1.
This Act may be cited as the Bringing Terrorists to Justice Act of 2006
.
2.
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.
3.
Authorization for military commissions
(a)
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)
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)
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)
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)
Each such report shall be submitted in unclassified form, with classified annex, if necessary and
consistent with national security.
4.
(a)
(1)
Subtitle A of title 10, United States Code, is amended by inserting after chapter 47 the following
new chapter:
47A
I
Sec.
948a. Definitions.
948b. Military commissions generally.
948c. Persons subject to military commissions.
948d. Jurisdiction of military commissions.
948a.
In this chapter:
(1)
The term alien means an individual who is not a citizen of the United States.
(2)
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)
The term commission means a military commission established pursuant to chapter 47A of title 10, United States Code.
(4)
The term convening authority shall be the Secretary of Defense or his designee.
(5)
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)
The term Secretary means the Secretary of Defense.
(7)
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)
The term Geneva Conventions means the international conventions signed at Geneva on August 12, 1949, including common Article
3.
948b.
Military commissions generally
(a)
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)
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.
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.
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.
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.
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.
948i.
Who may serve on military commissions
(a)
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)
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)
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.
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)
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.
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)
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)
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.
948l.
Detail or employment of reporters and interpreters
(a)
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)
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)
The transcript shall be under the control of the convening authority, which is responsible for
preparing the record of the proceedings.
948m.
Number of members; excuse of members; absent and additional members
(a)
(1)
A military commission under this chapter shall, except as provided in paragraph (2), have at least
five members.
(2)
In a case in which the death penalty is sought, the military commission shall have the number of
members prescribed by section 949m(c) of this title.
(b)
No member of a military commission 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.
III
Sec.
948q. Charges and specifications.
948r. Compulsory self-incrimination prohibited; statements obtained by torture.
948s. Service of charges.
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)
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.
948r.
Compulsory self-incrimination prohibited; statements obtained by torture
(a)
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.
948s.
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.
IV
Sec.
949a. Rules.
949b. Unlawfully influencing action of military commission.
949c. Duties of trial counsel and defense counsel.
949d. Sessions.
949e. Continuances.
949f. Challenges.
949g. Oaths.
949h. Former jeopardy.
949i. Pleas of the accused.
949j. Opportunity to obtain witnesses and other evidence.
949k. Defense of lack of mental responsibility.
949l. Voting and rulings.
949m. Number of votes required.
949n. Military commission to announce action.
949o. Record of trial.
949a.
(a)
Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases
triable by military commission under this chapter shall be prescribed by
the Secretary, but may not be contrary to or inconsistent with this
chapter.
(b)
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 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.
949b.
Unlawfully influencing action of military commission
(a)
(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.
949c.
Duties of trial counsel and defense counsel
(a)
The trial counsel of a military commission shall prosecute in the name of the United States.
(b)
(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.
949d.
(a)
Sessions without presence of members
(1)
At any time after the service of charges which have been referred for trial by military commission,
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)
(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.
949e.
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.
949f.
(a)
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)
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.
949g.
(a)
(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)
Each witness before a military commission under this chapter shall be examined on oath.
(c)
As used in this section, “oath” includes an affirmation.
949h.
(a)
No person may, without his consent, be tried by a commission a second time for the same offense.
(b)
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.
949i.
(a)
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.
949j.
Opportunity to obtain witnesses and other evidence
(a)
(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.
949k.
Defense of lack of mental responsibility
(a)
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)
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.
949l.
(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)
(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.
949m.
(a)
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)
(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.
949n.
Military commission to announce action
A military commission shall announce its findings and sentence to the parties as soon as
determined.
949o.
(a)
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)
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.
V
Sec.
949s. Cruel or unusual punishments prohibited.
949t. Maximum limits.
949u. Execution of confinement.
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.
949t.
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.
949u.
(a)
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.
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.
950a.
Error of law; lesser included offense
(a)
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)
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.
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.
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)
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.
950d.
Appeal by the United States
(a)
(1)
Except as provided in paragraph (2), in a trial by military commission under this chapter, the
United States may take an interlocutory appeal to the Court of Military
Commission Review of any order or ruling of the military judge that—
(A)
terminates 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)
The United States shall take an appeal of an order or ruling under subsection (a) by filing a
notice of appeal with the military judge within five days after the date
of such order or ruling.
(c)
An appeal under this section shall be forwarded by means 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)
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.
950e.
(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)
(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.
950f.
Review by Court of Military Commission Review
(a)
(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)
(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)
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)
In ruling on an appeal under this section, the Court of Military Commission Review may act only
with respect to matters of law.
950g.
Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme
Court of the United States
(a)
(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)
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.
950h.
(a)
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.
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)
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.
950j.
Finality of proceedings, findings, and sentences
(a)
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.
VII
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.
950p.
Substantive offenses generally
(a)
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)
Because these provisions are declarative of existing law, they do not preclude trial for crimes
that occurred prior to their effective date.
950q.
Any person is punishable as a principal under this chapter who—
(1)
commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its
commission;
(2)
causes an act to be done which if directly performed by him would be punishable by this chapter; or
(3)
is a superior commander who, with regard to acts punishable under this chapter, knew, had reason to
know, or should have known, that a subordinate was about to commit such
acts or had done so and the superior failed to take the necessary and
reasonable measures to prevent such acts or to punish the perpetrators
thereof.
950r.
Any person subject to this chapter who, knowing that an offense punishable by this chapter has been
committed, receives, comforts, or assists the offender in order to hinder
or prevent his apprehension, trial, or punishment shall be punished as a
military commission may direct.
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.
950t.
(a)
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)
An act, done with specific intent to commit an offense under this chapter, amounting to more than
mere preparation and tending, even though failing, to effect its
commission, is an attempt to commit that offense.
(c)
Any person subject to this chapter may be convicted of an attempt to commit an offense although it
appears on the trial that the offense was consummated.
950u.
Any person subject to this chapter who solicits or advises another or others to commit one or more
substantive offenses triable by military commission 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.
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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)
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.
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.
950x.
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)
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.
5.
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)
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)
The court may consider classified information submitted in camera and ex parte in making any
determination under this section.
.
6.
Satisfaction of treaty obligations
(a)
Satisfaction of the prohibitions against cruel, inhuman, and degrading treatment set forth in
Section 1003 of the Detainee Treatment Act of 2005 (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)
No person in any habeas action or any other action may invoke the Geneva Conventions or any
protocols thereto as a source of rights; whether directly or indirectly,
for any purpose in any court of the United States or its States or
territories.
(2)
Paragraph (1) may not be construed to affect the obligations of the United States under the Geneva
Conventions.
(c)
Geneva conventions defined
In this section, the term Geneva Conventions means the international conventions signed at Geneva on August 12, 1949, including common Article
3.
7.
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)
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)
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)
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)
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)
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)
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.
.
8.
(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)
.
9.
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.
10.
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.
September 8, 2006
Read the second time and placed on the calendar