[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3861 Placed on Calendar Senate (PCS)]

<DOC>





                                                       Calendar No. 595
109th CONGRESS
  2d Session
                                S. 3861

 To facilitate bringing to justice terrorists and other unlawful enemy 
 combatants through full and fair trials by military commissions, and 
                          for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 6, 2006

 Mr. Frist (for himself, Mr. McConnell, and Mr. Inhofe) introduced the 
             following bill; which was read the first time

                           September 8, 2006

            Read the second time and placed on the calendar

_______________________________________________________________________

                                 A BILL


 
 To facilitate bringing to justice terrorists and other unlawful enemy 
 combatants through full and fair trials by military commissions, and 
                          for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Bringing Terrorists to Justice Act 
of 2006''.

SEC. 2. FINDINGS.

    Congress makes the following findings:
            (1) For more than 10 years, the al Qaeda terrorist 
        organization has waged an unlawful war of violence and terror 
        against the United States and its allies. Al Qaeda was involved 
        in the bombing of the World Trade Center in New York City in 
        1993, the bombing of the United States Embassies in Kenya and 
        Tanzania in 1998, and the attack on the U.S.S. Cole in Yemen in 
        2000. On September 11, 2001, al Qaeda launched the most deadly 
        foreign attack on United States soil in history. Nineteen al 
        Qaeda operatives hijacked four commercial aircraft and piloted 
        them into the World Trade Center Towers in New York City and 
        the headquarters of the United States Department of Defense at 
        the Pentagon, and downed United Airlines Flight 93. The attack 
        destroyed the Towers, severely damaged the Pentagon, and 
        resulted in the deaths of approximately 3,000 innocent people.
            (2) Following the attacks on the United States on September 
        11th, Congress recognized the existing hostilities with al 
        Qaeda and affiliated terrorist organizations and, by the 
        Authorization for the Use of Military Force Joint Resolution 
        (Public Law 107-40), recognized that ``the President has 
        authority under the Constitution to take action to deter and 
        prevent acts of international terrorism against the United 
        States'' and authorized the President ``to use all necessary 
        and appropriate force against those nations, organizations, or 
        persons he determines planned, authorized, committed, or aided 
        the terrorist attacks that occurred on September 11, 2001 . . . 
        in order to prevent any future acts of international terrorism 
        against the United States by such nations, organizations or 
        persons.''.
            (3) The President's authority to convene military 
        commissions arises from the Constitution's vesting in the 
        President of the executive power and the power of Commander in 
        Chief of the Armed Forces. As the Supreme Court of the United 
        States recognized in Madsen v. Kinsella, 343 U.S. 341, 346-48 
        (1952), ``[s]ince our nation's earliest days, such commissions 
        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.''.
            (4) In exercising the authority vested in the President by 
        the Constitution and laws of the United States, including the 
        Authorization for Use of Military Force Joint Resolution, and 
        in accordance with the law of war, the President has detained 
        enemy combatants in the course of this armed conflict and 
        issued the Military Order of November 13, 2001, to govern the 
        ``Detention, Treatment, and Trial of Certain Non-Citizens in 
        the War Against Terrorism''. This Order authorized the 
        Secretary of Defense to establish military commissions to try 
        individuals subject to the Order for any offenses triable by 
        military commission that such individuals are alleged to have 
        committed.
            (5) The Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 
        2749 (2006), held that the military commissions established by 
        the Department of Defense under the President's Military Order 
        of November 13, 2001, were not consistent with certain aspects 
        of United States domestic law. The Congress may by law, and 
        does by enactment of this statute, eliminate any deficiency of 
        statutory authority to facilitate bringing terrorists with whom 
        the United States is engaged in armed conflict to justice for 
        violations of the law of war and other offenses triable by 
        military commissions. The prosecution of such individuals by 
        military commissions established and conducted consistent with 
        this Act fully complies with the Constitution, the laws of the 
        United States, treaties to which the United States is a party, 
        and the law of war.
            (6) The use of military commissions is particularly 
        important in this context because other alternatives, such as 
        the use of courts-martial, generally are impracticable. The 
        terrorists with whom the United States is engaged in armed 
        conflict have demonstrated a commitment to the destruction of 
        the United States and its people, to the violation of the law 
        of war, and to the abuse of American legal processes. In a time 
        of ongoing armed conflict, it generally is neither practicable 
        nor appropriate for combatants like al Qaeda terrorists to be 
        tried before tribunals that include all of the procedures 
        associated with courts-martial.
            (7) Many procedures for courts-martial would not be 
        practicable in trying the unlawful enemy combatants for whom 
        this Act provides for trial by military commission. For 
        instance, court martial proceedings would in certain 
        circumstances--
                    (A) compel the Government to share classified 
                information with the accused, even though members of al 
                Qaeda cannot be trusted with our Nation's secrets and 
                it would not be consistent with the national security 
                of the United States to provide them with access to 
                classified information;
                    (B) exclude the use of hearsay evidence even though 
                such evidence often will be the best and most reliable 
                evidence that the accused has committed a war crime. 
                For example, many witnesses in military commission 
                trials are likely to be foreign nationals who are not 
                amenable to process or may be precluded for national 
                security reasons from entering the United States or 
                Guantanamo Bay to testify. Other witnesses may be 
                unavailable because of military necessity, 
                incarceration, injury, or death. In short, applying the 
                hearsay rules from the Manual for Courts-Martial or 
                from the Federal Rules of Evidence would make it 
                virtually impossible to bring terrorists to justice for 
                their violations of the law of war;
                    (C) specify speedy trials and technical rules for 
                sworn and authenticated statements when, due to the 
                exigencies of wartime, the United States cannot safely 
                require members of the armed forces to gather evidence 
                on the battlefield, including civilian eyewitness 
                testimony, as though they were police officers. Nor can 
                the United States divert members from the front lines 
                and their duty stations to attend military commission 
                proceedings. Therefore, strict compliance with such 
                rules for evidence gathered on the battlefield would be 
                impracticable, given the preeminent focus on military 
                operations and the chaotic nature of combat.
            (8) The exclusive judicial review for which this Act, and 
        the Detainee Treatment Act of 2005, provides is without 
        precedent in the history of armed conflicts involving the 
        United States, exceeds the scope of judicial review 
        historically provided for by military commissions, and is 
        channeled in a manner appropriately tailored to--
                    (A) the circumstances of the conflicts between the 
                United States and international terrorist 
                organizations; and
                    (B) the need to ensure fair treatment of those 
                detained as enemy combatants, to minimize the diversion 
                of members of the armed forces from other wartime 
                duties, and to protect the national security of the 
                United States.
            (9) In early 2002, as memorialized in a memorandum dated 
        February 7, 2002, the President determined that common Article 
        3 of the Geneva Conventions did not apply with respect to the 
        United States conflict with al Qaeda because al Qaeda was not a 
        party to those treaties and the conflict with al Qaeda was an 
        armed conflict of an international character. That was the 
        interpretation of the United States prior to the Supreme 
        Court's decision in Hamdan on June 29, 2006. Hamdan's statement 
        to the contrary makes it appropriate to clarify the standards 
        imposed by common Article 3. This Act makes clear that the 
        prohibitions against cruel, inhuman, and degrading treatment 
        found in the Detainee Treatment Act of 2005 fully satisfy the 
        obligations of the United States with respect to the standards 
        for detention and treatment established by section 1 of common 
        Article 3, except for those obligations arising under 
        paragraphs (b) and (d). In addition, the Act makes clear that 
        the Geneva Conventions are not a source of judicially 
        enforceable individual rights, thereby reaffirming that 
        enforcement of the obligations imposed by the Conventions is a 
        matter between the nations that are parties to them.

SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS.

    (a) In General.--The President is authorized to establish military 
commissions for violations of the law of war and other offenses triable 
by military commissions as provided in section 4 of this Act (chapter 
47A of title 10).
    (b) Construction.--The authority granted in subsection (a) shall 
not be construed to limit the authority of the President under the 
Constitution of the United States or the laws thereof to establish 
military commissions on the battlefield, in occupied territories, or in 
other armed conflicts should circumstances so require.
    (c) Scope of Punishment Authority.--A military commission 
established pursuant to subsection (a) shall have authority to impose 
upon any person found guilty after a proceeding under this Act a 
sentence that is appropriate to the offense or offenses for which there 
was a finding of guilt, which sentence may include death where 
authorized by this Act, imprisonment for life or a term of years, 
payment of a fine or restitution, or such other lawful punishment or 
condition of punishment as the commission shall determine to be proper.
    (d) Execution of Punishment.--The Secretary of Defense shall be 
authorized to carry out a sentence of punishment decreed by a military 
commission pursuant to subsection (a) in accordance with such 
procedures as the Secretary may prescribe.
    (e) Annual Report on Trials by Military Commission.--
            (1) Annual report required.--Not later than December 31 
        each year, the Secretary of Defense shall submit to the Armed 
        Services Committees of the House of Representatives and the 
        Senate an annual report on the conduct of trials by military 
        commissions established pursuant to subsection (a) during such 
        year.
            (2) Form.--Each such report shall be submitted in 
        unclassified form, with classified annex, if necessary and 
        consistent with national security.

SEC. 4. MILITARY COMMISSIONS.

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

                  ``CHAPTER 47A--MILITARY COMMISSIONS

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``Sec. 948a. Definitions
    ``In this chapter:
            ``(1) Alien.--The term `alien' means an individual who is 
        not a citizen of the United States.
            ``(2) Classified information.--The term `classified 
        information' means the following--
                    ``(A) Any information or material that has been 
                determined by the United States Government pursuant to 
                statute, Executive order, or regulation to require 
                protection against unauthorized disclosure for reasons 
                of national security.
                    ``(B) Any restricted data, as that term is defined 
                in section 11 y. of the Atomic Energy Act of 1954 (42 
                U.S.C. 2014(y)).
            ``(3) Commission.--The term `commission' means a military 
        commission established pursuant to chapter 47A of title 10, 
        United States Code.
            ``(4) Convening authority.--The term `convening authority' 
        shall be the Secretary of Defense or his designee.
            ``(5) Lawful enemy combatant.--The term `lawful enemy 
        combatant' means an individual determined by or under the 
        authority of the President or Secretary of Defense (whether on 
        an individualized or collective basis) to be: (i) a member of 
        the regular forces of a State party engaged in hostilities 
        against the United States or its co-belligerents; (ii) 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 (iii) a member of a regular armed forces 
        who professes allegiance to a government engaged in such 
        hostilities, but not recognized by the United States.
            ``(6) Secretary.--The term `Secretary' means the Secretary 
        of Defense.
            ``(7) Unlawful enemy combatant.--The term `unlawful enemy 
        combatant' means an individual determined by or under the 
        authority of the President or the Secretary of Defense--
                    ``(A) to be part of or affiliated with a force or 
                organization--including but not limited to al Qaeda, 
                the Taliban, any international terrorist organization, 
                or associated forces--engaged in hostilities against 
                the United States or its co-belligerents; in violation 
                of the law of war;
                    ``(B) to have committed a hostile act in aid of 
                such a force or organization so engaged; or
                    ``(C) to have supported hostilities in aid of such 
                a force or organization so engaged.
            ``This definition includes any individual determined by a 
        Combatant Status Review Tribunal, before the effective date of 
        this Act, to have been properly detained as an enemy combatant, 
        but excludes 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 these military commissions would be inconsistent with 
        Articles 64-76 of the Geneva Convention Relative to the 
        Protection of Civilian Persons in Time of War of August 12, 
        1949. For purposes of this section, 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.
            ``(8) Geneva conventions.--The term `Geneva Conventions' 
        means the international conventions signed at Geneva on August 
        12, 1949, including common Article 3.
``Sec. 948b. Military commissions generally
    ``(a) Purpose.--This chapter codifies and establishes procedures 
governing the use of military commissions to try unlawful enemy 
combatants for violations of the law of war and other offenses triable 
by military commissions. Although military commissions traditionally 
have been constituted by order of the President, the decision of the 
Supreme Court in Hamdan v. Rumsfeld makes it both necessary and 
appropriate to codify procedures for military commissions as set forth 
herein.
    ``(b) Rule of Construction.--The procedures for military 
commissions set forth in this chapter are modeled after the procedures 
established for courts-martial in the Uniform Code of Military Justice. 
However, it would be neither desirable nor practicable to try unlawful 
enemy combatants by court-martial procedures. The trial of such persons 
by military commission presents new challenges that require that 
interpretations of this Act not be unduly influenced by the rules and 
procedures developed for courts-martial. Therefore, no construction or 
application of chapter 47 of this title shall be binding in the 
construction or application of this chapter.
    ``(c) Alien unlawful enemy combatants may be tried for violations 
of the law of war and other offenses triable by military commissions 
committed against the United States or its co-belligerents before, on, 
or after September 11, 2001.
    ``(d) A military commission established under this chapter is a 
regularly constituted court, affording all the necessary `judicial 
guarantees which are recognized as indispensable by civilized peoples' 
for purposes of common Article 3 of the Geneva Conventions.
``Sec. 948c. Persons subject to military commissions
    ``Alien unlawful enemy combatants, as defined in section 948a of 
this title, shall be subject to trial by military commissions as set 
forth in this chapter.
``Sec. 948d. Jurisdiction of military commissions
    ``(a) Military commissions shall have jurisdiction to try any 
offense made punishable under this chapter, when committed by an alien 
unlawful enemy combatant. Military commissions shall not have 
jurisdiction over lawful enemy combatants. Lawful enemy combatants who 
violate the law of war are subject to chapter 47 of Title 10, United 
States Code. Courts-martial established under chapter 47 shall have 
jurisdiction to try a lawful enemy combatant for any offense made 
punishable under this chapter.
    ``(b) Military commissions shall not have jurisdiction over any 
individual 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 a `protected person' 
whose trial by these military commissions would be inconsistent with 
Articles 64-76 of the Geneva Convention Relative to the Protection of 
Civilian Persons in Time of War of August 12, 1949. Such persons shall 
be tried in courts-martial or other tribunals consistent with their 
status under the Geneva Conventions. For purposes of this section, the 
term `protected person' refers to the category of persons described in 
Article 4 of the Geneva Convention Relative to the Protected of 
Civilian Persons in Time of War of August 12, 1949.
    ``(c) Military commissions may, under such limitations as the 
Secretary of Defense may prescribe, adjudge any punishment not 
forbidden by this chapter, including the penalty of death where 
authorized by this chapter.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional 
                            members.
``Sec. 948h. Who may convene military commissions
    ``(a) The Secretary may issue orders convening military commissions 
to try individuals under this chapter.
    ``(b) The Secretary may delegate his authority to convene military 
commissions or to promulgate any regulations under this chapter.
``Sec. 948i. Who may serve on military commissions
    ``(a) In General.--Any commissioned officer of the United States 
armed forces on active duty is eligible to serve on a military 
commission. Eligible commissioned officers shall include, without 
limitation, reserve personnel on active duty, National Guard personnel 
on active duty in Federal service, and retired personnel recalled to 
active duty.
    ``(b) Detail of Members.--When convening a commission, the 
convening authority shall detail as members thereof such members of the 
armed forces as, in his opinion, 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 shall be eligible to 
serve as a member of a commission when he is the accuser or a witness 
for the prosecution or has acted as an investigator or counsel in the 
same case.
    ``(c) Excuse of Members.--Before a commission is assembled for the 
trial of a case, the convening authority may excuse a member of the 
commission from participating in the case.
``Sec. 948j. Military judge of a military commission
    ``(a) Detail of a Military Judge.--A military judge shall be 
detailed to each commission. The Secretary shall prescribe regulations 
providing for the manner in which military judges are detailed to such 
commissions. The military judge shall preside over each commission to 
which he has been detailed. The convening authority shall not prepare 
or review any report concerning the effectiveness, fitness, or 
efficiency of the military judge so detailed relating to his 
performance duty as a military judge.
    ``(b) Eligibility.--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 as a military judge by the Judge 
Advocate General of the armed force of which such military judge is a 
member. A commissioned officer who is certified to be qualified for 
duty as a military judge of a commission may perform such other duties 
as are assigned to him by or with the approval of that Judge Advocate 
General or his designee.
    ``(c) Ineligibility of Certain Individuals.--No person is eligible 
to act as military judge in any case in which he is the accuser or a 
witness or has acted as investigator or a counsel in the same case.
    ``(d) Consultation With Members; Ineligibility To Vote.--Except as 
provided in section 949d of this title, the military judge detailed to 
the commission may not consult with the members of the commission 
except in the presence of the accused, trial counsel, and defense 
counsel, nor may he vote with the members of the commission.
``Sec. 948k. Detail of trial counsel and defense counsel
    ``(a) Detail of Counsel Generally.--
            ``(1) Trial counsel and military defense counsel shall be 
        detailed for each commission.
            ``(2) Assistant trial counsel and assistant and associate 
        military defense counsel may be detailed for each commission.
            ``(3) Military defense counsel shall be detailed as soon as 
        practicable after the swearing of charges against the person 
        accused.
            ``(4) The Secretary shall prescribe regulations providing 
        for the manner in which counsel are detailed for military 
        commissions and for the persons who are authorized to detail 
        counsel for such military commissions.
    ``(b) Trial Counsel.--Subject to subsection (d), trial counsel 
detailed for a military commission under this chapter must be--
            ``(1) a judge advocate (as that term is defined in section 
        801 of this title) 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 
                commission pursuant to regulations prescribed by the 
                Secretary.
    ``(c) Military Defense Counsel.--Subject to subsection (d), 
military defense counsel detailed for a military commission under this 
chapter must be a judge advocate (as so defined) who is--
            ``(1) a graduate of an accredited law school or a member of 
        the bar of a Federal court or of the highest court of a State; 
        and
            ``(2) certified as competent to perform duties as defense 
        counsel before general courts-martial by the Judge Advocate 
        General of the armed force of which he is a member.
    ``(d) Ineligibility of Certain Individuals.--No person who has 
acted as an investigator, military judge, or member of a military 
commission under this chapter may act later as trial counselor or 
defense counsel in the same case. No person who has acted for the 
prosecution may act later in the same case for the defense, nor may any 
person who has acted for the defense act later in the same case for the 
prosecution.
``Sec. 948l. Detail or employment of reporters and interpreters
    ``(a) Court Reporters.--Under such regulations as the Secretary may 
prescribe, the convening authority of a military commission shall 
detail or employ qualified court reporters, who shall record the 
proceedings of and testimony taken before that commission.
    ``(b) Interpreters.--Under like regulations the convening authority 
may detail or employ interpreters who shall interpret for the 
commission, and, as necessary, for trial counsel and defense counsel.
    ``(c) Transcript; Record.--The transcript shall be under the 
control of the convening authority, which is responsible for preparing 
the record of the proceedings.
``Sec. 948m. Number of members; excuse of members; absent and 
              additional members
    ``(a) Number of Members.--(1) A military commission under this 
chapter shall, except as provided in paragraph (2), have at least five 
members.
    ``(2) In a case in which the death penalty is sought, the military 
commission shall have the number of members prescribed by section 
949m(c) of this title.
    ``(b) Excuse of Members.--No member of a military commission may be 
absent or excused after the commission has been assembled for the trial 
of the accused unless excused--
            ``(1) as a result of challenge;
            ``(2) by the military judge for physical disability or 
        other good cause; or
            ``(3) by order of the convening authority for good cause.
    ``(c) Absent and Additional Members.--Whenever a military 
commission is reduced below the requisite number of members, the trial 
may not proceed unless the convening authority details new members 
sufficient to provide not less than the requisite number. The trial may 
proceed with the new members present after the recorded evidence 
previously introduced before the members of the commission has been 
read to the commission in the presence of the military judge, the 
accused (except as provided by section 949d of this title), and counsel 
for both sides.

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; statements obtained 
                            by torture.
``948s. Service of charges.
``Sec. 948q. Charges and specifications
    ``(a) Charges and Specifications.--Charges and specifications 
against an accused 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 his 
        knowledge and belief.
    ``(b) Notice to Accused.-- Upon the swearing of the charges and 
specifications in accordance with subsection (a), the accused shall be 
informed of the charges and specifications against him as soon as 
practicable.
``Sec. 948r. Compulsory self-incrimination prohibited; statements 
              obtained by torture
    ``(a) In General.--No person shall be required to testify against 
himself at a commission proceeding.
    ``(b) Statements Obtained by Torture.--A statement obtained by use 
of torture, as defined in 18 U.S.C. 2340, whether or not under color of 
law, shall not be admissible against the accused, except against a 
person accused of torture as evidence the statement was made.
    ``(c) Statements Not Obtained by Torture.--No otherwise admissible 
statement may be received in evidence, including statements allegedly 
obtained by coercion, if the military judge finds that the 
circumstances under which the statement was made render it unreliable 
or lacking in probative value.
``Sec. 948s. Service of charges
    ``The trial counsel assigned to the case shall cause to be served 
upon the accused and counsel a copy of the charges upon which trial is 
to be had in English and, if appropriate, in another language that the 
accused understands, sufficiently in advance of trial to prepare a 
defense.

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``Sec. 949a. Rules
    ``(a) Procedures.--Pretrial, trial, and post-trial procedures, 
including elements and modes of proof, for cases triable by military 
commission under this chapter shall be prescribed by the Secretary, but 
may not be contrary to or inconsistent with this chapter.
    ``(b) Rules of Evidence.--Subject to such exceptions and 
limitations as the Secretary may provide by regulation, evidence in a 
military commission shall be admissible if the military judge 
determines that the evidence would have probative value to a reasonable 
person.
    ``(c) Hearsay Evidence.--Hearsay evidence is admissible, unless the 
military judge finds that the circumstances render it unreliable or 
lacking in probative value, provided that the proponent of the evidence 
makes the evidence known to the adverse party in advance of trial or 
hearing.
    ``The military judge shall exclude any evidence the probative value 
of which is substantially outweighed by the danger of unfair prejudice, 
confusion of the issues, or misleading the members of the commission, 
or by considerations of undue delay, waste of time, or needless 
presentation of cumulative evidence.
``Sec. 949b. Unlawfully influencing action of military commission
    ``(a) In General.--(1) No authority convening a military commission 
under this chapter may censure, reprimand, or admonish the commission 
or any member, military judge, or counsel thereof, with respect to the 
findings or sentence adjudged by the 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 commission 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) The foregoing provisions of this subsection shall 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 the military judge or counsel.
    ``(b) Prohibition on Consideration of Actions on Commission in 
Evaluation of Fitness.--In the preparation of an effectiveness, 
fitness, or efficiency report or any other report or document used in 
whole or in part for the purpose of determining whether a commissioned 
officer of the armed forces is qualified to be advanced, in grade, or 
in determining the assignment or transfer of any such officer or in 
determining whether any such officer should be retained on active duty, 
no person may--
            ``(1) consider or evaluate the performance of duty of any 
        member of a military commission under this chapter; or
            ``(2) give a less favorable rating or evaluation to any 
        commissioned officer because of the zeal with which such 
        officer, in acting as counsel, represented any accused before a 
        military commission under this chapter.
``Sec. 949c. Duties of trial counsel and defense counsel
    ``(a) Trial Counsel.--The trial counsel of a military commission 
shall prosecute in the name of the United States.
    ``(b) Defense Counsel.--(1) The accused shall be represented in his 
defense before a military commission 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 him, provided that civilian counsel--
            ``(A) is a United States citizen;
            ``(B) is admitted to the practice of law in a State, 
        district, territory, 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 
        information 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.
    ``Civilian defense counsel shall protect any classified information 
received during the course of their representation of the accused in 
accordance with all applicable law governing the protection of 
classified information, and shall not divulge such information to any 
person not authorized to receive it.
    ``(4) If the accused is represented by civilian counsel, military 
counsel detailed shall act as associate counsel.
    ``(5) 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 his 
sole discretion may detail additional military counsel.
    ``(6) Defense counsel may cross-examine each witness for the 
prosecution who testifies before the commission.
``Sec. 949d. Sessions
    ``(a) Sessions Without Presence of Members.--(1) At any time after 
the service of charges which have been referred for trial by military 
commission, the military judge may call the 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 of the commission;
            ``(C) if permitted by regulations of the Secretary, 
        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 of the 
        commission.
    ``(2) Except as provided in subsection (e), any proceedings under 
paragraph (1) shall be conducted in the presence of the accused, 
defense counsel, and trial counsel, and shall be made part of the 
record.
    ``(b) Proceedings in Presence of Accused.--Except as provided in 
subsections (c) and ( e), all proceedings of a military commission 
under this chapter shall be in the presence of the accused, defense 
counsel, and trial counsel, and shall be made a part of the record.
    ``(c) Deliberations or Vote of Members.--When the members of the 
commission deliberate or vote, only the members may be present.
    ``(d) Public Proceedings.--(1) The military commission shall hold 
open and public proceedings.
    ``(2) The military judge may close to the public all or a part of 
the proceedings of a military commission under this chapter only 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) Limited Exclusion of the Accused for the Protection of 
Classified Information.--(1) The military judge may, subject to the 
provisions of this subsection, permit the admission in a military 
commission under this chapter of classified information outside the 
presence of the accused.
    ``(2) The military judge shall not exclude the accused from any 
portion of the proceeding except upon a specific finding that 
extraordinary circumstances exist such that--
            ``(A) 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; or
                    ``(ii) is necessary to ensure the physical safety 
                of individuals; or
                    ``(iii) is necessary to prevent disruption of the 
                proceedings by the accused; and
            ``(B) the exclusion of the accused--
                    ``(i) is no broader than necessary; and
                    ``(ii) will not deprive the accused of a full and 
                fair trial.
    ``(3)(A) A finding under paragraph (2) may be based upon a 
presentation, including an ex parte or in camera presentation, by 
either trial counselor defense counsel.
    ``(B) Before trial counsel may make a presentation described in 
subparagraph (A) requesting the admission of classified evidence 
outside the presence of the accused, the head of the executive or 
military department or governmental agency which has control over the 
matter (after personal consideration by that officer) shall certify in 
writing to the military judge that--
            ``(i) the disclosure of such classified information to the 
        accused could reasonably be expected to prejudice the national 
        security; and
            ``(ii) such evidence has been declassified to the maximum 
        extent possible, consistent with the requirements of national 
        security.
    ``(4)(A) No evidence shall be admitted if the accused is not 
present for its admission or the evidence is not otherwise provided to 
the accused, unless the evidence is classified information and the 
military judge makes a specific finding that--
            ``(i) consideration of the evidence by the commission, 
        without the presence of the accused, is warranted; and
            ``(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 proceeding, 
the accused shall be provided with a redacted transcript of the 
proceeding 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 this subsection.
    ``(5)(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 subparagraph (4).
    ``(B) Civilian defense counsel shall be permitted to be present and 
to participate in all trial proceedings, and shall be given access to 
evidence admitted under sub-paragraph (4), provided that civilian 
defense counsel has obtained the necessary security clearances and that 
such presence and access are consistent with regulations that the 
Secretary may prescribe to protect classified information.
    ``(C) Notwithstanding any other provision of law, any defense 
counsel who receives classified information admitted pursuant to 
subparagraph (4) shall not be obligated to, and may not, disclose that 
evidence to the accused.
    ``(f) Admission of Statements of Accused.--(1) Notwithstanding any 
other provision in this chapter, no statement made by the accused 
during an interrogation, even if otherwise classified, may be admitted 
into evidence in a military commission under this chapter unless the 
accused is present for its admission or the evidence is otherwise 
provided to the accused.
    ``(2) For purposes of this subsection, a `statement' is a statement 
communicated knowingly and directly by the accused in response to 
questioning by foreign or United States military, intelligence, or 
criminal investigative personnel. This paragraph shall not be construed 
to prevent the redaction of intelligence sources or methods, which do 
not constitute statements of the accused, from any document provided to 
the accused or admitted into evidence.
``Sec. 949e. Continuances
    ``The military judge may, for reasonable cause, grant a continuance 
to any party for such time, and as often, as may appear to be just.
``Sec. 949f. Challenges
    ``(a) Challenges Authorized.--The military judge and members of the 
commission may be challenged by the accused or the trial counsel for 
cause stated to the commission. The military judge shall determine the 
relevance and validity of the challenges for cause, and may not receive 
a challenge to more than one person at a time. Challenges by the trial 
counsel shall ordinarily be presented and decided before those by the 
accused are offered.
    ``(b) Peremptory Challenges.--Each accused and the trial counsel is 
entitled to one peremptory challenge, but the military judge may not be 
challenged except for cause.
    ``(c) Challenges Against Additional Members.--Whenever additional 
members are detailed to the court, and after any challenges for cause 
against such additional members are presented and decided each accused 
and the trial counsel are entitled to one peremptory challenge against 
members not previously subject to peremptory challenge.
``Sec. 949g. Oaths
    ``(a) In General.--(1) Before performing their respective duties, 
military judges, members of commissions, 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 these duties are 
to be performed or for a particular case, shall be as prescribed in 
regulations of the Secretary. These 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 duty; and
            ``(B) if such an oath is taken it need not again be taken 
        at the time the judge advocate, or other person is detailed to 
        that duty.
    ``(b) Witnesses.--Each witness before a military commission under 
this chapter shall be examined on oath.
    ``(c) Oath Defined.--As used in this section, ``oath'' includes an 
affirmation.
``Sec. 949h. Former jeopardy
    ``(a) In General.--No person may, without his consent, be tried by 
a commission a second time for the same offense.
    ``(b) Scope of Trial.--No proceeding in which the accused has been 
found guilty by military commission upon any charge or specification is 
a trial in the sense of this section until the finding of guilty has 
become final after review of the case has been fully completed.
``Sec. 949i. Pleas of the accused
    ``(a) Plea of Not Guilty.--If an accused after a plea of guilty 
sets up matter inconsistent with the plea, or if it appears that he has 
entered the plea of guilty through lack of understanding of its meaning 
and effect, or if he fails or refuses to plead, a plea of not guilty 
shall be entered in the record, and the commission shall proceed as 
though he had pleaded not guilty.
    ``(b) Finding of Guilt After Guilty Plea.--With respect to any 
charge or specification to which a plea of guilty has been made by the 
accused and accepted by the military judge, a finding of guilty of the 
charge or specification may be entered immediately without a vote. This 
finding shall constitute the finding of the commission unless the plea 
of guilty is withdrawn prior to announcement of the sentence, in which 
event the proceedings shall continue as though the accused had pleaded 
not guilty.
``Sec. 949j. Opportunity to obtain witnesses and other evidence
    ``(a) In General.--(1) 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 specified in regulations prescribed by the 
Secretary.
    ``(2) Process issued in military commissions to compel witnesses to 
appear and testify and to compel the production of other evidence--
            ``(A) shall be similar to that which courts of the United 
        States having criminal jurisdiction may lawfully issue; and
            ``(B) shall run to any place where the United States shall 
        have jurisdiction thereof.
    ``(b) Treatment of Certain Items.--The military judge in a military 
commission under this chapter may, upon a sufficient showing, authorize 
trial counsel in making documents available to the defense through 
discovery conducted pursuant to such rules as the Secretary shall 
prescribe--
            ``(1) to delete specified items of classified information 
        from such documents;
            ``(2) to substitute an unclassified summary of the 
        information for such classified documents; or
            ``(3) to substitute an unclassified statement admitting 
        relevant facts that classified information would tend to prove.
    ``(c) 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 is classified may be provided 
solely to defense counsel, and not the accused, after in camera review 
by the military judge.
    ``(3) Before classified evidence may be withheld from the accused 
under this subsection, the executive or military department or 
governmental agency which has control over the matter shall ensure and 
shall certify in writing to the military judge that the disclosure of 
such evidence to the accused could reasonably be expected to prejudice 
the national security and that 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; and
            ``(B) shall be provided to civilian defense counsel, 
        provided that 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) Notwithstanding any other provision of law, any defense 
counsel who receives evidence under this subsection shall not be 
obligated to, and may not, disclose that evidence to the accused.
``Sec. 949k. Defense of lack of mental responsibility
    ``(a) Affirmative Defense.--It is an affirmative defense in a trial 
by military commission that, at the time of the commission of the acts 
constituting the offense, the accused, as a result of a severe mental 
disease or defect, was unable to appreciate the nature and quality or 
the wrongfulness of the acts. Mental disease or defect does not 
otherwise constitute a defense.
    ``(b) Burden of Proof.--The accused has the burden of proving the 
defense of lack of mental responsibility by clear and convincing 
evidence.
    ``(c) Findings Following Assertion of Defense.--Whenever lack of 
mental responsibility of the accused with respect to an offense is 
properly at issue, 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) not guilty only by reason of lack of mental 
        responsibility.
    ``(d) Majority Vote Required for Finding.--The accused shall be 
found not guilty only by reason of lack of mental responsibility under 
subsection (c)(3) only if a majority of the members of the commission 
at the time the vote is taken determines that the defense of lack of 
mental responsibility has been established.
``Sec. 949l. Voting and rulings
    ``(a) Vote by Secret Written Ballot.--Voting by members of a 
military commission on the findings and on the sentence shall be by 
secret written ballot.
    ``(b) Rulings.--(1) The military judge shall rule upon all 
questions of law, including the admissibility of evidence, and all 
interlocutory questions arising during the proceedings.
    ``(2) Any such ruling made by the military judge upon any question 
of law or any interlocutory question other than the factual issue of 
mental responsibility of the accused is conclusive and constitutes the 
ruling of the commission. However, the military judge may change his 
ruling at any time during the trial.
    ``(c) Instructions Prior to Vote.--Before a vote is taken of the 
findings, the military judge shall, in the presence of the accused and 
counsel, instruct the members of the commission 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 reasonable doubt;
            ``(2) that in the case being considered, if there is a 
        reasonable doubt as to the guilt of the accused, the doubt must 
        be resolved in favor of the accused and he must be acquitted;
            ``(3) that, if there is reasonable doubt as to the degree 
        of guilt, the finding must be in a lower degree as to which 
        there is no reasonable doubt; and
            ``(4) that the burden of proof to establish the guilt of 
        the accused beyond a reasonable doubt is upon the United 
        States.
``Sec. 949m. Number of votes required
    ``(a) Conviction.--No person may be convicted of any offense, 
except as provided in section 949i(b) of this title or by concurrence 
of two-thirds of the members present at the time the vote is taken.
    ``(b) Sentences.--(1) Except. as provided in paragraphs (2) and 
(3), 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.
    ``(2) No person may be sentenced to suffer death, except insofar 
as--
            ``(A) death has been expressly authorized under this Act 
        for an offense of which the accused has been found guilty;
            ``(B) the charges referred to the commission expressly 
        sought the penalty of death;
            ``(C) the accused was convicted of the offense by the 
        concurrence of all the members of the military commission 
        present at the time the vote is taken; and
            ``(D) all members of the military commission present at the 
        time the vote was taken concurred in the sentence of death.
    ``(3) No person may be sentenced to life imprisonment or to 
confinement for more than 10 years, except by the concurrence of three-
fourths of the members 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 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 5 members), and 
the military commission may be assembled and the trial held with not 
fewer than the number of members so specified. In such a case, the 
convening authority shall make a detailed written statement, to be 
appended to the record, stating why a greater number of members were 
not reasonably available.
``Sec. 949n. Military commission to announce action
    ``A military commission shall announce its findings and sentence to 
the parties as soon as determined.
``Sec. 949o. Record of trial
    ``(a) Record; Authentication.--Each military commission shall keep 
a separate, substantially 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 
that of 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 by regulation, the record of the military 
commission may contain a classified annex.
    ``(b) Complete Record Required.--A complete record of the 
proceedings and testimony shall be prepared in every military 
commission established under this chapter.
    ``(c) Provision of Copy to Accused.--A copy of the record of the 
proceedings of each military commission shall be given to the accused 
as soon as it is authenticated. Where the record contains classified 
information, or a classified annex, the accused shall receive a 
redacted version of the record. The appropriate defense counsel shall 
have access to the unredacted record, as provided by regulation.

                       ``SUBCHAPTER V--SENTENCES

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

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

``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District 
                            of Columbia Circuit and the Supreme Court 
                            of the United States.
``950h. Appellate counsel.
``950i. Execution of sentence; suspension of sentence.
``950j. Finality or proceedings, findings, and sentences.
``Sec. 950a. Error of law; lesser included offense
    ``(a) Error of Law.--A finding or sentence of a military commission 
may not be held incorrect on the ground of an error of law unless the 
error materially prejudices the substantial rights of the accused.
    ``(b) Lesser Included Offense.--Any reviewing authority with the 
power to approve or affirm a finding of guilty may approve or affirm, 
instead, so much of the finding as includes a lesser included offense.
``Sec. 950b. Review by the convening authority
    ``(a) Notice to Convening Authority of Findings and Sentence.--The 
findings and sentence of a military commission under this chapter shall 
be reported in writing promptly to the convening authority after the 
announcement of the sentence.
    ``(b) Submittal of Matters by Accused to Convening Authority.--(1) 
The accused may submit to the convening authority matters for 
consideration by the convening authority with respect to the findings 
and the sentence of the military commission under this chapter.
    ``(2)(A) Except as provided in subparagraph (B), a submittal under 
paragraph (1) shall be made in writing within 20 days after the 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, for good cause, may 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 submission to the 
convening authority under paragraph (1). Such a waiver must 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 submission under this 
subsection shall be deemed to have expired upon the submission of such 
a waiver to the convening authority.
    ``(c) Action by the Convening Authority.--(1) The authority under 
this section 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) Action on the sentence of a military commission shall be 
taken by the convening authority.
    ``(B) Subject to regulations of the Secretary, such action 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, in his sole discretion, may approve, disapprove, commute, or 
suspend the sentence in whole or in part. The convening authority may 
not increase the sentence beyond that which is found by the commission.
    ``(3) Action on the findings of a military commission by the 
convening authority is not required. However, the convening authority, 
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, in his sole discretion, may order 
a proceeding in revision or a rehearing.
    ``(2)(A) Except as provided in subparagraph (B), a proceeding in 
revision may be ordered if--
            ``(i) there is an apparent error or omission in the record; 
        or
            ``(ii) the record shows improper or inconsistent action by 
        a 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 any 
        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;
            ``(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 he 
disapproves the findings and sentence and states the reasons for 
disapproval of the findings. If such a person disapproves the findings 
and sentence and does not order a rehearing, he shall dismiss the 
charges. A rehearing as to the findings may not be ordered where there 
is a lack of sufficient evidence in the record to support the findings. 
A rehearing as to the sentence may be ordered if the convening 
authority disapproves the sentence.
``Sec. 950c. Waiver or withdrawal of appeal
    ``(a) Waiver of Right of Review.--(1) In each case subject to 
appellate review under section 950f and 950g of this title, except a 
case in which the sentence as approved under section 950b of this title 
includes 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 by 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 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.
    ``(b) Withdrawal of Appeal.--Except in a case in which the sentence 
as approved under section 950b of this title includes death, the 
accused may withdraw an appeal at any time.
    ``(c) Effect of Waiver or Withdrawal.--A waiver of the right to 
appellate review or the withdrawal of an appeal under this section bars 
review under section 950f or 950g of this title.
``Sec. 950d. Appeal by the United States
    ``(a) Interlocutory Appeal.--(1) Except as provided in paragraph 
(2), in a trial by military commission under this chapter, the United 
States may take an interlocutory appeal to the Court of Military 
Commission Review of any order or ruling of the military judge that--
            ``(A) terminates commission proceedings 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 
commission with respect to the charge or specification.
    ``(b) Notice of Appeal.--The United States shall take an appeal of 
an order or ruling under subsection (a) by filing a notice of appeal 
with the military judge within five days after the date of such order 
or ruling.
    ``(c) Appeal.--An appeal under this section shall be forwarded by 
means prescribed under regulations of the Secretary 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) Court of Appeals.--The United States may appeal an adverse 
ruling under subsection (c) to the United States Court of Appeals for 
the District of Columbia Circuit by filing a petition for review in the 
Court of Appeals within 10 days after the date of such ruling. Review 
under this subsection shall be at the discretion of the Court of 
Appeals.
``Sec. 950e. Rehearings
    ``(a) Composition of Military Commission for Rehearing.--Each 
rehearing under this chapter shall take place before a military 
commission composed of members not members of the commission which 
first heard the case.
    ``(b) Scope of Rehearing.--(1) Upon a rehearing--
            ``(A) the accused may not be tried for any offense of which 
        he was found not guilty by the first 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) unless the sentence prescribed for the 
                offense is mandatory.
    ``(2) Upon a rehearing, if the sentence approved after the first 
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 commission.
``Sec. 950f. Review by Court of Military Commission Review
    ``(a) Court Established.--(1) The Secretary 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.
    ``(2) For the purpose of reviewing military commission decisions, 
the court may sit in panels or as a whole in accordance with rules 
prescribed by the Secretary.
    ``(b) Composition of the Court.--(1) The Secretary shall assign 
appellate military judges to a Court of Military Commission Review.
    ``(2) Each appellate military judge shall meet the qualifications 
for military judges prescribed by section 948j(b) of this Act or shall 
be a civilian with comparable qualifications.
    ``(3) 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) Right of Appeal.--The accused may appeal from the final 
decision of a military commission, and the United States may appeal as 
provided in section 950d of this title, to the Court of Military 
Commission Review in accordance with procedures prescribed under 
regulations of the Secretary.
    ``(d) Scope of Review.--In ruling on an appeal under this section, 
the Court of Military Commission Review may act only with respect to 
matters of law.
``Sec. 950g. Review by the United States Court of Appeals for the 
              District of Columbia Circuit and the Supreme Court of the 
              United States
    ``(a) In General.--(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, pursuant to Section 
1005(e)(3) of the Detainee Treatment Act of 2005.
    ``(B) The Court of Appeals shall 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 by no longer than 20 days from the earlier of when--
            ``(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 his right 
        to appeal under section 950f of this title.
    ``(b) Review by Supreme Court.--The Supreme Court of the United 
States may review by writ of certiorari the final judgment of the Court 
of Appeals pursuant to section 1257 of title 28, United States Code.
``Sec. 950h. Appellate counsel
    ``(a) Appointment.--The Secretary 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 appearing before 
military commissions under this chapter.
    ``(b) Representation of United States.--Appellate counsel may 
represent the United States in any appeal or review proceeding under 
this chapter. Appellate Government counsel may represent the United 
States before the Supreme Court in cases arising under this chapter 
when requested to do so by the Attorney General.
    ``(c) Representation of Accused.--The accused shall be represented 
by appellate military counsel before the Court of Military Commission 
Review, the United State Court of Appeals for the District of Columbia 
Circuit, or the Supreme Court, or by civilian counsel if retained by 
him.
``Sec. 950i. Execution of sentence; suspension of sentence
    ``(a) Execution of Sentence of Death Only Upon Approval by the 
President.--If the sentence of a military commission under this chapter 
extends to death, that part of the sentence providing for death may not 
be executed until approved by the President. In such a case, the 
President may commute, remit, or suspend the sentence, or any part 
thereof, as he sees fit.
    ``(b) Execution of Sentence of Death Only Upon Final Judgment of 
Legality of Proceedings.--(1) If the sentence of a military commission 
under this chapter extends to death, the sentence may not be executed 
until there is a final judgment as to the legality of the proceedings 
(and with respect to death, approval under subsection (a)).
    ``(2) A judgment as to legality of the proceedings is final for 
purposes of paragraph (1) when--
            ``(A) review is completed by the Court of Military 
        Commission Review and--
                    ``(i) the time for the accused to file a petition 
                for review by the Court of Appeals for the D.C. Circuit 
                has expired;
                    ``(ii) the accused has not filed a timely petition 
                for such review; and
                    ``(iii) the case is not otherwise under review by 
                that Court; or
            ``(B) review is completed in accordance with judgment of 
        the Court of Appeals for the D.C. Circuit and--
                    ``(i) a petition for a writ of certiorari is not 
                timely filed;
                    ``(ii) such a petition is denied by the Supreme 
                Court; or
                    ``(iii) review is otherwise completed in accordance 
                with the judgment of the Supreme Court.
    ``(c) Suspension of Sentence.--The Secretary, or the convening 
authority acting on the case (if other than the Secretary), may suspend 
the execution of any sentence or part thereof in the case, except a 
sentence of death.
``Sec. 950j. Finality of proceedings, findings, and sentences
    ``(a) Finality.--The appellate review of records of trial provided 
by this chapter, 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 are binding upon all departments, courts, 
agencies, and officers of the United States, subject only to authority 
of the President.
    ``(b) Provisions of Chapter Sole Basis for Review of Military 
Commission Procedures and Actions.--Except as otherwise provided in 
this chapter, and notwithstanding any other law (including section 2241 
of title 28, United States Code, 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 enactment of this chapter, relating to 
the prosecution, trial, or judgment of a military commission convened 
under this section, including challenges to the lawfulness of the 
procedures of military commissions under this chapter.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950p. Substantive offenses.
``950q. Principals.
``950r. Accessory after the fact.
``950s. Conviction of lesser offenses.
``950t. Attempts.
``950u. Solicitation.
``950v. Crimes triable by military commission.
``950w. Perjury and obstruction of justice.
``950x. Contempt.
``Sec. 950p. Substantive offenses generally
    ``(a) Purpose.--The following provisions codify offenses that have 
traditionally been triable by military commissions. This Act does not 
establish new crimes that did not exist before its establishment, but 
rather codifies those crimes for trial by military commission.
    ``(b) Effect.--Because these provisions are declarative of existing 
law, they do not preclude trial for crimes that occurred prior to their 
effective date.
``Sec. 950q. Principals
    ``Any person is punishable as a principal under this chapter who--
            ``(1) commits an offense punishable by this chapter, or 
        aids, abets, counsels, commands, or procures its commission;
            ``(2) causes an act to be done which if directly performed 
        by him would be punishable by this chapter; or
            ``(3) is a superior commander who, with regard to acts 
        punishable under this chapter, knew, had reason to know, or 
        should have known, that a subordinate was about to commit such 
        acts or had done so and the superior failed to take the 
        necessary and reasonable measures to prevent such acts or to 
        punish the perpetrators thereof.
``Sec. 950r. Accessory after the fact
    ``Any person subject to this chapter who, knowing that an offense 
punishable by this chapter has been committed, receives, comforts, or 
assists the offender in order to hinder or prevent his apprehension, 
trial, or punishment shall be punished as a military commission may 
direct.
``Sec. 950s. Conviction of lesser offenses
    ``An accused may be found guilty of an offense necessarily included 
in the offense charged or of an attempt to commit either the offense 
charged or an offense necessarily included therein.
``Sec. 950t. Attempts
    ``(a) In General.--Any person subject to this chapter who attempts 
to commit any offense punishable by this Act shall be punished as a 
military commission may direct.
    ``(b) Scope of Offense.--An act, done with specific intent to 
commit an offense under this chapter, amounting to more than mere 
preparation and tending, even though failing, to effect its commission, 
is an attempt to commit that offense.
    ``(c) Effect of Consummation.--Any person subject to this chapter 
may be convicted of an attempt to commit an offense although it appears 
on the trial that the offense was consummated.
``Sec. 950u. Solicitation
    ``Any person subject to this chapter who solicits or advises 
another or others to commit one or more substantive offenses triable by 
military commission 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 may direct.
``Sec. 950v. Crimes triable by military commission
    ``(a) Definitions and Construction.--(1) For purposes of this 
chapter, the term `military objective' refers to combatants and those 
objects during an armed conflict which, by their nature, location, 
purpose, or use, effectively contribute to the opposing force's war-
fighting or war-sustaining capability and whose total or partial 
destruction, capture, or neutralization would constitute a definite 
military advantage to the attacker under the circumstances at the time 
of the attack.
    ``(2) For purposes of this section only, `protected person' refers 
to any person entitled to protection under one or more of the Geneva 
Conventions, including civilians not taking an active part in 
hostilities, military personnel placed hors de combat by sickness, 
wounds, or detention, and military medical or religious personnel.
    ``(3) For purposes of this chapter, 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, provided they are not being used for military 
purposes or are not otherwise military objectives. Such property would 
include objects properly identified by one of the distinctive emblems 
of the Geneva Conventions but does not include all civilian property.
    ``(4) The intent required for offenses (1), (2), (3), (4) and (12) 
under subsection (b) precludes their applicability with regard to 
collateral damage or to death, damage, or injury incident to a lawful 
attack.
    ``(b) Offenses.--The following enumerated offenses, when committed 
in the context of and associated with armed conflict, shall be triable 
by military commission under this chapter at any time without 
limitation--
            ``(1) Murder of protected persons.--Any person who 
        intentionally kills one or more protected persons is guilty of 
        the offense of intentionally killing protected persons and 
        shall be subject to whatever punishment the commission may 
        direct, including the penalty of death.
            ``(2) Attacking civilians.--Any person 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 the commission may direct, 
        including, if death results to one or more of the victims, the 
        penalty of death.
            ``(3) Attacking civilian objects.--Any person who 
        intentionally engages in an attack upon civilian objects 
        (property that is not a military objective) shall be guilty of 
        the offense of attacking civilian objects and shall be subject 
        to whatever punishment the commission may direct.
            ``(4) Attacking protected property.--Any person 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 the commission may 
        direct.
            ``(5) Pillaging.--Any person 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 the commission may direct.
            ``(6) Denying quarter.--Any person 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 the 
        commission may direct.
            ``(7) Taking hostages.--Any person 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 the 
        commission may direct, including, if death results to one or 
        more of the victims, the penalty of death.
            ``(8) Employing poison or analogous weapons.--Any person 
        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 the 
        commission may direct, including, if death results to one or 
        more of the victims, the penalty of death.
            ``(9) Using protected persons as shields.--Any person 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 the commission may 
        direct, including, if death results to one or more of the 
        victims, the penalty of death.
            ``(10) Using protected property as shields.--Any person 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 the commission may direct.
            ``(11) Torture.--Any person who commits an act specifically 
        intended to inflict severe physical or 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 the commission may direct, 
        including, if death results to one or more of the victims, the 
        penalty of death. `Severe mental pain or suffering' has the 
        meaning provided in 18 U.S.C. 2340(2).
            ``(12) Cruel or inhuman treatment.--Any person who commits 
        an act intended to inflict severe physical or 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 the commission may direct, including, if death 
        results to one or more of the victims, the penalty of death. 
        `Severe mental pain or suffering' has the meaning provided in 
        18 U.S.C. 2340(2).
            ``(13) Intentionally causing serious bodily injury.--Any 
        person 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 the 
        commission may direct, including, if death results to one or 
        more of the victims, the penalty of death. `Serious bodily 
        injury' has the meaning provided in 18 U.S.C. 113(b)(2).
            ``(14) Mutilating or maiming.--Any person 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 the commission may direct, including, if 
        death results to one or more of the victims, the penalty of 
        death.
            ``(15) Murder in violation of the law of war.--Any person 
        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 the commission may direct, 
        including the penalty of death.
            ``(16) Destruction of property in violation of the law of 
        war.--Any person 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 
        the commission may direct.
            ``(17) Using treachery or perfidy.--Any person 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 the commission may 
        direct.
            ``(18) Improperly using a flag of truce.--Any person 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 the 
        commission may direct.
            ``(19) Improperly using a distinctive emblem.--Any person 
        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 the 
        commission may direct.
            ``(20) Intentionally mistreating a dead body.--Any person 
        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 the commission may direct.
            ``(21) Rape.--Any person 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 the commission may direct.
            ``(22) Hijacking or hazarding a vessel or aircraft.--Any 
        person subject to this chapter 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 the commission may direct, including, if death 
        results to one or more of the victims, the penalty of death.
            ``(23) Terrorism.--Any person subject to this chapter 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 the commission may 
        direct, including, if death results to one or more of the 
        victims, penalty of death.
            ``(24) Providing material support for terrorism.--Any 
        person 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 subsection 
        (b)(23) of this section), or who intentionally provides 
        material support or resources to an international terrorist 
        organization engage in hostilities against the United States, 
        knowing that such organization has engaged or engages in 
        terrorism as defined in subsection (b)(23) of this section), 
        shall be guilty of the offense of providing material support 
        for terrorism and shall be subject to whatever punishment the 
        commission may direct. The term `material support or resources' 
        has the meaning provided in 18 U.S.C. 2339A(b).
            ``(25) Wrongfully aiding the enemy.--Any person 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 
        the commission may direct.
            ``(26) Spying.--Any person 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 the 
        commission may direct, including the penalty of death.
            ``(27) Conspiracy.--Any person 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 the commission may direct, including, if 
        death results to one or more of the victims, the penalty of 
        death.
``Sec. 950w. Perjury and obstruction of justice
    ``The military commissions also may try offenses and impose 
punishments for perjury, false testimony, or obstruction of justice 
related to military commissions.
``Sec. 950x. Contempt
    ``A military commission may punish for contempt any person who uses 
any menacing word, sign, or gesture in its presence, or who disturbs 
its proceedings by any riot or disorder.''.
            (2) Tables of chapters amendments.--The tables of chapters 
        at the beginning of subtitle A and 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:

                  ``CHAPTER 47A--MILITARY COMMISSIONS

                   ``SUBCHAPTER I--GENERAL PROVISIONS

             ``SUBCHAPTER II--COMPOSITION OF COURTS-MARTIAL

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

                       ``SUBCHAPTER V--SENTENCES

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

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

    (b) Submittal of Procedures to Congress.--
            (1) Submittal of procedures.--Not later than 90 days after 
        the date of the enactment of this Act, the Secretary shall 
        submit to the Committees on Armed Forces 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)).
            (2) Submittal of modifications.--Not later than 60 days 
        before the date on which any proposed modification of the 
        procedures described in paragraph (1) shall go into effect, the 
        Secretary shall submit to the committees of Congress referred 
        to in that paragraph a report describing such modifications.

SEC. 5. JUDICIAL REVIEW.

    Section 2241 of title 28, United States Code, is amended by 
replacing subsection (e) with the following:
    ``(e) 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 enactment of this Act, 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:
            ``(1) Combatant status review tribunals. 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 Department of Defense may conduct a 
        new Combatant Status Review Tribunal.
            ``(2) Military commissions.--Review shall be had only of 
        final judgments of military commissions as provided for 
        pursuant to section 247 of the Military Commissions Act of 
        2006.
            ``(3) Information considered.--The court may consider 
        classified information submitted in camera and ex parte in 
        making any determination under this section.''.

SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.

    (a) In General.--Satisfaction of the prohibitions against cruel, 
inhuman, and degrading treatment set forth in Section 1003 of the 
Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119 
Stat. 2739; 42 U.S.C. 2000dd) shall fully satisfy United States 
obligations with respect to the standards for detention and treatment 
established by section 1 of common Article 3 of the Geneva Conventions, 
with the exception of the obligations imposed by subsections 1 (b) and 
1 (d) of such Article.
    (b) Rights Not Judicially Enforceable.--
            (1) In general.--No person in any habeas action or any 
        other action may invoke the Geneva Conventions or any protocols 
        thereto as a source of rights; whether directly or indirectly, 
        for any purpose in any court of the United States or its States 
        or territories.
            (2) Construction.--Paragraph (1) may not be construed to 
        affect the obligations of the United States under the Geneva 
        Conventions.
    (c) Geneva Conventions Defined.--In this section, the term ``Geneva 
Conventions'' means the international conventions signed at Geneva on 
August 12, 1949, including common Article 3.

SEC. 7. WAR CRIMES ACT AMENDMENT.

    Section 2441 of title 18, United States Code is amended by 
replacing subsection (c)(3) with the following:
    ``(3) which constitutes any of the following serious violations of 
common Article 3 of the international conventions signed at Geneva 12 
August 1949, when committed in the context of and in association with 
an armed conflict not of an international character--
            ``(A) Torture.--Any person who commits, or conspires or 
        attempts to commit, an act specifically intended to inflict 
        severe physical or 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 a violation of this subsection. 
        `Severe mental pain or suffering' has the meaning provided in 
        18 U.S.C. 2340(2).
            ``(B) Cruel or inhuman treatment.--Any person who commits, 
        or conspires or attempts to commit, an act intended to inflict 
        severe physical or 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 a violation of this 
        subsection. `Severe mental pain or suffering' has the meaning 
        provided in 18 U.S.C. 2340(2).
            ``(C) Performing biological experiments.--Any person who 
        subjects, or conspires or attempts to subject, one or more 
        persons within his custody or physical control to biological 
        experiments without a legitimate medical purpose and in so 
        doing endangers the body or health of such person or persons 
        shall be guilty of a violation of this subsection.
            ``(D) Murder.--Any 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, 
        shall be guilty of a violation of this subsection. The intent 
        required for this offense precludes its applicability with 
        regard to collateral damage or to death, damage, or injury 
        incident to a lawful attack.
            ``(E) Mutilation or maiming.--Any 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, shall be guilty of a violation of this 
        subsection. The intent required for this offense precludes its 
        applicability with regard to collateral damage or to death, 
        damage, or injury incident to a lawful attack.
            ``(F) Intentionally causing great suffering or serious 
        injury.--Any person who intentionally causes, or conspires or 
        attempts to cause, serious, bodily injury 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, shall be guilty of a violation of this 
        subsection. The intent required for this offense precludes its 
        applicability with regard to collateral damage or to death, 
        damage, or injury incident to a lawful attack. `Serious bodily 
        injury' has the meaning provided in 18 U.S.C. 113(b)(2).
            ``(G) Rape.--Any 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 shall be guilty 
        of a violation of this subsection.
            ``(H) Sexual assault or abuse.--Any person who forcibly or 
        with coercion or threat of force engages, or conspires or 
        attempts to engage, in sexual contact with one or more persons, 
        or causes, or conspires or attempts to cause, one or more 
        persons to engage in sexual contact, shall be guilty of a 
        violation of this subsection. For purposes of this offense, 
        `sexual contact' has the meaning provided in 18 U.S.C. 2246(3).
            ``(I) Taking hostages.--Any person 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 a violation of this 
        subsection. Any person who attempts to engage or conspires to 
        engage in this offense shall also be guilty under this 
        subsection.''.

SEC. 8. CONFORMING AMENDMENTS.

    (a) Section 1004(b) of the Detainee Treatment Act of 2005 (10 
U.S.C. 801 note). is amended to conform with this Act as follows--
            (1) by replacing ``may provide'' with ``shall provide'';
            (2) by adding ``or investigation'' after ``criminal 
        prosecution''; and
            (3) by adding ``whether before United States courts or 
        agencies, foreign courts or agencies, or international courts 
        or agencies,'' after ``described in that subsection'';
    (b) Section 1005 of the Detainee Treatment Act of 2005 (10 U.S.C. 
801 note) is amended to conform with this Act as follows--
            (1) by striking subsection (e)(3)(B) and renumbering 
        subsections (e)(3)(C) and (e)(3)(D) as subsections (e)(3)(B) 
        and (e)(3)(C), respectively;
            (2) in subsection (e)(3)(A), by striking ``pursuant to 
        Military Commission Order No. 1, August 31, 2005 (or any 
        successor military order)'' and inserting ``by a military 
        commission under chapter 47a of title 10'';
            (3) in former subsection (e)(3)(C)(i), by striking 
        ``pursuant to the military order'' and inserting ``by a 
        military commission'';
            (4) in former subsection (e)(3)(C)(ii), by striking 
        ``pursuant to such military order'' and inserting ``by such a 
        military commission'';
            (5) in former subsection (e)(3)(D)(i) by striking 
        ``specified in the military order'' and inserting ``specified 
        for a military commission'';
            (6) and in former subsection (e)(3)(C)(i), by striking ``at 
        Guantanamo Bay, Cuba''; and
            (7) in former subsection (e)(2)(b)(i) by replacing ``the 
        Department of Defense at Guantanamo Bay, Cuba'' with ``United 
        States''.
    (c) Section 802 of title 10, United States Code, is amended to 
conform with this Act by adding, ``(a)(13) Lawful enemy combatants who 
violate the law of war.''
    (d) Section 821 of title 10, United States Code, is amended to 
conform with this Act by striking the phrase ``by statute or the law of 
war''.
    (e) Section 836 of title 10, United States Code, is amended to 
conform with this Act as follows--in subsection (a), by replacing 
``military commissions and other military tribunals'' with ``and other 
military tribunals (excluding military commissions)''.

SEC. 9. RETROACTIVE APPLICATION.

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

SEC. 10. SEVERABILITY.

    If any provision of this Act, or the application of a provision to 
any person or circumstance, is held to be unconstitutional, the 
remainder of this Act, and the application of the provisions to any 
other person or circumstance, shall not be affected thereby.
                                                       Calendar No. 595

109th CONGRESS

  2d Session

                                S. 3861

_______________________________________________________________________

                                 A BILL

 To facilitate bringing to justice terrorists and other unlawful enemy 
 combatants through full and fair trials by military commissions, and 
                          for other purposes.

_______________________________________________________________________

                           September 8, 2006

            Read the second time and placed on the calendar