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.
(b) (c)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.
948e.Annual report to congressional committees
(a)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)Each report under this section shall be submitted in unclassified form, but may include a classified annex.
IIComposition 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.
948h.Who may convene military commissionsMilitary 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.
948iWho may serve on military commissions
(a)Any commissioned officer of the armed forces on active duty is eligible to serve on a military commission under this chapter.
(b)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)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.
948j.
(a)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)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 individualsNo 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 voteA 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)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 authorityThe 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.
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)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)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 individualsNo 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.
948l.Detail or employment of reporters and interpreters
(a)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)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)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.
948m.Number of members; excuse of members; absent and additional members
(a)
(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)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 membersWhenever 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.
III
Sec.
948q. Charges and specifications.
948r. Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements.
948s. Service of charges.
948q.Charges and specifications
(a)Charges and specificationsCharges 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)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.
948r.Compulsory self-incrimination prohibited; treatment of statements obtained by torture and other statements
(a)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 tortureA 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)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)In this section, the term torture has the meaning given that term in section 2340 of title 18.
948s.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.
IV
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.
949a.
(a)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)
(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 proceduresNot 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.
949b.Unlawfully influencing action of military commission
(a)
(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 fitnessIn 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.
949c.Duties of trial counsel and defense counsel
(a)The trial counsel of a military commission under this chapter shall prosecute in the name of the United States.
(b)
(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.
949d.
(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 accusedExcept 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 membersWhen the members of a military commission under this chapter deliberate or vote, only the members may be present.
(d)
(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.
949e.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.
949f.
(a)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)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 membersWhenever 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.
949g.
(a)
(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)Each witness before a military commission under this chapter shall be examined on oath.
949h.
(a)No person may, without his consent, be tried by a military commission under this chapter a second time for the same offense.
(b)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.
949i.
(a)Entry of plea of not guiltyIf 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 pleaWith 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.
949j.Opportunity to obtain witnesses and other evidence
(a)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 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 informationThe 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.
949k.Defense of lack of mental responsibility
(a)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)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 defenseWhenever 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 findingThe 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.
949l.
(a)Vote by secret written ballotVoting by members of a military commission under this chapter on the findings and on the sentence shall be by secret written ballot.
(b)
(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 voteBefore 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.
949m.
(a)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)
(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.
949n.Military commission to announce actionA military commission under this chapter shall announce its findings and sentence to the parties as soon as determined.
949o.
(a)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)A complete record of the proceedings and testimony shall be prepared in every military commission under this chapter.
(c)Provision of copy to accusedA 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.
V
Sec.
949s. Cruel or unusual punishments prohibited.
949t. Maximum limits.
949u. Execution of confinement.
949s.Cruel or unusual punishments prohibitedPunishment 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.
949t.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.
949u.
(a)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 forcesPersons 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.
VIPost-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.
950a.Error of law; lesser included offense
(a)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)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.
950b.Review by the convening authority
(a)Notice to convening authority of findings and sentenceThe 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.
950c.Appellate referral; waiver or withdrawal of appeal
(a)Automatic referral for appellate reviewExcept 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)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 withdrawalA waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under section 950f of this title.
950d. Appeal by the United States
(a)
(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)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)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 rulingThe 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.
950e.
(a)Composition of military commission for rehearingEach 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)
(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.
950f.Review by Court of Military Commission Review
(a)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 judgesThe 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)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)In a case reviewed by it under this section, the Court of Military Commission Review may act only with respect to matters of law.
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)In a case reviewed by it under this section, the Court of Appeals may act only with respect to matters of law.
(c)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)The Supreme Court may review by writ of certiorari the final judgment of the Court of Appeals pursuant to section 1257 of title 28.
950h.
(a)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 StatesAppellate 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 accusedThe 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.
950i.Execution of sentence; suspension of sentence
(a)Execution of sentence of death only upon approval by the PresidentIf 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)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.
950j.Finality or proceedings, findings, and sentences
(a)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 actionsExcept 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.
VII
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.
950p.Statement of substantive offenses
(a)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)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.
950q.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.
950r.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.
950s.Conviction of lesser included offenseAn 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.
950t.
(a)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)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)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.
950u.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.
950v.Crimes triable by military commissions
(a)Definitions and constructionIn this section:
(1)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)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)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)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)The following offenses shall be triable by military commission under this chapter at any time without limitation:
(1)Murder of protected personsAn 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)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 objectsAn 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 propertyAn 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)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)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)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 weaponsAn 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 shieldsAn 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 shieldsAn 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)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 treatmentAn 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 injuryAn 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)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 warAn 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 warAn 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 perfidyAn 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 truceAn 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 emblemAn 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 bodyAn 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)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 aircraftAn 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)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 terrorismAn 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 enemyAn 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)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)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.
950w.Perjury and obstruction of justiceA 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.
950x.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 amendmentsThe 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 Commissions948a. .
(b)Conforming amendment to UCMJSection 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 congressNot 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)).
4.Clarification of conduct constituting war crime offense under Federal Criminal Code
(a)Applicability only to serious violations of common article 3Section 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)In subsection (c)(3), the term serious violation of common Article 3 of the 1949 Geneva Conventions means any of the following:
(A)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 treatmentThe 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 experimentsThe 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)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)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 injuryThe 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)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)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)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 conductThe 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 applicabilityThe 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).
5.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. .
6.Satisfaction of treaty obligations
(a)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)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)Paragraph (1) may not be construed to affect the obligations of the United States under the Geneva Conventions.
(c)Geneva Conventions definedIn this section, the term Geneva Conventions means the international conventions signed at Geneva on August 12, 1949, including common Article 3.
7.Revisions to Detainee Treatment Act of 2005 relating to protection of certain United States Government personnel
(a)Counsel and InvestigationsSection 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)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.
8.Retroactive applicabilityThis 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.
9.Amendments to Uniform Code of Military Justice
(a)Applicability to lawful enemy combatantsSection 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 commissionsSection 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 regulationsSection 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
.
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