1.Short title; authority;
findings
(a)This Act may be cited
as the Unprivileged Combatant Act of
2006
.
(b)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)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.
2.As used in this Act, the following
definitions apply:
(1)The term classification tribunal means any
tribunal conducted under section 9 or any related proceeding.
(2)Classification
tribunal boardThe term classification tribunal
board means a board established pursuant to section 9(d).
(3)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)The
term commission means a military commission established pursuant
to section 3.
(5)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)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)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)The
term judge means a United States military judge designated by the
Secretary of Defense to hear cases under this Act.
(9)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)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)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 CongressThe 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.
3.Authorizing
military commissionsThe
President is authorized to establish military commissions for the trial of
individuals for offenses as provided in this Act.
4.
(a)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)
(1)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 warA commission shall have exclusive
jurisdiction over violations of the laws of war committed by unprivileged
combatants.
(3)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.
5.
(a)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)
(1)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 requirementsA 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)
(1)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)This section shall take effect on the date of enactment of
this
Act.
.
(2)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.
.
6.
(a)
(1)
(A)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)Each commission shall consist of at least 3 military
officers, at least one of whom shall be a military judge.
(C)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)Each
member and alternate member of the commission shall be a military
officer.
(E)
(i)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)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)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.
7.
(a)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)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)
(1)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)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 definedIn 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)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.
8.
(a)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)The
procedures governing a field tribunal shall be promulgated by the Department of
Defense
9.
(a)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 ConventionsIf 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 StatesIf 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 boardA 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)
(1)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)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)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)
(1)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)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)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)
(1)
(A)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)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)The
Government and the detainee may be heard regarding the review under paragraph
(1).
10.Classification
tribunal procedures
(a)
(1)A detainee shall not be required to testify or present
any evidence at a classification tribunal.
(2)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)
(1)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 counselA detainee who is unable to obtain counsel is
entitled to have counsel admitted to practice before a commission under this
Act.
(3)A detainee may waive counsel but shall not be entitled to
protected information.
(c)
(1)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)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)
(1)The Federal Rules of Evidence shall not apply to a
classification tribunal.
(2)Evidence shall be admitted if the classification
tribunal board determines the evidence would have probative value to a
reasonable person.
(3)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)
(A)If a Government chooses to call witnesses, the detainee
may cross-examine those witnesses on all relevant facts.
(B)If a detainee calls any witnesses, they shall be
subject to cross examination.
(C)If
the detainee chooses to testify, the detainee shall be subject to
cross-examination.
(e)A
detainee may challenge whether the detainee satisfies the elements required
under subsection (a).
(f)
(1)A classification tribunal shall be closed to the
public.
(2)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 proceedingsAfter 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)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)A complaint reinstituting proceedings under paragraph (1)
shall be filed not later than 10 days after the dismissal or withdrawal of the
matter.
(3)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.
11.Continuance of
classification tribunals
(a)
(1)A classification tribunal board may, for cause shown,
grant a continuance of a classification tribunal.
(2)
(A)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)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)
(A)The Government may move for a continuance under paragraph
(1) ex parte.
(B)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)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.
12.Criminal
prosecution procedures generally
(a)
(1)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)
(A)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)The Secretary of Defense shall determine the rules for
appointing counsel to practice before the commission.
(b)
(1)Classified
documents and objectsThe 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 informationThe 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)
(A)A commission may, for good cause, deny, restrict, or
defer discovery or inspection, or grant other appropriate relief.
(B)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)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)
(1)Except as provided in paragraphs (2) and (3), a
proceeding before a commission shall be open to the public.
(2)
(A)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)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)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)At the discretion of a commission, the commission may
issue an order limiting extrajudicial statements by the parties.
(d)
(1)A commission may issue protective orders as necessary to
safeguard protected information in a proceeding before that commission.
(2)As
soon as practicable, a party shall notify a commission of any intent to offer
evidence including protected information .
(3)
(A)All exhibits admitted as evidence but containing
protected information shall be sealed and annexed to the record of
trial.
(B)Protected
information not admittedAny 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)
(1)A record of each proceeding by a commission shall be
prepared promptly after the conclusion of the trial.
(2)The record of trial shall include a verbatim written
transcript of all sessions of the trial.
(3)Exhibits and
other evidenceThe 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)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.
13.Trial
procedures for unprivileged combatants
(a)
(1)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)
(A)Except as provided in subparagraph (B), the Secretary of
Defense shall draft supplementary rules to govern all proceedings under this
section.
(B)Evidence
is admissible if the Secretary of Defense determines that the evidence would
have probative value to a reasonable person.
(3)Any trial under this subsection shall take place before 2
military officers or attorneys and at least one military judge.
(4)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)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.
14.Communication
with persons in custodyAn
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.
15.
(a)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 colleaguesAny person admitted under subsection (a) shall
not confer with any colleague who does not have the appropriate
clearance.
(c)
(1)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 ClearanceIf 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)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.