[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3614 Introduced in Senate (IS)]








109th CONGRESS
  2d Session
                                S. 3614

   To provide comprehensive procedures for the adjudication of cases 
                   involving unprivileged combatants.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                             June 29, 2006

  Mr. Specter introduced the following bill; which was read twice and 
              referred to the Committee on Armed Services

_______________________________________________________________________

                                 A BILL


 
   To provide comprehensive procedures for the adjudication of cases 
                   involving unprivileged combatants.

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

SECTION 1. SHORT TITLE; AUTHORITY; FINDINGS.

    (a) Short Title.--This Act may be cited as the ``Unprivileged 
Combatant Act of 2006''.
    (b) Authority.--The requirements, conditions, and restrictions 
established by this Act are made under the authority of Congress under 
clauses 1, 10, 11, 12, 13, 14, and 18 of article I, section 8 of the 
Constitution of the United States.
    (c) Findings.--Congress finds the following:
            (1) Article I, section 8, of the Constitution provides that 
        the Congress has the power to ``constitute Tribunals inferior 
        to the Supreme Court; ... define and punish ... Offenses 
        against the Law of Nations; ... make Rules concerning Captures 
        on Land and Water; ... make all Laws which shall be necessary 
        and proper for carrying into Execution the foregoing Powers and 
        all other Powers vested by this Constitution in the Government 
        of the United States, or in any Department or Officer 
        thereof''.
            (2) The Supreme Court has repeatedly recognized military 
        tribunals, as stated in Madsen v. Kinsella 343 U.S. 341, 1952, 
        ``[s]ince our nation's earliest days, such tribunals have been 
        constitutionally recognized agencies for meeting many urgent 
        governmental responsibilities related to war....They have taken 
        many forms and borne many names. Neither their procedure nor 
        their jurisdiction has been prescribed by statute. It has been 
        adapted in each instance to the need that called it forth.'' 
        Madsen, citing In re Yamashita, 327 U.S. 1 (1946).
            (3) The President has inherent authority to convene 
        military tribunals arising from his role as Commander and Chief 
        of the Armed Forces under article II of the Constitution and 
        from title 10 of the United States Code. Due to the 
        extraordinary circumstances of the ongoing war on terrorism, it 
        is appropriate for Congress to provide additional and explicit 
        authorization of and procedures for military tribunals to 
        adjudicate and punish offenses relating to the war on 
        terrorism.
            (4) This Act is in direct response to the United State 
        Supreme Court's ruling in Rasul v. Bush. With the passage of 
        this Act, the 109th Congress will have addressed the concerns 
        of the Supreme Court's Rasul majority, and therefore alien 
        enemy combatants detained or prosecuted under this Act may not 
        challenge their detentions in the Federal courts of the United 
        States via the habeas or any other statute.

SEC. 2. DEFINITIONS.

    As used in this Act, the following definitions apply:
            (1) Classification tribunal.--The term ``classification 
        tribunal'' means any tribunal conducted under section 9 or any 
        related proceeding.
            (2) Classification tribunal board.--The term 
        ``classification tribunal board'' means a board established 
        pursuant to section 9(d).
            (3) Classified information.--The term ``classified 
        information'' has the meaning given that term in section 1(a) 
        of the Classified Information Procedures Act (18 U.S.C. App.).
            (4) Commission.--The term ``commission'' means a military 
        commission established pursuant to section 3.
            (5) Criminal prosecution.--The term ``criminal 
        prosecution'' means a prosecution for a violation of any 
        criminal law, including subchapter X of chapter 47 of title 10, 
        United States Code (the Uniform Code of Military Justice) or 
        pursuant to the Department of Defenses Military Commission 
        Instruction number two.
            (6) Detainee.--The term ``detainee'' means a person who is 
        in the custody of the Department of Defense at Guantanamo Bay, 
        Cuba, and who has not been charged with a criminal offense 
        during that period.
            (7) International terrorism.--The term ``international 
        terrorism'' has the meaning given that term in section 101 of 
        the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
        1801).
            (8) Judge.--The term ``judge'' means a United States 
        military judge designated by the Secretary of Defense to hear 
        cases under this Act.
            (9) Protected information.--The term ``protected 
        information'' means information--
                    (A) that is classified information;
                    (B) protected by law or rule from unauthorized 
                disclosure;
                    (C) the disclosure of which may endanger the 
                physical safety of participants in Commission 
                proceedings, including prospective witnesses;
                    (D) concerning intelligence and law enforcement 
                sources, methods, or activities; or
                    (E) the disclosure of which would otherwise 
                jeopardize national security interests.
            (10) United states person.--The term ``United States 
        person'' has the meaning given that term in section 101 of the 
        Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801).
            (11) Unprivileged combatant.--The term ``unprivileged 
        combatant'' means an individual--
                    (A) who has been designated as an enemy combatant 
                by a Combatant Status Review Tribunal prior to the 
                enactment of this Act; or
                    (B) who a Field Tribunal conducted by the United 
                States military as provided in this Act determines--
                            (i) is not entitled to the protections set 
                        out in the Convention Relative to the Treatment 
                        of Prisoners of War, done at Geneva, August 12, 
                        1948 (6 UST 3516) (referred to in this Act as 
                        the ``Geneva Convention''); and
                            (ii) has--
                                    (I) knowingly assisted, conspired 
                                with, or solicited for a group or an 
                                individual hostile to the United 
                                States;
                                    (II) knowingly attempted to assist 
                                others in taking up arms against the 
                                United States;
                                    (III) conspired with or solicited 
                                others to take up arms against the 
                                United States; or
                                    (IV) has taken up arms against, or 
                                intentionally assisted combat 
                                operations against, the United States.
            (12) Appropriate committees of congress.--The term 
        ``appropriate committees of Congress'' means the Committee on 
        the Judiciary and the Committee on Armed Services of the Senate 
        and the Committee on the Judiciary and the Committee on Armed 
        Services of the House of Representatives.

SEC. 3. AUTHORIZING MILITARY COMMISSIONS.

    The President is authorized to establish military commissions for 
the trial of individuals for offenses as provided in this Act.

SEC. 4. JURISDICTION.

    (a) Unprivileged Combatants.--This Act establishes exclusive 
jurisdiction to hear any matter involving an unprivileged combatant who 
has been detained by the Department of Defense for not less than 180 
consecutive days at Guantanamo Bay, Cuba.
    (b) Offenses.--
            (1) Criminal prosecutions.--A commission shall have 
        jurisdiction to hear any criminal prosecution involving 
        international terrorism, including any offense under chapter 
        113B of title 18, United States Code.
            (2) Offenses against the laws of war.--A commission shall 
        have exclusive jurisdiction over violations of the laws of war 
        committed by unprivileged combatants.
            (3) Other offenses.--A commission shall have jurisdiction 
        over other offenses traditionally triable by military 
        commissions or pursuant to the Department of Defense's Military 
        Commission Instruction Number Two.

SEC. 5. APPELLATE JURISDICTION.

    (a) Final Decisions.--The United States Court of Military Appeals 
shall have exclusive jurisdiction of appeals from all final decisions 
of a classification tribunal board or commission under this Act.
    (b) Review by Supreme Court.--
            (1) Certiorari.--The decisions of the United States Court 
        of Military Appeals are subject to review by the Supreme Court 
        by writ of certiorari.
            (2) Exemption from certain petition requirements.--A person 
        who files a petition for a writ of certiorari under paragraph 
        (1) shall not be required to submit--
                    (A) prepayment of any fees and costs or security 
                therefor; or
                    (B) the affidavit required by section 1915(a) of 
                title 28, United States Code.
    (c) Conforming Amendments.--
            (1) In general.--Section 1005 of the Detainee Treatment Act 
        of 2005 (10 U.S.C. 801 note) is amended--
                    (A) in subsection (e), by striking paragraphs (2) 
                through (4); and
                    (B) by striking subsection (h) and inserting the 
                following:
    ``(h) Effective Date.--This section shall take effect on the date 
of enactment of this Act.''.
            (2) Habeas.--Section 2241(e) of title 28, United States 
        Code, is amended--
                    (A) in the matter preceding paragraph (1), by 
                striking ``section 1005 of the Detainee Treatment Act 
                of 2005'' and inserting ``the Unprivileged Combatant 
                Act of 2006'';
                    (B) by striking paragraph (2)(B) and inserting the 
                following:
                    ``(B) has been determined by a classification 
                tribunal to meet the requirements of paragraph (1) or 
                (2) of section 9(a) of the Unprivileged Combatant Act 
                of 2006.''.

SEC. 6. COMMISSION.

    (a) Commission Personnel.--
            (1) Members.--
                    (A) Appointment.--The Secretary of Defense shall 
                designate no less than 12 United States military judges 
                to serve as members of a commission and to assume other 
                duties assigned in this Act.
                    (B) Number of members.--Each commission shall 
                consist of at least 3 military officers, at least one 
                of whom shall be a military judge.
                    (C) Alternate members.--For each such commission, 
                there shall also be 1 or 2 alternate members. The 
                alternate member or members shall attend all sessions 
                of the commission. In case of incapacity, resignation, 
                or removal of any member, an alternate member shall 
                take the place of that member.
                    (D) Qualifications.--Each member and alternate 
                member of the commission shall be a military officer.
                    (E) Presiding officer.--
                            (i) In general.--From among the members of 
                        the commission, the Secretary of Defense shall 
                        designate a presiding officer who is a military 
                        judge to preside over the proceedings of that 
                        commission.
                            (ii) Duties.--The duties of the presiding 
                        officer shall be as follows:
                                    (I) The presiding officer shall 
                                admit or exclude evidence at trial in 
                                accordance with the rules of this Act. 
                                The presiding officer shall have 
                                authority to close proceedings or 
                                portions of proceedings in accordance 
                                with this Act or for any other reason 
                                necessary for the conduct of a full and 
                                fair trial.
                                    (II) The presiding officer shall 
                                ensure that the discipline, dignity, 
                                and decorum of the proceedings are 
                                maintained, shall exercise control over 
                                the proceedings to ensure proper 
                                implementation of the President's 
                                Military Order and this Act, and shall 
                                have authority to act upon any contempt 
                                or breach of commission rules and 
                                procedures. Any attorney authorized to 
                                appear before a commission who is 
                                thereafter found not to satisfy the 
                                requirements for eligibility or who 
                                fails to comply with laws, rules, 
                                regulations, or other orders applicable 
                                to the commission proceedings or any 
                                other individual who violates such 
                                laws, rules, regulations, or orders may 
                                be disciplined as the presiding officer 
                                deems appropriate, including revocation 
                                of eligibility to appear before that 
                                commission. The Court may further 
                                revoke that attorney's or any other 
                                person's eligibility to appear before 
                                any other commission convened under 
                                this Act.
                                    (III) The presiding officer shall 
                                ensure the expeditious conduct of the 
                                trial. In no circumstance shall 
                                accommodation of counsel be allowed to 
                                delay proceedings unreasonably.
                                    (IV) The presiding officer may 
                                certify interlocutory questions to the 
                                Military Commission Review Panel for 
                                the Armed Forces as the presiding 
                                officer deems appropriate.
    (b) Powers of a Commission.--A commission shall have the following 
powers:
            (1) To summon witnesses to the trial and to require their 
        attendance and testimony and to put questions to them.
            (2) To require the production of documents and other 
        evidentiary material.
            (3) To administer oaths to witnesses.
            (4) To appoint officers for the carrying out of any task 
        designated by the commission, including the power to have 
        evidence taken.

SEC. 7. PERSONS IN CUSTODY.

    (a) In General.--Not later than 60 days after the date of enactment 
of this Act, the Secretary of Defense shall develop--
            (1) a complete listing of all persons who--
                    (A) are being detained by the Department of Defense 
                at Guantanamo Bay, Cuba; and
                    (B) the Government wishes to continue to detain as 
                an unprivileged combatant; and
            (2) a detailed summary of the evidence upon which the 
        determination to keep a person described in paragraph (1) in 
        custody was made.
    (b) Congressional Oversight.--Not later than 10 days after 
developing the list described in subsection (a), the Secretary of 
Defense shall submit an unclassified version of that list to the 
appropriate committees of Congress. A classified, unredacted version of 
that list shall also be submitted to the appropriate committees of 
Congress for review.
    (c) Updated List.--
            (1) In general.--Not less than once every 60 days after the 
        date the list described in subsection (a) is completed, the 
        Secretary of Defense shall update the list of the persons 
        described in subsection (a) and submit to the appropriate 
        committees of Congress a detailed report for each person on 
        such list that includes--
                    (A) the name and nationality of each such person; 
                and
                    (B) with respect to each such person--
                            (i) a detailed statement of why such person 
                        has not been charged, repatriated, or released;
                            (ii) a statement of when the United States 
                        intends to charge, repatriate, or release such 
                        person;
                            (iii) a description of the procedures to be 
                        employed by the United States to determine 
                        whether to charge, repatriate, or release such 
                        person and a schedule for the employment of 
                        such procedures; and
                            (iv) if the Secretary of Defense has 
                        transferred or has plans to transfer such 
                        person from the custody of the Secretary to 
                        another agency or department of the United 
                        States, a description of such transfer.
            (2) Form of reports.--Each report required by this 
        subsection shall be submitted in an unclassified form, to the 
        maximum extent practicable, and may include a classified annex, 
        if necessary.
            (3) Appropriate committees of congress defined.--In this 
        subsection, the term ``appropriate committees of Congress'' 
        means--
                    (A) the Committee on Armed Services, the Committee 
                on the Judiciary, and the Select Committee on 
                Intelligence of the Senate; and
                    (B) the Committee on Armed Services, the Committee 
                on the Judiciary, and the Permanent Select Committee on 
                Intelligence of the House of Representatives.
    (d) Congressional Oversight.--Not later than 10 days after updating 
the list of persons under subsection (c), the Secretary of Defense 
shall submit that updated list to the appropriate committees of 
Congress in both unclassified and unredacted, classified form.

SEC. 8. FIELD TRIBUNALS.

    (a) In General.--Not more than 30 days after a suspected 
unprivileged combatant has been detained by United States forces, the 
Department of Defense shall conduct a field tribunal in order to 
determine whether the detainee is an unprivileged combatant and whether 
the detainee is entitled to the rights afforded under the Geneva 
Convention.
    (b) Procedures.--The procedures governing a field tribunal shall be 
promulgated by the Department of Defense

SEC. 9. CLASSIFICATION TRIBUNALS.

    (a) In General.--A detainee shall be released and repatriated to an 
appropriate country unless a classification tribunal board finds by a 
preponderance of the evidence that--
            (1) the detainee is a threat to the national security 
        interest of the United States; or
            (2) there are reasonable grounds to believe that if 
        released the detainee would take up arms against the United 
        States.
    (b) Compliance With Geneva Conventions.--If a detainee is found to 
be a privileged combatant entitled to provisions under the Convention 
Relative to the Treatment of Prisoners of War, done at Geneva, August 
12, 1948 (6 UST 3516), then the detainee must be treated in accordance 
with that convention.
    (c) Citizen of the United States.--If a detainee is found to be a 
citizen of the United States of America, the detainee shall not be held 
or tried under this Act.
    (d) Classification Tribunal Board.--A classification tribunal shall 
be conducted by a board appointed by the Secretary of Defense and 
consist solely of line officers, one of whom shall be an attorney.
    (e) Determination.--
            (1) In general.--If a classification tribunal board finds 
        that a detainee meets the requirements of subsection (a), the 
        classification tribunal board shall order that the detainee 
        shall continue to be detained by the Department of Defense, 
        subject to periodic review under subsection (h).
            (2) Time period.--The time period for the detention of a 
        detainee under paragraph (1) may not exceed the time period 
        that United States forces are engaged in combat operations as 
        defined by the Department of Defense in the nation or theater 
        where the detainee was captured so long as the detainee is 
        found to be a privileged combatant.
            (3) Conclusion of combat.--At the conclusion of combat 
        operations within a given theater or nation--
                    (A) a privileged combatant that was captured in 
                that area shall be either indicted under this Act or 
                repatriated to the appropriate country; and
                    (B) an unprivileged combatant may continue to be 
                detained pursuant to subsection (a).
    (f) Considerations.--
            (1) In general.--In making a determination under subsection 
        (a), a classification tribunal board shall consider any 
        information brought to its attention regarding the need for 
        continued detention, including--
                    (A) the detainee's alleged position or rank in any 
                hostile organization;
                    (B) the activities of that hostile organization;
                    (C) any statements made by the detainee in response 
                to interrogation; and
                    (D) the detainee's history of violence or terrorist 
                activity.
            (2) Prima facie evidence.--If the Government represents 
        that a detainee was captured during a military engagement while 
        taking up arms against, or supporting military operations 
        against, the Armed Forces of the United States or its allies, 
        there shall be prima facie evidence that, if released, the 
        detainee would take up arms against the United States.
    (g) Timing.--A detainee shall be afforded a classification tribunal 
as soon as is reasonably practicable but not later than 180 days after 
the detainee's capture and not later than 30 days after the detainee is 
listed under section 7, unless continued.
    (h) Periodic Review.--
            (1) In general.--
                    (A) Semiannual review.--The classification tribunal 
                shall conduct a classification hearing for each 
                detainee not less frequently than every 180 days, in 
                accordance with the procedures established under this 
                section and section 10.
                    (B) Action period.--A detainee apprehended during a 
                military engagement while taking up arms against, or 
                supporting military operations against, the Armed 
                Forces of the United States or its allies may be 
                detained until the cessation of armed hostilities in 
                the nation or region in which they were captured.
            (2) Argument.--The Government and the detainee may be heard 
        regarding the review under paragraph (1).

SEC. 10. CLASSIFICATION TRIBUNAL PROCEDURES.

    (a) Detainees.--
            (1) In general.--A detainee shall not be required to 
        testify or present any evidence at a classification tribunal.
            (2) Presence.--A detainee shall be entitled to be present 
        at the classification tribunal, unless the head of the tribunal 
        has decided to admit classified information.
    (b) Counsel.--
            (1) In general.--A detainee is entitled to the assistance 
        of counsel admitted to practice under this Act at every stage 
        of the classification tribunal, including the periodic review 
        of orders under subsection (e).
            (2) Right to appointed counsel.--A detainee who is unable 
        to obtain counsel is entitled to have counsel admitted to 
        practice before a commission under this Act.
            (3) Refusal of counsel.--A detainee may waive counsel but 
        shall not be entitled to protected information.
    (c) Discovery.--
            (1) Government's disclosure.--Not later than 3 days prior 
        to the classification tribunal, the Government shall make 
        available for inspection by counsel for the detainee any 
        affidavit or affirmation the Government intends to offer in 
        support of continuing to detain the detainee. A classification 
        tribunal board shall maintain a copy of any submissions made by 
        the Government for inspection by the detainee and for 
        transmittal, if necessary, to that tribunal.
            (2) Detainee's disclosure.--If the detainee chooses to 
        submit any evidence, such evidence, including a list of any 
        witnesses the detainee intends to call, shall be made available 
        to the Government for inspection not later than 3 days prior to 
        the classification tribunal.
    (d) Evidence.--
            (1) In general.--The Federal Rules of Evidence shall not 
        apply to a classification tribunal.
            (2) Admissibility standard.--Evidence shall be admitted if 
        the classification tribunal board determines the evidence would 
        have probative value to a reasonable person.
            (3) Affidavit or affirmation.--The Government may proceed 
        by proffer and submit any relevant information by affidavit or 
        affirmation, unless decided unreliable by the members of the 
        classification tribunal board.
            (4) Cross-examination.--
                    (A) Government witnesses.--If a Government chooses 
                to call witnesses, the detainee may cross-examine those 
                witnesses on all relevant facts.
                    (B) Detainee witnesses.--If a detainee calls any 
                witnesses, they shall be subject to cross examination.
                    (C) Detainee.--If the detainee chooses to testify, 
                the detainee shall be subject to cross-examination.
    (e) Defenses.--A detainee may challenge whether the detainee 
satisfies the elements required under subsection (a).
    (f) Proceedings.--
            (1) In general.--A classification tribunal shall be closed 
        to the public.
            (2) Security clearances.--Each person present at a 
        classification tribunal, other than the detainee, shall possess 
        a security clearance appropriate to the level of any classified 
        information being presented.
            (3) Public information regarding proceedings.--After the 
        classification tribunal board rules in the classification 
        tribunal, the parties shall propose a nonclassified summary to 
        that board. The board shall publicly release a summary, 
        containing any information generated at the tribunal which can 
        be disclosed in a manner consistent with the Classified 
        Information Procedures Act (18 U.S.C. App.) and the national 
        security of the United States.
    (g) Reinstituting Classification Proceedings.--
            (1) In general.--If a matter involving the classification 
        tribunal of a detainee is dismissed without prejudice by the 
        classification tribunal or withdrawn by the Government at, or 
        prior to, the classification tribunal, the Government may 
        reinstitute the matter with the tribunal board that dismissed 
        or permitted the withdrawal of the matter.
            (2) Time limit.--A complaint reinstituting proceedings 
        under paragraph (1) shall be filed not later than 10 days after 
        the dismissal or withdrawal of the matter.
            (3) Number.--The Government may reinstitute proceedings 
        under paragraph (1) not more than twice and only if approved by 
        the ranking member on the classification tribunal board.

SEC. 11. CONTINUANCE OF CLASSIFICATION TRIBUNALS.

    (a) Continuances.--
            (1) In general.--A classification tribunal board may, for 
        cause shown, grant a continuance of a classification tribunal.
            (2) Continuance.--
                    (A) In general.--Upon motion of the Government, the 
                classification tribunal board may grant a continuance 
                for as long as necessary, but no longer than a 6-month 
                period, under paragraph (1) if the classification 
                tribunal board determines that the detainee is a high 
                level individual in the planning or financing of 
                terrorist activities or the individual possess 
                information vital to the safety of the United States or 
                its citizens.
                    (B) Subsequent continuances.--The Government may 
                obtain subsequent continuances for additional 6-month 
                periods so long as the classification tribunal board 
                finds such continuances are necessary to the 
                informational gathering purposes as it related to the 
                national security of the United States.
            (3) Ex parte applications.--
                    (A) In general.--The Government may move for a 
                continuance under paragraph (1) ex parte.
                    (B) Detainee rights.--A detainee--
                            (i) is not entitled to representation by 
                        counsel in connection with any such ex parte 
                        motion; and
                            (ii) shall not be given notice of the 
                        request for a hearing prior to the ruling of 
                        the classification tribunal board on the 
                        Government's request for a continuance pursuant 
                        to paragraph (2).
    (b) Grant of Continuance.--For each continuance granted under 
subsection (a), the classification tribunal board shall note on the 
record of the proceedings--
            (1) the grounds for granting each such continuance;
            (2) the identity of the party requesting the continuance;
            (3) the new date and time for the tribunal hearing; and
            (4) the reasons that the date under paragraph (3) was 
        chosen.

SEC. 12. CRIMINAL PROSECUTION PROCEDURES GENERALLY.

    (a) Counsel.--
            (1) In general.--A defendant in a criminal proceeding under 
        this Act has a right to be represented by counsel admitted to 
        practice before a commission under this Act.
            (2) Appointed counsel.--
                    (A) In general.--A defendant who is unable to 
                obtain counsel is entitled to have counsel appointed 
                and to be represented by such counsel at every stage of 
                the proceeding subsequent to being indicted.
                    (B) Appointment procedure.--The Secretary of 
                Defense shall determine the rules for appointing 
                counsel to practice before the commission.
    (b) Discovery.--
            (1) Classified documents and objects.--The Government shall 
        provide the defense with access to evidence the Government 
        intends to introduce at trial and with access to evidence known 
        to the Government or which should be known to the Government 
        that tends to exculpate the accused. Information disclosed to 
        the defense may not be disclosed to the defendant if it is 
        classified as defined by this Act. The defense may submit 
        classified information for review under section 12(b)(2).
            (2) Separate commission concerning classified 
        information.--The Secretary of Defense shall appoint a 
        commission to conduct a thorough review of the classification 
        system for national security information, including the policy, 
        procedures, and practices of the system. The Secretary of 
        Defense shall determine what level of security clearance is 
        necessary to conduct the review under this paragraph. No person 
        shall be appointed as a member of the commission who does not 
        have a security clearance at or above the level of clearance so 
        designated by the Secretary. The commission shall make 
        recommendations to the Secretary of Defense as to the 
        declassification of information relevant to the trial of 
        detainees.
            (3) Regulating discovery.--
                    (A) In general.--A commission may, for good cause, 
                deny, restrict, or defer discovery or inspection, or 
                grant other appropriate relief.
                    (B) Ex parte request.--A party may make an ex parte 
                request in writing that a commission deny, restrict, or 
                defer discovery or inspection under subparagraph (A). 
                If the a commission grants a request under this 
                subparagraph, the Commission shall preserve the entire 
                text of the party's request under seal.
                    (C) Failure to comply.--If a party fails to comply 
                with the rules of discovery applicable to a commission, 
                the commission may--
                            (i) order that party to permit the 
                        discovery or inspection, specify its time, 
                        place, and manner, and prescribe other just 
                        terms and conditions; or
                            (ii) grant a continuance.
    (c) Open Proceedings.--
            (1) In general.--Except as provided in paragraphs (2) and 
        (3), a proceeding before a commission shall be open to the 
        public.
            (2) Classified information.--
                    (A) In general.--Upon motion by the Government, a 
                proceeding before a commission shall be closed to the 
                public if necessary to avoid disclosure of classified 
                information.
                    (B) Nondisclosure.--A priority under subparagraph 
                (A) shall not disclose any information presented during 
                a closed session to individuals excluded from such 
                proceeding or part thereof including the defendant.
            (3) Other bases.--A commission may order that a hearing be 
        held, in whole or in part, in camera, if the commission 
        determines--
                    (A) it is appropriate for the security of a witness 
                or a Government employee or to protect public safety; 
                or
                    (B) that an open hearing would deter a witness from 
                testifying freely or prevent the witness from 
                testifying at all.
            (4) Extrajudicial statements.--At the discretion of a 
        commission, the commission may issue an order limiting 
        extrajudicial statements by the parties.
    (d) Protected Information.--
            (1) In general.--A commission may issue protective orders 
        as necessary to safeguard protected information in a proceeding 
        before that commission.
            (2) Notification.--As soon as practicable, a party shall 
        notify a commission of any intent to offer evidence including 
        protected information .
            (3) Trial record.--
                    (A) In general.--All exhibits admitted as evidence 
                but containing protected information shall be sealed 
                and annexed to the record of trial.
                    (B) Protected information not admitted.--Any 
                protected information not admitted as evidence, but 
                reviewed by a commission in camera and withheld from 
                the defendant's counsel over objection shall be sealed 
                and annexed to the record of the trial, with any 
                associated motions and responses and any materials 
                submitted in support thereof, as additional exhibits.
    (e) Record of Trial.--
            (1) Requirement for record.--A record of each proceeding by 
        a commission shall be prepared promptly after the conclusion of 
        the trial.
            (2) Verbatim transcript.--The record of trial shall include 
        a verbatim written transcript of all sessions of the trial.
            (3) Exhibits and other evidence.--The record of trial shall 
        also include all exhibits and other real or demonstrative 
        evidence, except that photographs may be substituted for any 
        large written or graphic exhibits and any other real or 
        demonstrative evidence. If a photograph is substituted for an 
        exhibit or other evidence, the Government shall retain the 
        original exhibit or other evidence, respectively, until no 
        further appeal of the results of the trial is authorized.
            (4) Classified information.--In the case of a conviction of 
        a charge on which classified information is admitted as 
        evidence by a commission, the copy of the record of trial 
        submitted to the commission shall include the classified 
        information.

SEC. 13. TRIAL PROCEDURES FOR UNPRIVILEGED COMBATANTS.

    (a) Specialized Procedures.--
            (1) Standard of proof.--All 3 members of a commission shall 
        agree that the defendant is guilty beyond a reasonable doubt 
        for a defendant to be found guilty.
            (2) Rules of procedure.--
                    (A) In general.--Except as provided in subparagraph 
                (B), the Secretary of Defense shall draft supplementary 
                rules to govern all proceedings under this section.
                    (B) Standard.--Evidence is admissible if the 
                Secretary of Defense determines that the evidence would 
                have probative value to a reasonable person.
            (3) Form of trial.--Any trial under this subsection shall 
        take place before 2 military officers or attorneys and at least 
        one military judge.
            (4) Bad acts.--Other bad acts may be considered if they 
        would have fallen within the definition under this Act of 
        either terrorism or terrorist activity and they are deemed to 
        be relevant by a commission including propensity.
    (b) Custody.--The Department of Defense shall retain custody of any 
person determined by a commission to be unprivileged combatants after 
the person has been either convicted or sentenced in accordance with 
this Act, unless the Department of Defense deems otherwise. Decisions 
made by a commission in regards to a detainee's guilt or innocence may 
be considered by a tribunal when assessing the need to continue the 
detention of a detainee.

SEC. 14. COMMUNICATION WITH PERSONS IN CUSTODY.

    An individual detained, indicted, or convicted under this Act shall 
only be permitted to communicate with the interpreter assigned to the 
individual, the counsel representing the individual, prison personnel, 
and any other individual approved by the Secretary of Defense.

SEC. 15. COMMISSION COUNSEL.

    (a) In General.--A person shall be admitted to practice before a 
commission if the person--
            (1) is a United States citizen;
            (2) has been admitted to the practice of law in a State, 
        district, territory, or possession of the United States, or 
        before a Federal court;
            (3) has not been sanctioned or otherwise the subject of 
        disciplinary action by any court, bar, or other competent 
        governmental authority for misconduct;
            (4) is eligible for access to information classified at the 
        level of secret as defined by the Department of Defense; and
            (5) signs a written agreement to comply with all applicable 
        regulations or instructions for counsel, including any rules of 
        court for conduct during the course of proceedings.
    (b) Consultation With Colleagues.--Any person admitted under 
subsection (a) shall not confer with any colleague who does not have 
the appropriate clearance.
    (c) Security Clearance.--
            (1) Expedited consideration.--The Secretary of Defense 
        shall ensure that a person seeking to be admitted under 
        subsection (a) is timely processed for the security clearance 
        required for access to materials necessary for providing a 
        defendant with effective assistance of counsel.
            (2) Counsel ineligible for clearance.--If the Secretary of 
        Defense determines a person is not eligible for the necessary 
        security clearance, the person shall not be permitted to 
        represent an individual in any proceeding before the 
        Commission. The determination of the Secretary of Defense shall 
        be final and is not subject to appeal to, or other review by, 
        any court of the United States.
    (d) Travel Expenses.--The Secretary of Defense shall reimburse any 
person not employed by the Government who is representing an individual 
before the Commission for travel away from the home or regular place of 
business of the person in connection with such representation. The 
rates for the payment of travel expenses under this subsection shall be 
those authorized for employees of agencies under subchapter I of 
chapter 57 of title 5, United States Code.
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