<enum>I</enum><header>Military Commissions</header> <section id="idEA47CD02CE5844B888AA6507BE449D30"><enum>101.</enum><header>Short title</header><text display-inline="no-display-inline">This title may be cited as the <quote><short-title>Military Commissions Act of 2006</short-title></quote>.</text> </section><section id="ID2211ab616fc54a40a53eee32eeeb66ac"><enum>102.</enum><header>Findings</header><text display-inline="no-display-inline">Congress makes the following findings:</text> <paragraph id="ID42dc5c9a3881467eada538695df7b7b2"><enum>(1)</enum><text>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. 19 al Qaeda operatives hijacked 4 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.</text> </paragraph><paragraph id="IDd2e26ef8704e4e78bff79db4b6967602"><enum>(2)</enum><text>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 <quote>the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States</quote> and authorized the President <quote>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.</quote>.</text> </paragraph><paragraph id="ID61675fbf648f431e8933d870d8db7715"><enum>(3)</enum><text>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), <quote>[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.</quote>.</text> </paragraph><paragraph id="ID370cbff651b7464f87545b11a6a018a3"><enum>(4)</enum><text>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 <quote>Detention, Treatment, and Trial of Certain Noncitizens in the War Against Terrorism.</quote> 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.</text> </paragraph><paragraph id="IDb6c1e876fe1b40cb9fbaf3f403b14bfa"><enum>(5)</enum><text>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 title, 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 title 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.</text> </paragraph><paragraph id="IDeb717639264946a582e44e86196bfc4a"><enum>(6)</enum><text>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.</text> </paragraph><paragraph id="IDef715f76dd3248adb8726d4b89786272"><enum>(7)</enum><text>Many procedures for courts-martial would not be practicable in trying the unlawful enemy combatants for whom this title provides for trial by military commission. For instance, court-martial proceedings would in certain circumstances—</text> <subparagraph id="ID6070e919e95743dc82cd8525bd9283ea"><enum>(A)</enum><text>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;</text> </subparagraph><subparagraph id="IDa4b5a2101478482ca26cf5bb1b17869c"><enum>(B)</enum><text>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;</text> </subparagraph><subparagraph id="ID5d09761a85dc45cd97a91345776e28c4"><enum>(C)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="IDde6e4112e3ed4debbf52d0069609ea99"><enum>(8)</enum><text>The exclusive judicial review for which this title, 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—</text> <subparagraph id="ID26f8f0b38a0344c8bda6adee069e2767"><enum>(A)</enum><text>the circumstances of the conflicts between the United States and international terrorist organizations; and</text> </subparagraph><subparagraph id="ID9b3fdb98610a4bcfa420d958693ab39c"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="ID39b3454a2bd0434ba0277ce7005eaa09"><enum>(9)</enum><text>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 title 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.</text> </paragraph></section><section id="IDacfd3f46008d4fc3bbdb1bea8c9c5dd4"><enum>103.</enum><header>Authorization for military commissions</header> <subsection id="IDbbcfbd7c2d5844e898a5001d97715fdf"><enum>(a)</enum><header>In general</header><text>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 104 of this Act (chapter 47A of title 10).</text> </subsection><subsection id="ID537826c7370c47b1983709bae1cc98d3"><enum>(b)</enum><header>Construction</header><text>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.</text> </subsection><subsection id="IDc1aab7ab86d54b719bd8adc79d9f05e6"><enum>(c)</enum><header>Scope of punishment authority</header><text>A military commission established pursuant to subsection (a) shall have authority to impose upon any person found guilty after a proceeding under this title 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 title, 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.</text> </subsection><subsection id="ID481f7655dd2e446cab1cb2597b0403a8"><enum>(d)</enum><header>Execution of punishment</header><text>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.</text> </subsection><subsection id="ID3d0435eacef147fcb3f816beeb27fb69"><enum>(e)</enum><header>Annual report on trials by military commission</header> <paragraph id="IDb8dd8cc1b41b402dbfb357592c5f0470"><enum>(1)</enum><header>Annual report required</header><text>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.</text> </paragraph><paragraph id="ID9a65c2f0d35a4abdb712b8cdd26226e8"><enum>(2)</enum><header>Form</header><text>Each such report shall be submitted in unclassified form, with classified annex, if necessary and consistent with national security.</text> </paragraph></subsection></section><section id="IDde481442c2c647aa99a04b03281bf1e2"><enum>104.</enum><header>Military commissions</header> <subsection id="ID22f18805eafd40f6948f72698afb6254"><enum>(a)</enum><header>Military commissions</header> <paragraph id="ID8cc20de039304c509043896801331d9e"><enum>(1)</enum><text>In general.—Subtitle A of title 10, United States Code, is amended by inserting after chapter 47 the following new chapter:</text> <quoted-block display-inline="no-display-inline" id="id6E118529FCBC4B6D8596AB847573C339" style="USC"> <chapter id="id3FAEADEF4B98442CBFE2251E97573461"><enum>47A</enum><header>Military commissions</header> <subchapter id="id98B65AAAE5724E048E35461119708435"><enum>I</enum><header>General provisions</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="ID8910d25bcbdd48cda05fe2cb1a6e38b7" level="section">948a. Definitions.</toc-entry> <toc-entry idref="IDd9a75f43f57d4332ac8d11d50eec2356" level="section">948b. Military commissions generally.</toc-entry> <toc-entry idref="IDe2ac7384a54d4b5d82a298f623aa3d5a" level="section">948c. Persons subject to military commissions.</toc-entry> <toc-entry idref="ID76e4b04845ba4f369e524c23520b9736" level="section">948d. Jurisdiction of military commissions.</toc-entry> </toc> <section id="ID8910d25bcbdd48cda05fe2cb1a6e38b7"><enum>948a.</enum><header>Definitions </header><text display-inline="no-display-inline">In this chapter:</text> <paragraph id="ID7f64c0b850ce4d41aef23acd62c1a281"><enum>(1)</enum><header>Alien</header><text>The term <term>alien</term> means an individual who is not a citizen of the United States.</text> </paragraph><paragraph id="IDf0a83f21d2b34b81980246e9cc1590e3"><enum>(2)</enum><header>Classified information</header><text>The term <term>classified information</term> means the following—</text> <subparagraph id="ID8388c01df67749929b13db3c3406623a"><enum>(A)</enum><text>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.</text> </subparagraph><subparagraph id="ID4f768dfaa8e241da9f214d8dca9d90a7"><enum>(B)</enum><text>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)).</text> </subparagraph></paragraph><paragraph id="ID5a1dde0b53f84d5a8edc083edaf4d88c"><enum>(3)</enum><header>Commission</header><text>The term <term>commission</term> means a military commission established pursuant to this chapter.</text> </paragraph><paragraph id="ID467f1105d21a445d8c22bdbb9e60a2aa"><enum>(4)</enum><header>Convening authority</header><text>The term <term>convening authority</term> shall be the Secretary of Defense or his designee.</text> </paragraph><paragraph id="ID1b282297e7314a1ba9c07dfdaecbbe7c"><enum>(5)</enum><header>Lawful enemy combatant</header><text>The term <term>lawful enemy combatant</term> 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—</text> <subparagraph id="idA18635677F3D48E399944A33000DE778"><enum>(A)</enum><text>a member of the regular forces of a State party engaged in hostilities against the United States or its cobelligerents;</text> </subparagraph><subparagraph id="id87B3D6CC5D4E4761A9A3FDF18E117ECF"><enum>(B)</enum><text>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</text> </subparagraph><subparagraph id="id85E16E1E91714DC6A1C22A1C07996CA4"><enum>(C)</enum><text>a member of a regular armed forces who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.</text> </subparagraph></paragraph><paragraph id="ID5db0a7acd7a44e1098a619d62b76807f"><enum>(6)</enum><header>Secretary</header><text>The term <term>Secretary</term> means the Secretary of Defense.</text> </paragraph><paragraph id="ID80fbcc575150449ba50ac433c4eb8913"><enum>(7)</enum><header>Unlawful enemy combatant</header><text>The term <term>unlawful enemy combatant</term> means an individual determined by or under the authority of the President or the Secretary of Defense—</text> <subparagraph id="ID716f4acc3fd94d0c8147ab0350609d5b"><enum>(A)</enum><text>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 cobelligerents in violation of the law of war;</text> </subparagraph><subparagraph id="ID31d6d14468714df0b28867e1ffeb6442"><enum>(B)</enum><text>to have committed a hostile act in aid of such a force or organization so engaged; or</text> </subparagraph><subparagraph id="ID6e9346144ce54d8fbd017db3095c3a74"><enum>(C)</enum><text>to have supported hostilities in aid of such a force or organization so engaged.</text> </subparagraph><continuation-text continuation-text-level="paragraph">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 <term>protected person</term> 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.</continuation-text></paragraph><paragraph id="ID62c4fc750a384f7f810203a52b73d8ea"><enum>(8)</enum><header>Geneva Conventions</header><text>The term <term>Geneva Conventions</term> means the international conventions signed at Geneva on August 12, 1949, including common Article 3.</text> </paragraph></section><section id="IDd9a75f43f57d4332ac8d11d50eec2356"><enum>948b.</enum><header>Military commissions generally</header> <subsection id="IDa9f04786271b45918b0dfaed234482b0"><enum>(a)</enum><header>Purpose</header><text>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.</text> </subsection><subsection id="IDd58433a9844041a2bc8cb9f2d619e8e9"><enum>(b)</enum><header>Rule of construction</header><text>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 chapter 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.</text> </subsection><subsection id="ID77aa5a6f3e5e48428b217b2bc5dcddc5"><enum>(c)</enum><text>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 cobelligerents before, on, or after September 11, 2001.</text> </subsection><subsection id="ID924ed8453d424fce8b177b3dd95303f1"><enum>(d)</enum><text>A military commission established under this chapter is a regularly constituted court, affording all the necessary <quote>judicial guarantees which are recognized as indispensable by civilized peoples</quote> for purposes of common Article 3 of the Geneva Conventions.</text> </subsection></section><section id="IDe2ac7384a54d4b5d82a298f623aa3d5a"><enum>948c.</enum><header>Persons subject to military commissions</header><text display-inline="no-display-inline">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.</text> </section><section id="ID76e4b04845ba4f369e524c23520b9736"><enum>948d.</enum><header>Jurisdiction of military commissions</header> <subsection id="ID7abbb5c3ef364dd08047fa6c91a61482"><enum>(a)</enum><text>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 this title. Courts-martial established under chapter 47 of this title shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.</text> </subsection><subsection id="IDee66539d45304e32b308fa8fe2b96368"><enum>(b)</enum><text>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 <quote>protected person</quote> 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 <term>protected person</term> 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.</text> </subsection><subsection id="IDd63bab2008bf437cb7528fbb4a62b267"><enum>(c)</enum><text>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.</text> </subsection></section></subchapter><subchapter id="idF510E0BBAD5E45ACA46980CAAB59E834"><enum>II</enum><header>Composition of military commissions</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="ID9c6d258a6aef4b04a21c39dca5ec25ae" level="section">948h. Who may convene military commissions.</toc-entry> <toc-entry idref="ID4894d3f64d064091867df16d2305bf99" level="section">948i. Who may serve on military commissions.</toc-entry> <toc-entry idref="IDfc81e5bccb8d42d2b0956e1251b080ab" level="section">948j. Military judge of a military commission.</toc-entry> <toc-entry idref="ID4f660b6d6d1a45439173cd48614a7121" level="section">948k. Detail of trial counsel and defense counsel.</toc-entry> <toc-entry idref="ID35dd74d78dbd4887bd51363398bb2787" level="section">948l. Detail or employment of reporters and interpreters.</toc-entry> <toc-entry idref="IDf4d2cf59ecf84d309e2e9d3e13811dc8" level="section">948m. Number of members; excuse of members; absent and additional members.</toc-entry> </toc> <section id="ID9c6d258a6aef4b04a21c39dca5ec25ae"><enum>948h.</enum><header>Who may convene military commissions</header> <subsection id="ID52e6ba98678a4df289011135f6eeab0e"><enum>(a)</enum><text>The Secretary may issue orders convening military commissions to try individuals under this chapter.</text> </subsection><subsection id="IDc177941a436248fd80a97d1fc1f4b864"><enum>(b)</enum><text>The Secretary may delegate his authority to convene military commissions or to promulgate any regulations under this chapter.</text> </subsection></section><section id="ID4894d3f64d064091867df16d2305bf99"><enum>948i.</enum><header>Who may serve on military commissions</header> <subsection id="ID9961a715ee5743838e99aa1964f215c5"><enum>(a)</enum><header>In general</header><text>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.</text> </subsection><subsection id="IDb94d6eead3d54b619e5dc8718f9919f7"><enum>(b)</enum><header>Detail of members</header><text>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.</text> </subsection><subsection id="ID8a0f8743e5da41e6824ecda03cf6e3c3"><enum>(c)</enum><header>Excuse of members</header><text>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.</text> </subsection></section><section id="IDfc81e5bccb8d42d2b0956e1251b080ab"><enum>948j.</enum><header>Military judge of a military commission</header> <subsection id="IDe04a5f45d25645619598732d464402d6"><enum>(a)</enum><header>Detail of a military judge</header><text>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 of duty as a military judge.</text> </subsection><subsection id="ID77b3055002fa45f083724e1680df3fa6"><enum>(b)</enum><header>Eligibility</header><text>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.</text> </subsection><subsection id="IDcf6f0c9297c347b2b44de753e379e9dd"><enum>(c)</enum><header>Ineligibility of certain individuals</header><text>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.</text> </subsection><subsection id="IDf8919dc766f245f588329c987abb0025"><enum>(d)</enum><header>Consultation with members; ineligibility to vote</header><text>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.</text> </subsection></section><section id="ID4f660b6d6d1a45439173cd48614a7121"><enum>948k.</enum><header>Detail of trial counsel and defense counsel</header> <subsection id="ID6e033b052fdc4b73bb22ccdf93759d2f"><enum>(a)</enum><header>Detail of counsel generally</header><paragraph commented="no" display-inline="yes-display-inline" id="id598591D1C48847AC9FB9C4EE377C58C0"><enum>(1)</enum><text>Trial counsel and military defense counsel shall be detailed for each commission.</text> </paragraph><paragraph id="IDb772110bf6764e7bbeaa35f838890781" indent="up1"><enum>(2)</enum><text>Assistant trial counsel and assistant and associate military defense counsel may be detailed for each commission.</text> </paragraph><paragraph id="ID0b483999b9544ff5b2efae9749294615" indent="up1"><enum>(3)</enum><text>Military defense counsel shall be detailed as soon as practicable after the swearing of charges against the person accused.</text> </paragraph><paragraph id="ID3a26656b33a445efbeaca99c19489715" indent="up1"><enum>(4)</enum><text>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.</text> </paragraph></subsection><subsection id="ID249dcd5c76a14253abd098fe3d097ac9"><enum>(b)</enum><header>Trial counsel</header><text>Subject to subsection (d), trial counsel detailed for a military commission under this chapter must be—</text> <paragraph id="IDf1e75ba563084dae9b96ffc927082dc9"><enum>(1)</enum><text>a judge advocate (as that term is defined in section 801 of this title) who is—</text> <subparagraph id="IDa88ec39c89e84d30b3b931620101538b"><enum>(A)</enum><text>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</text> </subparagraph><subparagraph id="IDc9934a597a7949568e92fc262f058bca"><enum>(B)</enum><text>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</text> </subparagraph></paragraph><paragraph id="ID847a9c1f172d400094865ae567ba661a"><enum>(2)</enum><text>a civilian who is—</text> <subparagraph id="ID7c368fcb4c664f5aa2ea783a902fd3a4"><enum>(A)</enum><text>a member of the bar of a Federal court or of the highest court of a State; and</text> </subparagraph><subparagraph id="ID8a0f57b0f9b94dce95cdc804e9a42a74"><enum>(B)</enum><text>otherwise qualified to practice before the commission pursuant to regulations prescribed by the Secretary.</text> </subparagraph></paragraph></subsection><subsection id="ID3a355b188c8c4d75869edde14b64c039"><enum>(c)</enum><header>Military defense counsel</header><text>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—</text> <paragraph id="IDc1d03c814ba841f4ab3f95d59be6226d"><enum>(1)</enum><text>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</text> </paragraph><paragraph id="ID21e442c9520345fdb541edbabfbd093b"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDa0dd9f14468d4eb683d8166890ef2017"><enum>(d)</enum><header>Ineligibility of certain individuals</header><text>No person who has acted as an investigator, military judge, or member of a military commission under this chapter may act later as trial counsel 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.</text> </subsection></section><section id="ID35dd74d78dbd4887bd51363398bb2787"><enum>948l.</enum><header>Detail or employment of reporters and interpreters</header> <subsection id="ID6d426767ddef467ba31f1a6efba1074c"><enum>(a)</enum><header>Court reporters</header><text>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.</text> </subsection><subsection id="ID47e1a3f4c215444b9b923aeb9cac3d7f"><enum>(b)</enum><header>Interpreters</header><text>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.</text> </subsection><subsection id="IDf0e6e444bd404d91a5968ddb34b25a4b"><enum>(c)</enum><header>Transcript; record</header><text>The transcript shall be under the control of the convening authority, which is responsible for preparing the record of the proceedings.</text> </subsection></section><section id="IDf4d2cf59ecf84d309e2e9d3e13811dc8"><enum>948m.</enum><header>Number of members; excuse of members; absent and additional members </header> <subsection id="ID749a33715e8f4b39af27687c7bdbb99f"><enum>(a)</enum><header>Number of members</header><paragraph commented="no" display-inline="yes-display-inline" id="idD31AC83F73A247FC90A9866896971466"><enum>(1)</enum><text>A military commission under this chapter shall, except as provided in paragraph (2), have at least 5 members.</text> </paragraph><paragraph id="id592CBBA868264308B92A12062CE3ABE6" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDd190dd89ddd0422b84662237c96e5c34"><enum>(b)</enum><header>Excuse of members</header><text>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—</text> <paragraph id="ID721d0acbb0494951994e215a6fa5233e"><enum>(1)</enum><text>as a result of challenge;</text> </paragraph><paragraph id="IDd7a257a8f65c4542a46b747ee3cf4db3"><enum>(2)</enum><text>by the military judge for physical disability or other good cause; or</text> </paragraph><paragraph id="ID1e52f5a190d3450dac96208235260638"><enum>(3)</enum><text>by order of the convening authority for good cause.</text> </paragraph></subsection><subsection id="IDc503fb5d278f4880b69bdd0a8ae1f952"><enum>(c)</enum><header>Absent and additional members</header><text>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.</text> </subsection></section></subchapter><subchapter id="idD12E9509916141C292FB1F3D886B0E97"><enum>III</enum><header>Pre-trial procedure</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="ID05e44089ab454c3483312661be03aeb3" level="section">948q. Charges and specifications.</toc-entry> <toc-entry idref="ID806f46d8cc69475aafd5e73e4dba481a" level="section">948r. Compulsory self-incrimination prohibited; statements obtained by torture.</toc-entry> <toc-entry idref="ID6f7e7930289946b699f35ceeea70432f" level="section">948s. Service of charges.</toc-entry> </toc> <section id="ID05e44089ab454c3483312661be03aeb3"><enum>948q.</enum><header>Charges and specifications</header> <subsection id="ID977b5f567a004a2e887ac9b79f98fd1f"><enum>(a)</enum><header>Charges and specifications</header><text>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—</text> <paragraph id="IDce79ec819da54e9cabb3f068372786c0"><enum>(1)</enum><text>that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and</text> </paragraph><paragraph id="ID66df0abaa86644ddbd0d4a9b3fddbb18"><enum>(2)</enum><text>that they are true in fact to the best of his knowledge and belief.</text> </paragraph></subsection><subsection id="ID4f0babb07a4241c285b556310f2bd619"><enum>(b)</enum><header>Notice to accused</header><text>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.</text> </subsection></section><section id="ID806f46d8cc69475aafd5e73e4dba481a"><enum>948r.</enum><header>Compulsory self-incrimination prohibited; statements obtained by torture </header> <subsection id="IDf4a93172615a4a3494fc8c7f1cc144ad"><enum>(a)</enum><header>In general</header><text>No person shall be required to testify against himself at a commission proceeding.</text> </subsection><subsection id="ID7dbf710bda1745e89eb39f4762d081b7"><enum>(b)</enum><header>Statements obtained by torture</header><text>A statement obtained by use of torture, as defined in section 2340 of title 18, 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.</text> </subsection><subsection id="ID541b97ab11ea4c4aae6077ff7d692615"><enum>(c)</enum><header>Statements not obtained by torture</header><text>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.</text> </subsection></section><section id="ID6f7e7930289946b699f35ceeea70432f"><enum>948s.</enum><header>Service of charges </header><text display-inline="no-display-inline">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.</text> </section></subchapter><subchapter id="id76C5991CEA0640529772B37D53DD95EF"><enum>IV</enum><header>Trial procedure</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="IDbc61950c53ff45e7ae2b975307c2c274" level="section">949a. Rules.</toc-entry> <toc-entry idref="ID89167f46143f48139c5e895503095101" level="section">949b. Unlawfully influencing action of military commission.</toc-entry> <toc-entry idref="ID5d6ab58ba50f473ca858e38aa306b9e5" level="section">949c. Duties of trial counsel and defense counsel.</toc-entry> <toc-entry idref="ID1ec8a1f02841490697583c4dac2280df" level="section">949d. Sessions.</toc-entry> <toc-entry idref="ID798aa13154244c8e978e1c6eefe44c2d" level="section">949e. Continuances.</toc-entry> <toc-entry idref="ID931df99904fd4b08b463e4a67c0900d6" level="section">949f. Challenges.</toc-entry> <toc-entry idref="ID3d2a0dc3743f4ead9cc1898ba6ed014b" level="section">949g. Oaths.</toc-entry> <toc-entry idref="IDcad217281c2e4612ad4ae7345d2cf7c4" level="section">949h. Former jeopardy.</toc-entry> <toc-entry idref="ID3eb66f97b1464055b8013fe0006d0f23" level="section">949i. Pleas of the accused.</toc-entry> <toc-entry idref="ID6ee8e4c133c1435aaeff6e5a647f141d" level="section">949j. Opportunity to obtain witnesses and other evidence.</toc-entry> <toc-entry idref="ID81d67b04f8c2424eae31dd0de142dda4" level="section">949k. Defense of lack of mental responsibility.</toc-entry> <toc-entry idref="IDf156092b9554433f92393c11e1d3c196" level="section">949l. Voting and rulings.</toc-entry> <toc-entry idref="ID332eb35ef7e14e74ab5471863e400f50" level="section">949m. Number of votes required.</toc-entry> <toc-entry idref="ID6bc9c2b20b6e467cab3d2b9cdc3cb774" level="section">949n. Military commission to announce action.</toc-entry> <toc-entry idref="ID704c8769e3674fa8add1cfd86feda73a" level="section">949o. Record of trial.</toc-entry> </toc> <section id="IDbc61950c53ff45e7ae2b975307c2c274"><enum>949a.</enum><header>Rules</header> <subsection id="ID692a8a03a4ee44f895634ea48fc65003"><enum>(a)</enum><header>Procedures</header><text>Pre-trial, 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.</text> </subsection><subsection id="IDd656c6818c78475baaef992fb57b59dd"><enum>(b)</enum><header>Rules of evidence</header><text>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.</text> </subsection><subsection id="IDa92c30def7c8408f900241a17c3e70f0"><enum>(c)</enum><header>Hearsay evidence</header><text>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.</text> </subsection><subsection commented="no" id="ID2a1a225162dc4609846ee9e6470eac44"><enum></enum><text>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.</text> </subsection></section><section id="ID89167f46143f48139c5e895503095101"><enum>949b.</enum><header>Unlawfully influencing action of military commission</header> <subsection id="ID5e9cee7991374d54b476f6edbbd0871e"><enum>(a)</enum><header>In general</header><paragraph commented="no" display-inline="yes-display-inline" id="idAAC289C684244CFB80232B23E8669642"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="idC421EA95A0AF4B32ACFB89D687EB3446" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph><paragraph id="id707D0CB94AED426C97B03BEC93D1C49E" indent="up1"><enum>(3)</enum><text>The foregoing provisions of this subsection shall not apply with respect to—</text> <subparagraph id="id4570B5C62B2248F584DA88BF63803A8E"><enum>(A)</enum><text>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</text> </subparagraph><subparagraph id="id24129D7A0E7F46C287CC97AEC9FB1AEF"><enum>(B)</enum><text>statements and instructions given in open proceedings by the military judge or counsel.</text> </subparagraph></paragraph></subsection><subsection id="IDaf81a4dd7e9042409b0d2814245dc96c"><enum>(b)</enum><header>Prohibition on consideration of actions on commission in evaluation of fitness</header><text>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—</text> <paragraph id="IDa9b3cacf5818434da6e88cdcaaf9d280"><enum>(1)</enum><text>consider or evaluate the performance of duty of any member of a military commission under this chapter; or</text> </paragraph><paragraph id="ID6fd531a34194476c9f9c7428f7f98644"><enum>(2)</enum><text>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.</text> </paragraph></subsection></section><section id="ID5d6ab58ba50f473ca858e38aa306b9e5"><enum>949c.</enum><header>Duties of trial counsel and defense counsel</header> <subsection id="ID6d30c04795e94ede936613bf0994772a"><enum>(a)</enum><header>Trial counsel</header><text>The trial counsel of a military commission shall prosecute in the name of the United States.</text> </subsection><subsection id="IDd625388b4d964c2f937edbc58012302e"><enum>(b)</enum><header>Defense counsel</header><paragraph commented="no" display-inline="yes-display-inline" id="idB42C64F258684C6D93468CBB867D63F8"><enum>(1)</enum><text>The accused shall be represented in his defense before a military commission as provided in this subsection.</text> </paragraph><paragraph id="idBEC75522230A4F1E8E2504842FDCED0E" indent="up1"><enum>(2)</enum><text>The accused shall be represented by military counsel detailed under section 948k of this title.</text> </paragraph><paragraph id="id18E7C9D1C8FE45D99E52430FC246D7F2" indent="up1"><enum>(3)</enum><text>The accused may be represented by civilian counsel if retained by him, provided that civilian counsel—</text> <subparagraph id="idCCB68E5207E04C80A39EBE3D0CE67885"><enum>(A)</enum><text>is a United States citizen;</text> </subparagraph><subparagraph id="id9188CD260C834241B1B1F24A55FE47AF"><enum>(B)</enum><text>is admitted to the practice of law in a State, district, territory, or possession of the United States, or before a Federal court;</text> </subparagraph><subparagraph id="id311CBCC738D540309226509F1592C679"><enum>(C)</enum><text>has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;</text> </subparagraph><subparagraph id="idF37C368BAD904D95BE6B988FBA8B7A47"><enum>(D)</enum><text>has been determined to be eligible for access to information classified at the level Secret or higher; and</text> </subparagraph><subparagraph id="id5173A76535564BCAB6D12E3003117CF9"><enum>(E)</enum><text>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.</text> </subparagraph><continuation-text continuation-text-level="paragraph">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.</continuation-text></paragraph><paragraph id="IDbdb5db72cacc44bca50bd3a86e28794c" indent="up1"><enum>(4)</enum><text>If the accused is represented by civilian counsel, military counsel detailed shall act as associate counsel.</text> </paragraph><paragraph id="ID8816563e741547cfbf5d9f5e52377084" indent="up1"><enum>(5)</enum><text>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.</text> </paragraph><paragraph id="IDfe57960ff9d74e6fb147936b3c040395" indent="up1"><enum>(6)</enum><text>Defense counsel may crossexamine each witness for the prosecution who testifies before the commission.</text> </paragraph></subsection></section><section id="ID1ec8a1f02841490697583c4dac2280df"><enum>949d.</enum><header>Sessions</header> <subsection id="IDe3ea2d55d8ed4d89bb846fb49791bd6a"><enum>(a)</enum><header>Sessions without presence of members</header><paragraph commented="no" display-inline="yes-display-inline" id="idEEF1229CF4014175A9F46365ECE81A07"><enum>(1)</enum><text>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—</text> <subparagraph id="ID4af86b9c6efd43f0bd9eb70d1a92e2c6" indent="up1"><enum>(A)</enum><text>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;</text> </subparagraph><subparagraph id="ID9b72d549bd9440339ffa7d1f67d8018b" indent="up1"><enum>(B)</enum><text>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;</text> </subparagraph><subparagraph id="IDeea0ed8b651546aa9b16261011053291" indent="up1"><enum>(C)</enum><text>if permitted by regulations of the Secretary, receiving the pleas of the accused; and</text> </subparagraph><subparagraph id="ID8ae9dfd86ca2443ab193aaa5b872d4cb" indent="up1"><enum>(D)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="IDe3e887ed501246b9a4fe1d078baa2419" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDa4ca39318d624c13a4381383fb33a0e9"><enum>(b)</enum><header>Proceedings in presence of accused</header><text>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.</text> </subsection><subsection id="ID116320067d6b4d4984a7c98fbf8d1a8a"><enum>(c)</enum><header>Deliberations or vote of members</header><text>When the members of the commission deliberate or vote, only the members may be present.</text> </subsection><subsection id="ID742f420abfdc453ab322596aa6c424fa"><enum>(d)</enum><header>Public proceedings</header><paragraph commented="no" display-inline="yes-display-inline" id="id7B97416EBF3E45EBAE232D42DCA0146F"><enum>(1)</enum><text>The military commission shall hold open and public proceedings.</text> </paragraph><paragraph id="IDa69b1a60b6f448f3a2e892b06c4c2aaa" indent="up1"><enum>(2)</enum><text>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—</text> <subparagraph id="ID2c1fc2675745418d83f6ce2b1a42a8e8"><enum>(A)</enum><text>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</text> </subparagraph><subparagraph id="ID97098559b17e4551a05fa0b7f1426073"><enum>(B)</enum><text>ensure the physical safety of individuals.</text> </subparagraph></paragraph></subsection><subsection id="ID22fd4bd6cfd64750a55654e3c88cfe40"><enum>(e)</enum><header>Limited exclusion of the accused for the protection of classified information</header><paragraph commented="no" display-inline="yes-display-inline" id="idC6DD1048637C406CBD4FEB510E37678C"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="IDfc2346b8086e47c1b7c561856b9a4683" indent="up1"><enum>(2)</enum><text>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—</text> <subparagraph id="IDa7abc709c5da48a8829ad3d7bebdf3f4"><enum>(A)</enum><text>the exclusion of the accused—</text> <clause id="ID3177c02c53c04a63982043712c15159a"><enum>(i)</enum><text>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</text> </clause><clause id="ID382eca8a7ca448799e9e05e04545c125"><enum>(ii)</enum><text>is necessary to ensure the physical safety of individuals; or</text> </clause><clause id="ID7a7e18c1caf54d29b76c0acfb3cd4c8f"><enum>(iii)</enum><text>is necessary to prevent disruption of the proceedings by the accused; and</text> </clause></subparagraph><subparagraph id="IDce66842408534b2eb94a77437f6f521d"><enum>(B)</enum><text>the exclusion of the accused—</text> <clause id="ID509ba06df0a945b99e2b7377ad41a442"><enum>(i)</enum><text>is no broader than necessary; and</text> </clause><clause id="IDda0ad174910b4e6097e4dddde5e22cc0"><enum>(ii)</enum><text>will not deprive the accused of a full and fair trial.</text> </clause></subparagraph></paragraph><paragraph id="ID029dec1e421349efb0d1f33f443064e0" indent="up1"><enum>(3)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idB3BAC883289D4AD08AB5C13F4295FB9E"><enum>(A)</enum><text>A finding under paragraph (2) may be based upon a presentation, including an ex parte or in camera presentation, by either trial counsel or defense counsel.</text> </subparagraph><subparagraph id="IDae6a624773af47a88d7bcf2a7a344bc2" indent="up1"><enum>(B)</enum><text>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—</text> <clause id="ID57d69d4d9240440ebc214853a6a29099"><enum>(i)</enum><text>the disclosure of such classified information to the accused could reasonably be expected to prejudice the national security; and</text> </clause><clause id="ID949580577de84e7b824e48ac10cb5279"><enum>(ii)</enum><text>such evidence has been declassified to the maximum extent possible, consistent with the requirements of national security.</text> </clause></subparagraph></paragraph><paragraph id="ID421d6571ba3f4bdfbb41c99f17b20e59" indent="up1"><enum>(4)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idB8A42929871841A8A42DDDE90F24F841"><enum>(A)</enum><text>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—</text> <clause id="ID2eec7e383d5f4771be53c937e1d3f991" indent="up1"><enum>(i)</enum><text>consideration of the evidence by the commission, without the presence of the accused, is warranted;</text> </clause><clause id="IDf5b51c3abc744a609dd9205da559750b" indent="up1"><enum>(ii)</enum><text>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</text> </clause><clause id="IDec973c47b9de4603999a78cb4c83b220" indent="up1"><enum>(iii)</enum><text>admission of the evidence would not deprive the accused of a full and fair trial.</text> </clause></subparagraph><subparagraph id="IDb104fb51be80450aa87ff1107077a8d4" indent="up1"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="ID37f259f1a80844de9e230c2478fa4185" indent="up1"><enum>(5)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idC2C2B29348EA443EAB5BFA8E41BC15FE"><enum>(A)</enum><text>Military defense counsel shall be present and able to participate in all trial proceedings, and shall be given access to all evidence admitted under paragraph (4).</text> </subparagraph><subparagraph id="IDabf5a1f4c48f40dabb423ae7ad7505f0" indent="up1"><enum>(B)</enum><text>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 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.</text> </subparagraph><subparagraph id="ID71344ba4bda2452fbb52a46b3b7f3c41" indent="up1"><enum>(C)</enum><text>Notwithstanding any other provision of law, any defense counsel who receives classified information admitted pursuant to paragraph (4) shall not be obligated to, and may not, disclose that evidence to the accused.</text> </subparagraph></paragraph></subsection><subsection id="ID84a1909e83a4497782500373c1927b73"><enum>(f)</enum><header>Admission of statements of accused</header><paragraph commented="no" display-inline="yes-display-inline" id="id1F12E6C21ABC4F0493D3400BBCD5E75C"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="IDce1bd9e382e9401a9e857da00ec1292c" indent="up1"><enum>(2)</enum><text>For purposes of this subsection, a <quote>statement</quote> 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.</text> </paragraph></subsection></section><section id="ID798aa13154244c8e978e1c6eefe44c2d"><enum>949e.</enum><header>Continuances</header><text display-inline="no-display-inline">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.</text> </section><section id="ID931df99904fd4b08b463e4a67c0900d6"><enum>949f.</enum><header>Challenges</header> <subsection id="IDb6bd39afbaa1479e96d30a64d9d332dc"><enum>(a)</enum><header>Challenges authorized</header><text>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.</text> </subsection><subsection id="IDeea96502eef945499ffe82cbfcb05062"><enum>(b)</enum><header>Peremptory challenges</header><text>Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause.</text> </subsection><subsection id="ID0f3ab68e53e94f82a4bfe335de6f2920"><enum>(c)</enum><header>Challenges against additional members</header><text>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.</text> </subsection></section><section id="ID3d2a0dc3743f4ead9cc1898ba6ed014b"><enum>949g.</enum><header> Oaths</header> <subsection id="ID600d5fdf9f4e4233bbb2024103638837"><enum>(a)</enum><header>In general</header><paragraph commented="no" display-inline="yes-display-inline" id="id8C9CB656E3504FC2968220617ADFEA4D"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID78fb7637ab4c4acb8463d66fddc14d47" indent="up1"><enum>(2)</enum><text>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—</text> <subparagraph id="IDe8d447964d4c4937bcdb3d5e0a5f9faa"><enum>(A)</enum><text>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</text> </subparagraph><subparagraph id="ID8814595e8f984fea82a72669ffd67604"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph></subsection><subsection id="ID4466e366c4b3483bafc9b030e169f6d4"><enum>(b)</enum><header>Witnesses</header><text>Each witness before a military commission under this chapter shall be examined on oath.</text> </subsection><subsection id="IDb3714c0e9e064121a25433acb283ba20"><enum>(c)</enum><header>Oath defined</header><text>As used in this section, <quote>oath</quote> includes an affirmation.</text> </subsection></section><section id="IDcad217281c2e4612ad4ae7345d2cf7c4"><enum>949h.</enum><header> Former jeopardy</header> <subsection id="ID5a1d59ebde73443cbf0dfd7bb172c1b1"><enum>(a)</enum><header>In general</header><text>No person may, without his consent, be tried by a commission a second time for the same offense.</text> </subsection><subsection id="IDf2538d8738c54b0f88b0323da85374df"><enum>(b)</enum><header>Scope of trial</header><text>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.</text> </subsection></section><section id="ID3eb66f97b1464055b8013fe0006d0f23"><enum>949i.</enum><header> Pleas of the accused</header> <subsection id="ID6182f2d675d8476ea23c2affb0d049a2"><enum>(a)</enum><header>Plea of not guilty</header><text>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.</text> </subsection><subsection id="IDeb11765f6a144fdbbeb447f6ec920455"><enum>(b)</enum><header>Finding of guilt after guilty plea</header><text>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.</text> </subsection></section><section id="ID6ee8e4c133c1435aaeff6e5a647f141d"><enum>949j.</enum><header> Opportunity to obtain witnesses and other evidence</header> <subsection id="IDceb9e29084e7438cae72538eb106f7be"><enum>(a)</enum><header>In general</header><paragraph commented="no" display-inline="yes-display-inline" id="id90B3DDD5E1B24587AEEB3DD6E52B5256"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID51d0ed8a3f084e4d8be89efdd63818ee" indent="up1"><enum>(2)</enum><text>Process issued in military commissions to compel witnesses to appear and testify and to compel the production of other evidence—</text> <subparagraph id="ID3ebe5118c078461fad2aaa17bff7201d"><enum>(A)</enum><text>shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and</text> </subparagraph><subparagraph id="ID74f287308e8d4037adae5c90cb8cfed0"><enum>(B)</enum><text>shall run to any place where the United States shall have jurisdiction thereof.</text> </subparagraph></paragraph></subsection><subsection id="IDcdbdb3d1152d4503bdc28c4f3323de3b"><enum>(b)</enum><header>Treatment of certain items</header><text>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—</text> <paragraph id="IDce1615354ffc4ae0aec2b8aca7af7415"><enum>(1)</enum><text>to delete specified items of classified information from such documents;</text> </paragraph><paragraph id="ID29359dc4f793421bb540883b3768aefc"><enum>(2)</enum><text>to substitute an unclassified summary of the information for such classified documents; or</text> </paragraph><paragraph id="ID5185c459cd8d45eaa0a924591856fd1e"><enum>(3)</enum><text>to substitute an unclassified statement admitting relevant facts that classified information would tend to prove.</text> </paragraph></subsection><subsection id="ID229a9c0e2231421f965a63a68f8ba7f0"><enum>(c)</enum><header>Disclosure of exculpatory evidence</header><paragraph commented="no" display-inline="yes-display-inline" id="id6D27B2960C7E461C9809567311742E50"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="IDd2b7a239f9574af9b5dcaf10866b0fb1" indent="up1"><enum>(2)</enum><text>Exculpatory evidence that is classified may be provided solely to defense counsel, and not the accused, after in camera review by the military judge.</text> </paragraph><paragraph id="IDd2d3bc46174e46e1837c7262063124ce" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph><paragraph id="ID6bd329412048425ca54d8761e8d4b10d" indent="up1"><enum>(4)</enum><text>Any classified exculpatory evidence that is not disclosed to the accused under this subsection—</text> <subparagraph id="IDcc15cbb956ae454ebd790c771244605e"><enum>(A)</enum><text>shall be provided to military defense counsel;</text> </subparagraph><subparagraph id="IDee393e84b6ca412f992e68ec8a17be83"><enum>(B)</enum><text>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</text> </subparagraph><subparagraph id="ID36cb6f54e2af41999c39f743c691cc87"><enum>(C)</enum><text>shall be provided to the accused in a redacted or summary form, if it is possible to do so without compromising intelligence sources, methods, activities, or other national security interests.</text> </subparagraph></paragraph><paragraph id="IDca6c968a07214df7bf78243d9901b871" indent="up1"><enum>(5)</enum><text>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.</text> </paragraph></subsection></section><section id="ID81d67b04f8c2424eae31dd0de142dda4"><enum>949k.</enum><header>Defense of lack of mental responsibility</header> <subsection id="ID4d73009f4197449c9fab9a4d58536e88"><enum>(a)</enum><header>Affirmative defense</header><text>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.</text> </subsection><subsection id="IDb6ec20abd839493eaef7c2eeb94f6e58"><enum>(b)</enum><header>Burden of proof</header><text>The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.</text> </subsection><subsection id="IDf883417b9c9243d38c54471cb6be9380"><enum>(c)</enum><header>Findings following assertion of defense</header><text>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—</text> <paragraph id="ID96dee906ec7e4f2eb3a766db19606bfe"><enum>(1)</enum><text>guilty;</text> </paragraph><paragraph id="IDec03f2f1c034469099b9edf8a2ac1f91"><enum>(2)</enum><text>not guilty; or</text> </paragraph><paragraph id="ID1d3c54817a624cc3b7e15747b258e69d"><enum>(3)</enum><text>not guilty only by reason of lack of mental responsibility.</text> </paragraph></subsection><subsection id="IDb85b8a2b3ff1423d9a1cba097c0239bc"><enum>(d)</enum><header>Majority vote required for finding</header><text>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.</text> </subsection></section><section id="IDf156092b9554433f92393c11e1d3c196"><enum>949l.</enum><header> Voting and rulings</header> <subsection id="ID263e72f1bc7345d99061b7e5d693ff1f"><enum>(a)</enum><header>Vote by secret written ballot</header><text>Voting by members of a military commission on the findings and on the sentence shall be by secret written ballot.</text> </subsection><subsection id="ID5dbdfa982a2d4ff3a8954f4ee807a2c0"><enum>(b)</enum><header>Rulings</header><paragraph commented="no" display-inline="yes-display-inline" id="idFB387C227F4B44C79EDD891FB5369E96"><enum>(1)</enum><text>The military judge shall rule upon all questions of law, including the admissibility of evidence, and all interlocutory questions arising during the proceedings.</text> </paragraph><paragraph id="ID44b5e19ba5264e86bdf364fc527e8b35" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDb8dd5e9766814c3db86e5df578712a2c"><enum>(c)</enum><header>Instructions prior to vote</header><text>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—</text> <paragraph id="ID2f3c1ec2b5384eeba83f1b7b22b3ade9"><enum>(1)</enum><text>that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;</text> </paragraph><paragraph id="ID2644f38783384a1caa52b12fc6a4163b"><enum>(2)</enum><text>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;</text> </paragraph><paragraph id="ID6cfa5a750db24ea1b97810693bbc3f8d"><enum>(3)</enum><text>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</text> </paragraph><paragraph id="ID9b03cf276c5843b29c85562c43a6e9bb"><enum>(4)</enum><text>that the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the United States.</text> </paragraph></subsection></section><section id="ID332eb35ef7e14e74ab5471863e400f50"><enum>949m.</enum><header>Number of votes required</header> <subsection id="ID8df4fe2fb9614a8f8a378d5507f222ad"><enum>(a)</enum><header>Conviction</header><text>No person may be convicted of any offense, except as provided in section 949i(b) of this title or by concurrence of <fraction>2/3</fraction> of the members present at the time the vote is taken.</text> </subsection><subsection id="ID18495054e8d74babad5b59b3be380af3"><enum>(b)</enum><header>Sentences</header><paragraph commented="no" display-inline="yes-display-inline" id="id2DAD26A22F704944B169E17D9FB7E733"><enum>(1)</enum><text>Except as provided in paragraphs (2) and (3), sentences shall be determined by a military commission by the concurrence of <fraction>2/3</fraction> of the members present at the time the vote is taken.</text> </paragraph><paragraph id="IDa41a870e88134d9ca1b4219daba75d78" indent="up1"><enum>(2)</enum><text>No person may be sentenced to suffer death, except insofar as—</text> <subparagraph id="IDbb018fab0a164ba7857083c81559ef8c"><enum>(A)</enum><text>death has been expressly authorized under this chapter for an offense of which the accused has been found guilty;</text> </subparagraph><subparagraph id="ID50d13792c29d40b0aa9a66895d9a8720"><enum>(B)</enum><text>the charges referred to the commission expressly sought the penalty of death;</text> </subparagraph><subparagraph id="IDbbc1f1bfc9ac4c1bb08ff582a971821c"><enum>(C)</enum><text>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</text> </subparagraph><subparagraph id="ID304d1df53ba145c6a87c6cb763c77618"><enum>(D)</enum><text>all members of the military commission present at the time the vote was taken concurred in the sentence of death.</text> </subparagraph></paragraph><paragraph id="IDac9223a7645849ff8334d1a93e22b5db" indent="up1"><enum>(3)</enum><text>No person may be sentenced to life imprisonment or to confinement for more than 10 years, except by the concurrence of <fraction>3/4</fraction> of the members at the time the vote is taken.</text> </paragraph></subsection><subsection id="ID235321408f9a4a6dac4489637a7263b9"><enum>(c)</enum><header>Number of members required for penalty of death</header><paragraph commented="no" display-inline="yes-display-inline" id="id8196D644E5B4425281BA2B690821A5E9"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="IDef16fbdf599640b693d969cdafb4f8ab" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection></section><section id="ID6bc9c2b20b6e467cab3d2b9cdc3cb774"><enum>949n.</enum><header> Military commission to announce action</header><text display-inline="no-display-inline">A military commission shall announce its findings and sentence to the parties as soon as determined.</text> </section><section id="ID704c8769e3674fa8add1cfd86feda73a"><enum>949o.</enum><header> Record of trial</header> <subsection id="IDf6a8fea8bac44d12a3a20e7713f1416b"><enum>(a)</enum><header>Record; authentication</header><text>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.</text> </subsection><subsection id="ID8b15af113b504732b8caf00e5e192b86"><enum>(b)</enum><header>Complete record required</header><text>A complete record of the proceedings and testimony shall be prepared in every military commission established under this chapter.</text> </subsection><subsection id="ID1d4f0863e3424710a0c281ba5fba7c34"><enum>(c)</enum><header>Provision of copy to accused</header><text>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.</text> </subsection></section></subchapter><subchapter id="id3E0D73C49FA248F090F79393AE1E9725"><enum>V</enum><header>Sentences</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="IDe13c8d4ca1e44385918c233442f9a6de" level="section">949s. Cruel or unusual punishments prohibited.</toc-entry> <toc-entry idref="IDb0efc76b5cb742458ada935b0fe8634a" level="section">949t. Maximum limits.</toc-entry> <toc-entry idref="ID17784b3cfd4342129d115b29634a2a43" level="section">949u. Execution of confinement.</toc-entry> </toc> <section id="IDe13c8d4ca1e44385918c233442f9a6de"><enum>949s.</enum><header>Cruel or unusual punishments prohibited</header><text display-inline="no-display-inline">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.</text> </section><section id="IDb0efc76b5cb742458ada935b0fe8634a"><enum>949t.</enum><header> Maximum limits</header><text display-inline="no-display-inline">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.</text> </section><section id="ID17784b3cfd4342129d115b29634a2a43"><enum>949u.</enum><header>Execution of confinement </header> <subsection id="ID603cdca56c16425baf4972cc2aa8e1b3"><enum>(a)</enum><header>In general</header><text>Under such regulations as the Secretary may prescribe, a sentence of confinement adjudged by a military commission may be carried into execution by confinement—</text> <paragraph id="ID36eb95ad25354f81a6e059d7ca1a2766"><enum>(1)</enum><text>in any place of confinement under the control of any of the armed forces; or</text> </paragraph><paragraph id="ID9d1002c63e35405eb7158a91534e02df"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="ID1a0a8771a408495faf6f1cb0d9ded13f"><enum>(b)</enum><header>Treatment during confinement by other than the armed forces</header><text>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.</text> </subsection></section></subchapter><subchapter id="id50A659DCC55D44C88A5C86D4D0C56DF9"><enum>VI</enum><header>Post-trial procedure and review of military commissions</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="ID66d0bbea734247a0bb0e83229ca8d582" level="section">950a. Error of law; lesser included offense.</toc-entry> <toc-entry idref="ID4810a22df0ad444d9c945b92566fba33" level="section">950b. Review by the convening authority.</toc-entry> <toc-entry idref="IDfeb0ae4c0e7c47f099587e680b6e058a" level="section">950c. Waiver or withdrawal of appeal.</toc-entry> <toc-entry idref="ID4a60bdb5c9634171b98558ba7117d927" level="section">950d. Appeal by the United States.</toc-entry> <toc-entry idref="IDf712cd8575a44b96b701436516bdd677" level="section">950e. Rehearings.</toc-entry> <toc-entry idref="IDb1ebd68fa9c044db85a2a9d04987632a" level="section">950f. Review by Court of Military Commission review.</toc-entry> <toc-entry idref="ID49164345f0e540be9adb1486bd506889" level="section">950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court of the United States.</toc-entry> <toc-entry idref="id05A88B5FD16041D8A0672E8BA5E985F0" level="section">950h. Appellate counsel.</toc-entry> <toc-entry idref="ID51f610e9ddde4d1d9d97442b37e16d17" level="section">950i. Execution of sentence; suspension of sentence.</toc-entry> <toc-entry idref="idA0FFE8FC081840ECA77D7E801A6750E0" level="section">950j. Finality of proceedings, findings, and sentences.</toc-entry> </toc> <section id="ID66d0bbea734247a0bb0e83229ca8d582"><enum>950a.</enum><header>Error of law; lesser included offense</header> <subsection id="ID439ef74099554204a68623597412369a"><enum>(a)</enum><header>Error of law</header><text>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.</text> </subsection><subsection id="ID7dc1206590f8428db79d43286989cd72"><enum>(b)</enum><header>Lesser included offense</header><text>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.</text> </subsection></section><section id="ID4810a22df0ad444d9c945b92566fba33"><enum>950b.</enum><header>Review by the convening authority</header> <subsection id="IDf587d26323254cfb829ad680f93d091d"><enum>(a)</enum><header>Notice to convening authority of findings and sentence</header><text>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.</text> </subsection><subsection id="ID80fe3caaa70c47078551699288b548b1"><enum>(b)</enum><header>Submittal of matters by accused to convening authority</header><paragraph commented="no" display-inline="yes-display-inline" id="idD8C5A49951614FCBB69E698A44C21890"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID889b1dc3f8f2476dae9d7b6155fdf4c4" indent="up1"><enum>(2)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="id473CA40E281E4459A0CB1CD7A1A8DAAA"><enum>(A)</enum><text>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.</text> </subparagraph><subparagraph id="IDc29e506fac304b9dac8042fb378094cb" indent="up1"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="IDd67e31673fd64eb1bb3510bc2130a5b0" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph></subsection><subsection id="IDe6163abbaba247aca7302cf8a436bd14"><enum>(c)</enum><header>Action by the convening authority</header><paragraph commented="no" display-inline="yes-display-inline" id="id3B9163A6E08C45918E615D0910E865F4"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID3215825e3c69427b8e797929e649abec" indent="up1"><enum>(2)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idD5061075BE9C4C33B3BBFD58C6942877"><enum>(A)</enum><text>Action on the sentence of a military commission shall be taken by the convening authority.</text> </subparagraph><subparagraph id="ID469bd11ac48545e0ae5f8c6d8f03f1b1" indent="up1"><enum>(B)</enum><text>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.</text> </subparagraph><subparagraph id="ID23754dc6fa014fea88b79febba81d820" indent="up1"><enum>(C)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="ID94717a9989d8487fa91d11cfe30933af" indent="up1"><enum>(3)</enum><text>Action on the findings of a military commission by the convening authority is not required. However, the convening authority, in his sole discretion, may—</text> <subparagraph id="ID1a28da7e6a894e68afb63a0058c9affc"><enum>(A)</enum><text>dismiss any charge or specification by setting aside a finding of guilty thereto; or</text> </subparagraph><subparagraph id="IDba55a2ab68814b10a1a868aed8013ed6"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="ID56c81684ebfe4d76abcea334f5271452" indent="up1"><enum>(4)</enum><text>The convening authority shall serve on the accused or on defense counsel notice of any action taken by the convening authority under this subsection.</text> </paragraph></subsection><subsection id="ID8fbbfeae30844b75a19b9149f94b78e0"><enum>(d)</enum><header>Order of revision or rehearing</header><paragraph commented="no" display-inline="yes-display-inline" id="id99AC76BFEBE24394B2AF9723062C91E0"><enum>(1)</enum><text>Subject to paragraphs (2) and (3), the convening authority, in his sole discretion, may order a proceeding in revision or a rehearing.</text> </paragraph><paragraph id="ID8a1289da67704e64ac1ebd548076cf2e" indent="up1"><enum>(2)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idBB1109D2143140029B2F988B68AFDE72"><enum>(A)</enum><text>Except as provided in subparagraph (B), a proceeding in revision may be ordered if—</text> <clause id="IDd333bf4e616e4336a94e1465c68f7edf" indent="up1"><enum>(i)</enum><text>there is an apparent error or omission in the record; or</text> </clause><clause id="ID3305661cbef3494f84d9b2c7f822628b" indent="up1"><enum>(ii)</enum><text>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.</text> </clause></subparagraph><subparagraph id="IDdfff527bec034086991ea230760fcf80" indent="up1"><enum>(B)</enum><text>In no case may a proceeding in revision—</text> <clause id="ID9dad63632b554d14972970e01eea480f"><enum>(i)</enum><text>reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;</text> </clause><clause id="ID4661185dfc4c4ca7b066be17ee38e88d"><enum>(ii)</enum><text>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; and</text> </clause><clause id="ID726c8a28438a4507bd386153e26d1787"><enum>(iii)</enum><text>increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.</text> </clause></subparagraph></paragraph><paragraph id="ID1c5fef244c884e1cb251f9847f5e7f6c" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph></subsection></section><section id="IDfeb0ae4c0e7c47f099587e680b6e058a"><enum>950c.</enum><header>Waiver or withdrawal of appeal</header> <subsection id="IDfcd1a2ea209f4d2db6dce204cfd9a468"><enum>(a)</enum><header>Waiver of right of review</header><paragraph commented="no" display-inline="yes-display-inline" id="id7C3BDBC947684BF188BF41A12E93D503"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID814610ec33a94d48829b5c1d9bd0588c" indent="up1"><enum>(2)</enum><text>A waiver under paragraph (1) shall be signed by both the accused and by a defense counsel.</text> </paragraph><paragraph id="ID55f453a0a53b4ddd978fd04d882e7935" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph></subsection><subsection id="IDdd9b8215d66e4c5b9b779da202bcbd20"><enum>(b)</enum><header>Withdrawal of appeal</header><text>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.</text> </subsection><subsection id="IDa012af2fece14a5db5c44eedf9b65127"><enum>(c)</enum><header>Effect of waiver or withdrawal</header><text>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.</text> </subsection></section><section id="ID4a60bdb5c9634171b98558ba7117d927"><enum>950d.</enum><header>Appeal by the United States</header> <subsection id="IDd79a3f1a8cba4b54bd843b08bce6b91c"><enum>(a)</enum><header>Interlocutory appeal</header><paragraph commented="no" display-inline="yes-display-inline" id="id871B8F02E489497BB418A4B3B1A66C57"><enum>(1)</enum><text>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—</text> <subparagraph id="ID01fe06768d344a16b8974de705f25674" indent="up1"><enum>(A)</enum><text>terminates commission proceedings with respect to a charge or specification;</text> </subparagraph><subparagraph id="ID2183d999390147e5bbc96bc35dddb304" indent="up1"><enum>(B)</enum><text>excludes evidence that is substantial proof of a fact material in the proceeding; or</text> </subparagraph><subparagraph id="IDf6893c5a8df34849bd573800a1b0eedf" indent="up1"><enum>(C)</enum><text>relates to a matter under subsection (d), (e), or (f) of section 949d of this title.</text> </subparagraph></paragraph><paragraph id="ID6479b2f8771d41cabc5492d288884b08" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDa63c74c8a97d47ca98977ba1a1d5deaf"><enum>(b)</enum><header>Notice of appeal</header><text>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 5 days after the date of such order or ruling.</text> </subsection><subsection id="IDe91fb31364c54f659c578f1a5e0f1c30"><enum>(c)</enum><header>Appeal</header><text>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.</text> </subsection><subsection id="ID335f0770e8144f4f86d0834448dec3de"><enum>(d)</enum><header>Court of appeals</header><text>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.</text> </subsection></section><section id="IDf712cd8575a44b96b701436516bdd677"><enum>950e.</enum><header>Rehearings</header> <subsection id="ID1abea73bbe2c46dc925e6fca8e91440d"><enum>(a)</enum><header>Composition of military commission for rehearing</header><text>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.</text> </subsection><subsection id="ID0928307b2b59480b88f3c41ec98269c8"><enum>(b)</enum><header>Scope of rehearing</header><paragraph commented="no" display-inline="yes-display-inline" id="id457A69B17B874BDAAB1C9EDF451D7F09"><enum>(1)</enum><text>Upon a rehearing—</text> <subparagraph id="IDccd3d710369848758711436f42dd83b1" indent="up1"><enum>(A)</enum><text>the accused may not be tried for any offense of which he was found not guilty by the first commission; and</text> </subparagraph><subparagraph id="ID9db3518d5d2b41a5bc85e483951a5cf1" indent="up1"><enum>(B)</enum><text>no sentence in excess of or more than the original sentence may be imposed unless—</text> <clause id="IDc6fd9441be664adbbeb168f09ce69f95"><enum>(i)</enum><text>the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings; or</text> </clause><clause id="IDc8a791fa7bdf45bf906e15f6cfecfd2d"><enum>(ii)</enum><text>unless the sentence prescribed for the offense is mandatory.</text> </clause></subparagraph></paragraph><paragraph id="ID155112147fe044b68a8bfb036eaaacd0" indent="up1"><enum>(2)</enum><text>Upon a rehearing, if the sentence approved after the first commission was in accordance with a pre-trial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications upon which the pre-trial agreement was based, or otherwise does not comply with pre-trial agreement, the sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first commission.</text> </paragraph></subsection></section><section id="IDb1ebd68fa9c044db85a2a9d04987632a"><enum>950f.</enum><header>Review by Court of Military Commission Review</header> <subsection id="ID6d068cc2fa7b4493b3b6437a5fb94b49"><enum>(a)</enum><header>Court established</header><paragraph commented="no" display-inline="yes-display-inline" id="id59F04A7C8D6742B09C0A1327C3420478"><enum>(1)</enum><text>The Secretary shall establish a Court of Military Commission Review which shall be composed of 1 or more panels, and each such panel shall be composed of not less than three appellate military judges.</text> </paragraph><paragraph id="IDc595a59baf8348f982ae964963f73397" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="ID5011978622304e5b973c58b7f607384d"><enum>(b)</enum><header>Composition of the court</header><paragraph commented="no" display-inline="yes-display-inline" id="id0B34CEB9FA08454FB425E968FB7589D2"><enum>(1)</enum><text>The Secretary shall assign appellate military judges to a Court of Military Commission Review.</text> </paragraph><paragraph id="ID0c2bffa55d274a01bc9a82256c88cb96" indent="up1"><enum>(2)</enum><text>Each appellate military judge shall meet the qualifications for military judges prescribed by section 948j(b) of this title or shall be a civilian with comparable qualifications.</text> </paragraph><paragraph id="ID41faf89f4bbf42b79137e0d05fa37da0" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph></subsection><subsection id="IDdcc09322bbee4da99a9191ae545bfbd8"><enum>(c)</enum><header>Right of appeal</header><text>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.</text> </subsection><subsection id="IDa109817702d14a71970713b3b7c133c1"><enum>(d)</enum><header>Scope of review</header><text>In ruling on an appeal under this section, the Court of Military Commission Review may act only with respect to matters of law.</text> </subsection></section><section id="ID49164345f0e540be9adb1486bd506889"><enum>950g.</enum><header>Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court of the United States</header> <subsection id="IDf178d55d3a0844efb9ed31c2cdbd7f9d"><enum>(a)</enum><header>In general</header><paragraph commented="no" display-inline="yes-display-inline" id="idB50760725F7E4367B6828FFFFF688DB4"><enum>(1)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="id73E6B2E7D5C94EC3ABA2440267438CEB"><enum>(A)</enum><text>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.</text> </subparagraph><subparagraph commented="no" display-inline="no-display-inline" id="ID0a1f72308657443582ebdb6d307fd566" indent="up2"><enum>(B)</enum><text>The Court of Appeals shall not review the final judgment until all other appeals under this chapter have been waived or exhausted.</text> </subparagraph></paragraph><paragraph id="ID047089d09789404d9c6c561e225082b7" indent="up1"><enum>(2)</enum><text>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—</text> <subparagraph id="ID179e8b3e37aa4283b229d404cec4679a"><enum>(A)</enum><text>written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or</text> </subparagraph><subparagraph id="IDde4e79e38f484220bb4807bc2587cf68"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph></subsection><subsection id="ID170ca255b2834e06a556b9f65e4f4a9f"><enum>(b)</enum><header>Review by Supreme Court</header><text>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.</text> </subsection></section><section id="id05A88B5FD16041D8A0672E8BA5E985F0"><enum>950h.</enum><header>Appellate counsel</header> <subsection id="IDe15fb66c20614e55923535f025cc1e52"><enum>(a)</enum><header>Appointment</header><text>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.</text> </subsection><subsection id="ID603a6ce19ef34a328df1f1312ed75485"><enum>(b)</enum><header>Representation of United States</header><text>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.</text> </subsection><subsection id="IDecafe8a4dff041df838916e721cdeeba"><enum>(c)</enum><header>Representation of accused</header><text>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.</text> </subsection></section><section id="ID51f610e9ddde4d1d9d97442b37e16d17"><enum>950i.</enum><header>Execution of sentence; suspension of sentence</header> <subsection id="ID31cf3db1920f456d97915f6f59fdb3c1"><enum>(a)</enum><header>Execution of sentence of death only upon approval by the President</header><text>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.</text> </subsection><subsection id="IDe02f59d7610f4ad198fb93f3ba5eb978"><enum>(b)</enum><header>Execution of sentence of death only upon final judgment of legality of proceedings</header><paragraph commented="no" display-inline="yes-display-inline" id="id8DF87886C5C34768979751C0A42E18A9"><enum>(1)</enum><text>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)).</text> </paragraph><paragraph id="id24B07212363642C8AE621A86E2F61655" indent="up1"><enum>(2)</enum><text>A judgment as to legality of the proceedings is final for purposes of paragraph (1) when—</text> <subparagraph id="idA0B7CF3870B7487489A298EFE79DD8A3"><enum>(A)</enum><text>review is completed by the Court of Military Commission Review and—</text> <clause id="idF514CFB546C34DA59D84E5033D166E40"><enum>(i)</enum><text>the time for the accused to file a petition for review by the Court of Appeals for the District of Columbia Circuit has expired;</text> </clause><clause id="idD12AC96F859741658A93535C75666BE6"><enum>(ii)</enum><text>the accused has not filed a timely petition for such review; and</text> </clause><clause id="idDF229B722A2041B18A5BD460ADBF44F4"><enum>(iii)</enum><text>the case is not otherwise under review by that Court; or</text> </clause></subparagraph><subparagraph id="id2FB58BB2E20A45BE9AAAA94DFD29F2AC"><enum>(B)</enum><text>review is completed in accordance with the judgment of the Court of Appeals for the District of Columbia Circuit and—</text> <clause id="id07FE38B7063548AB88D0E8120ACDD3C5"><enum>(i)</enum><text>a petition for a writ of certiorari is not timely filed;</text> </clause><clause id="idB1A4F5EA9CD84C72920B865F376D0E1A"><enum>(ii)</enum><text>such a petition is denied by the Supreme Court; or</text> </clause><clause id="idF09920215A934C89A474C1DFBBF58171"><enum>(iii)</enum><text>review is otherwise completed in accordance with the judgment of the Supreme Court.</text> </clause></subparagraph></paragraph></subsection><subsection id="idDD455A957D4642299694E8FA223B8DAF"><enum>(c)</enum><header>Suspension of sentences</header><text>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.</text> </subsection></section><section id="idA0FFE8FC081840ECA77D7E801A6750E0"><enum>950j.</enum><header>Finality of proceedings, findings, and sentences</header> <subsection id="ID6a190314f48645989da8e8865100962a"><enum>(a)</enum><header>Finality</header><text>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 the authority of the President.</text> </subsection><subsection id="ID2ec7dde5fa1e4ebdb68e775a11ffecc6"><enum>(b)</enum><header>Provisions of chapter sole basis for review of military commission procedures and actions</header><text>Except as otherwise provided in this chapter, and notwithstanding any other law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of 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.</text> </subsection></section></subchapter><subchapter id="id4F99047E4FFD48DBB2EE82F18D4E01AD"><enum>VII</enum><header>Punitive matters</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="IDbc2a49012af64f11b3f06a6c5106e9b9" level="section">950p. Substantive offenses generally.</toc-entry> <toc-entry idref="IDcd106b401b1b44209ebb56643afb6085" level="section">950q. Principals.</toc-entry> <toc-entry idref="ID587b93e8277641a4a0bbd784c3065fb6" level="section">950r. Accessory after the fact.</toc-entry> <toc-entry idref="IDa9f6729339b24faf924615d1681e0dc3" level="section">950s. Conviction of lesser offenses.</toc-entry> <toc-entry idref="IDf96d02c1caa74ff3ac3900e010e93180" level="section">950t. Attempts.</toc-entry> <toc-entry idref="ID942566e88ce64b1d8220e0bd621cdce7" level="section">950u. Solicitation.</toc-entry> <toc-entry idref="ID89544c33cce04d159ee86a65f53e5df7" level="section">950v. Crimes triable by military commission.</toc-entry> <toc-entry idref="IDd339330332064dac95782489122c75ac" level="section">950w. Perjury and obstruction of justice.</toc-entry> <toc-entry idref="IDe89a2c3925274f90b7d188b17f5dbd33" level="section">950x. Contempt.</toc-entry> </toc> <section id="IDbc2a49012af64f11b3f06a6c5106e9b9"><enum>950p.</enum><header>Substantive offenses generally</header> <subsection id="ID05fbeb8248cf4ef78f6f28606c94bc8c"><enum>(a)</enum><header>Purpose</header><text>The following provisions codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its establishment, but rather codifies those crimes for trial by military commission.</text> </subsection><subsection id="ID84cf4f8ef49c45179903a721565b9a74"><enum>(b)</enum><header>Effect</header><text>Because these provisions are declarative of existing law, they do not preclude trial for crimes that occurred prior to their effective date.</text> </subsection></section><section id="IDcd106b401b1b44209ebb56643afb6085"><enum>950q.</enum><header>Principals</header><text display-inline="no-display-inline">Any person is punishable as a principal under this chapter who—</text> <paragraph id="ID24fbf50e4cd94260a6bef50a7ad88f93"><enum>(1)</enum><text>commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;</text> </paragraph><paragraph id="idB877C80F94FF406A98FFC0BA2C9FB1A0"><enum>(2)</enum><text>causes an act to be done which if directly performed by him would be punishable by this chapter; or</text> </paragraph><paragraph id="ID907549b4057e4a9caefadbf70f1b4950"><enum>(3)</enum><text>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.</text> </paragraph></section><section id="ID587b93e8277641a4a0bbd784c3065fb6"><enum>950r.</enum><header>Accessory after the fact</header><text display-inline="no-display-inline">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.</text> </section><section id="IDa9f6729339b24faf924615d1681e0dc3"><enum>950s.</enum><header>Conviction of lesser offenses</header><text display-inline="no-display-inline">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.</text> </section><section id="IDf96d02c1caa74ff3ac3900e010e93180"><enum>950t.</enum><header>Attempts</header> <subsection id="ID5658bc2dbd124cfebadc316513849691"><enum>(a)</enum><header>In general</header><text>Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a military commission may direct.</text> </subsection><subsection id="ID50e2091a53b34422981406a4ba298c59"><enum>(b)</enum><header>Scope of offense</header><text>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.</text> </subsection><subsection id="ID57945886923b4d3c86533ef97b714c76"><enum>(c)</enum><header>Effect of consummation</header><text>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.</text> </subsection></section><section id="ID942566e88ce64b1d8220e0bd621cdce7"><enum>950u.</enum><header>Solicitation</header><text display-inline="no-display-inline">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.</text> </section><section id="ID89544c33cce04d159ee86a65f53e5df7"><enum>950v.</enum><header>Crimes triable by military commission</header> <subsection id="ID751690081b5c4a7191d88f06785b5bee"><enum>(a)</enum><header>Definitions and construction</header><paragraph commented="no" display-inline="yes-display-inline" id="id6464954E4D1E4C4FAD3351DC48E04540"><enum>(1)</enum><text>For purposes of this chapter, the term <term>military objective</term> 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.</text> </paragraph><paragraph id="idBB82DFEBAF334854A8C9D5BDD3E8B5A0" indent="up1"><enum>(2)</enum><text>For purposes of this section only, <term>protected person</term> 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.</text> </paragraph><paragraph id="idFDF92D0439854BD587C9B6638A1314B5" indent="up1"><enum>(3)</enum><text>For purposes of this chapter, the term <term>protected property</term> 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.</text> </paragraph><paragraph id="id2D71ED2DABF7486B85E2C19389582A16" indent="up1"><enum>(4)</enum><text>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.</text> </paragraph></subsection><subsection id="ID46c94ab8cbf940b7b18e1ab7c02d9afb"><enum>(b)</enum><header>Offenses</header><text>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:</text> <paragraph id="ID86e6316c92f349159ccd39ff22862158"><enum>(1)</enum><header>Murder of protected persons</header><text>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.</text> </paragraph><paragraph id="ID205f4e96897e4d42ad4a40d02a17f3a7"><enum>(2)</enum><header>Attacking civilians</header><text>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.</text> </paragraph><paragraph id="ID32b1b69192444fccb142be8a2be39174"><enum>(3)</enum><header>Attacking civilian objects</header><text>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.</text> </paragraph><paragraph id="ID075de61be8a7445da16df1e726f3fcdf"><enum>(4)</enum><header>Attacking protected property</header><text>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.</text> </paragraph><paragraph id="IDe3ff690d87a54309957e8fa6b66bd644"><enum>(5)</enum><header>Pillaging</header><text>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.</text> </paragraph><paragraph id="ID44a610030bf84fb4949ed113377ba4f0"><enum>(6)</enum><header>Denying quarter</header><text>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.</text> </paragraph><paragraph id="ID64c1f8ea40804b1db6030f91bc826d73"><enum>(7)</enum><header>Taking hostages</header><text>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.</text> </paragraph><paragraph id="IDe049eae047af493493663ad11e465ea4"><enum>(8)</enum><header>Employing poison or analogous weapons</header><text>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.</text> </paragraph><paragraph id="ID47b4faebc12e4564b0987cab259639fe"><enum>(9)</enum><header>Using protected persons as shields</header><text>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.</text> </paragraph><paragraph id="ID0de43b97c0cb4ed1b3f199be9f581f22"><enum>(10)</enum><header>Using protected property as shields</header><text>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.</text> </paragraph><paragraph id="IDc238e5dd914741778afe03b55cca79f6"><enum>(11)</enum><header>Torture</header><text>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. The term <term>severe mental pain or suffering</term> has the meaning provided in paragraph (2) of section 2340 of title 18.</text> </paragraph><paragraph id="IDf866d9431a3a4ec1ab08471a0f857732"><enum>(12)</enum><header>Cruel or inhuman treatment</header><text>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. The term <term>severe mental pain or suffering</term> has the meaning provided in paragraph (2) of section 2340 of title 18.</text> </paragraph><paragraph id="ID35c9b1e6826a4f5794bfc9c9d3b9b93e"><enum>(13)</enum><header>Intentionally causing serious bodily injury</header><text>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. The term <term>serious bodily injury</term> has the meaning provided in subsection (b)(2) of section 113 of title 18.</text> </paragraph><paragraph id="ID4a7106dff14442cb95b769a991e648b1"><enum>(14)</enum><header>Mutilating or maiming</header><text>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.</text> </paragraph><paragraph id="ID2c1fa7e6e72545a4b27b8d67e856a8cd"><enum>(15)</enum><header>Murder in violation of the law of war</header><text>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.</text> </paragraph><paragraph id="ID2ee9ded96c11443b9607f927c62bf947"><enum>(16)</enum><header>Destruction of property in violation of the law of war</header><text>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.</text> </paragraph><paragraph id="IDc7cb53d9c1b64f8f938557da560d639d"><enum>(17)</enum><header>Using treachery or perfidy</header><text>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.</text> </paragraph><paragraph id="IDa9059c35bfdf4a8abe97c22c96aec5ff"><enum>(18)</enum><header>Improperly using a flag of truce</header><text>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.</text> </paragraph><paragraph id="ID343a69f2ec92409c864b8d8e3d7d40fe"><enum>(19)</enum><header>Improperly using a distinctive emblem</header><text>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.</text> </paragraph><paragraph id="ID243ad83af3fe4cde883ed95df8f66ea9"><enum>(20)</enum><header>Intentionally mistreating a dead body</header><text>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.</text> </paragraph><paragraph id="ID90344661b4874b74928669f382d57f12"><enum>(21)</enum><header>Rape</header><text>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.</text> </paragraph><paragraph id="ID6db83d1c35cc42168f215373d3969035"><enum>(22)</enum><header>Hijacking or hazarding a vessel or aircraft</header><text>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.</text> </paragraph><paragraph id="ID79635d661d96455396fab7726e8716ab"><enum>(23)</enum><header>Terrorism</header><text>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, the penalty of death.</text> </paragraph><paragraph id="ID41564dda3dbc4a73b80030848cbb48e7"><enum>(24)</enum><header>Providing material support for terrorism</header><text>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)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as defined in subsection (b)(23)), 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 <term>material support or resources</term> has the meaning provided in subsection (b) of section 2339A of title 18.</text> </paragraph><paragraph id="ID4c0b0f360a57440bb424c32ae2650ead"><enum>(25)</enum><header>Wrongfully aiding the enemy</header><text>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 cobelligerents shall be guilty of the offense of wrongfully aiding the enemy and shall be subject to whatever punishment the commission may direct.</text> </paragraph><paragraph id="IDc06e8418bfd04615a3a5d5f5aee99ee2"><enum>(26)</enum><header>Spying</header><text>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 cobelligerents, shall be guilty of the offense of spying and shall be subject to whatever punishment the commission may direct, including the penalty of death.</text> </paragraph><paragraph id="ID5f27654963794eb3a50e67269f614032"><enum>(27)</enum><header>Conspiracy</header><text>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.</text> </paragraph></subsection></section><section id="IDd339330332064dac95782489122c75ac"><enum>950w.</enum><header>Perjury and obstruction of justice</header><text display-inline="no-display-inline">The military commissions also may try offenses and impose punishments for perjury, false testimony, or obstruction of justice related to military commissions.</text> </section><section id="IDe89a2c3925274f90b7d188b17f5dbd33"><enum>950x.</enum><header>Contempt</header><text display-inline="no-display-inline">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.</text> </section></subchapter></chapter><after-quoted-block>.</after-quoted-block></quoted-block> </paragraph><paragraph id="ID1e7cca27d5fc4872b874a3b033f58ca4"><enum>(2)</enum><header>Tables of chapters amendments</header><text>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:</text> <quoted-block display-inline="no-display-inline" id="idD84BBB6F196946D0B1312536AC3A06A1" style="OLC"> <toc> <toc-entry bold="off" level="chapter">CHAPTER 47A—MILITARY COMMISSIONS</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER I—GENERAL PROVISIONS</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER II—COMPOSITION OF COURTS-MARTIAL</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER III—PRE-TRIAL PROCEDURE</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER IV—TRIAL PROCEDURE</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER V—SENTENCES</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER VI—POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER VII—PUNITIVE MATTERS</toc-entry> </toc> <after-quoted-block>.</after-quoted-block></quoted-block> </paragraph></subsection><subsection id="idE4638192D9684E4EA98A637FF0C1544E"><enum>(b)</enum><header>Submittal of procedures to Congress</header> <paragraph id="IDb0b11f2f264d4b4ea1ee9bb6f4d430e5"><enum>(1)</enum><header>Submittal of procedures</header><text>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)).</text> </paragraph><paragraph id="ID1a6e695fb9714b818e7415247516ec31"><enum>(2)</enum><header>Submittal of modifications</header><text>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.</text> </paragraph></subsection></section><section id="ID4a9af5971c454fb1ab18400c0e2b1122"><enum>105.</enum><header>Judicial review</header><text display-inline="no-display-inline">Section 2241 of title 28, United States Code, is amended by replacing subsection (e) with the following:</text> <quoted-block display-inline="no-display-inline" id="idA58038AE95BA448C89B50B56ABF71782" style="OLC"> <subsection id="IDb2cea08e62e84315b885f83c5bea3d1b"><enum>(e)</enum><text>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 subsection, 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:</text> <paragraph id="IDca150f4131a349c4bfd6539c73aea1d1"><enum>(1)</enum><header>Combatant status review tribunals</header><text>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.</text> </paragraph><paragraph id="IDd8d5b5af21cb49979505104cb229add5"><enum>(2)</enum><header>Military commissions</header><text>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.</text> </paragraph><paragraph id="ID66c56187bd784e33ab6b3052bbc2ccac"><enum>(3)</enum><header>Information considered</header><text>The court may consider classified information submitted in camera and ex parte in making any determination under this section.</text> </paragraph></subsection><after-quoted-block>.</after-quoted-block></quoted-block> </section><section id="id78C0C728314C467F84E0FFF225CE33A5"><enum>106.</enum><header>Satisfaction of treaty obligations</header> <subsection id="IDe864cb2e21fb4508ac647468e8c8a292"><enum>(a)</enum><header>In general</header><text>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 sections 1(b) and 1(d) of such Article.</text> </subsection><subsection id="ID7967a866586c474bb34eed41d8335249"><enum>(b)</enum><header>Rights not judicially enforceable</header> <paragraph id="IDffba37621ef34360a39caabaa89d83b5"><enum>(1)</enum><header>In general</header><text>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.</text> </paragraph><paragraph id="ID2bff65d102694fa5a133730852aaa937"><enum>(2)</enum><header>Construction</header><text>Paragraph (1) may not be construed to affect the obligations of the United States under the Geneva Conventions.</text> </paragraph></subsection><subsection id="IDab4fb5c40d4c4bd89e89c0386d537c29"><enum>(c)</enum><header>Geneva conventions defined</header><text>In this section, the term <term>Geneva Conventions</term> means the international conventions signed at Geneva on August 12, 1949, including common Article 3.</text> </subsection></section><section id="IDea3318dfeaee47458386a576255da695"><enum>107.</enum><header>War Crimes Act amendment</header><text display-inline="no-display-inline">Section 2441 of title 18, United States Code, is amended by replacing subsection (c)(3) with the following:</text> <quoted-block display-inline="no-display-inline" id="idA7AB5FB769C445B8B190968A6649E9D5" style="USC"> <paragraph id="ID953c3c42c10d4660989402f249ff1b36"><enum>(3)</enum><text>which constitutes any of the following serious violations of common Article 3 of the international conventions signed at Geneva on August 12, 1949, when committed in the context of and in association with an armed conflict not of an international character:</text> <subparagraph id="ID5af43f62cf894e76bde83832bf3ba9c4"><enum>(A)</enum><header>Torture</header><text>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. The term <term>severe mental pain or suffering</term> has the meaning provided in paragraph (2) of section 2340 of this title.</text> </subparagraph><subparagraph id="IDaf360c4b22164c6885ade2c9eb65cc11"><enum>(B)</enum><header>Cruel or inhuman treatment</header><text>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. The term <term>severe mental pain or suffering</term> has the meaning provided in paragraph (2) of section 2340 of this title.</text> </subparagraph><subparagraph id="ID9336e6daa26f4daf981332854228ef2e"><enum>(C)</enum><header>Performing biological experiments</header><text>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.</text> </subparagraph><subparagraph id="IDc1e97dc2f20d48708ff5e7eb4ea3470c"><enum>(D)</enum><header>Murder</header><text>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.</text> </subparagraph><subparagraph id="IDb0a9582505c14f8faf704a5f45f8c963"><enum>(E)</enum><header>Mutilation or maiming</header><text>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.</text> </subparagraph><subparagraph id="ID8a483f5259a3461ebd32aa02316d13f4"><enum>(F)</enum><header>Intentionally causing great suffering or serious injury</header><text>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. The term <term>serious bodily injury</term> has the meaning provided in subsection (b)(2) of section 113 of this title.</text> </subparagraph><subparagraph id="ID339828f1b7d04af891b4a7e3811138f7"><enum>(G)</enum><header>Rape</header><text>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.</text> </subparagraph><subparagraph id="ID87ae5dd2b75c454baaca5b53cef8ae6c"><enum>(H)</enum><header>Sexual assault or abuse</header><text>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, the term <term>sexual contact</term> has the meaning provided in paragraph (3) of section 2246 of this title.</text> </subparagraph><subparagraph id="ID423727deef1c484eb1e02711cb8716bc"><enum>(I)</enum><header>Taking hostages</header><text>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.</text> </subparagraph></paragraph><after-quoted-block>.</after-quoted-block></quoted-block> </section><section id="IDce80227160bc414aa91b3bf39ee75abb"><enum>108.</enum><header>Conforming amendments</header> <subsection id="ID00442d5e93394b0790a33d07fedde4d8"><enum>(a)</enum><text>Section 1004(b) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note) is amended to conform with this title as follows—</text> <paragraph id="ID51a8a6c31bdf42afa5674636763f3ce4"><enum>(1)</enum><text>by replacing <quote>may provide</quote> with <quote>shall provide</quote>;</text> </paragraph><paragraph id="ID708a6244cca14341bfff31ba791d1337"><enum>(2)</enum><text>by adding <quote>or investigation</quote> after <quote>criminal prosecution</quote>; and</text> </paragraph><paragraph id="ID8c90776da32a447eaf772845c77f7c2f"><enum>(3)</enum><text>by adding <quote>whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies,</quote> after <quote>described in that subsection</quote>.</text> </paragraph></subsection><subsection id="IDaa448cc497404229b14d5cc364c91cae"><enum>(b)</enum><text>Section 1005 of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note) is amended to conform with this title as follows—</text> <paragraph id="ID859d4929a43246329a906a3b6303a8e4"><enum>(1)</enum><text>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;</text> </paragraph><paragraph id="ID923d679b6f0e4d338287c46a3fd13cc3"><enum>(2)</enum><text>in subsection (e)(3)(A), by striking <quote>pursuant to Military Commission Order No. 1, August 31, 2005 (or any successor military order)</quote> and inserting <quote>by a military commission under chapter 47a of title 10, United States Code</quote>;</text> </paragraph><paragraph id="ID110e38e152d84ea09b16e742cb4ff6df"><enum>(3)</enum><text>in former subsection (e)(3)(C)(i), by striking <quote>pursuant to the military order</quote> and inserting <quote>by a military commission</quote>;</text> </paragraph><paragraph id="ID68799b573cd7465fa085793b21004f1b"><enum>(4)</enum><text>in former subsection (e)(3)(C)(ii), by striking <quote>pursuant to such military order</quote> and inserting <quote>by such a military commission</quote>;</text> </paragraph><paragraph id="IDcbafde240d5546bf837ea6e648f8155e"><enum>(5)</enum><text>in former subsection (e)(3)(D)(i) by striking <quote>specified in the military order</quote> and inserting <quote>specified for a military commission</quote>;</text> </paragraph><paragraph id="IDfada441ebd61491eaa3ea16415a96c10"><enum>(6)</enum><text>in former subsection (e)(3)(C)(i), by striking <quote>at Guantanamo Bay, Cuba</quote>; and</text> </paragraph><paragraph id="ID2984c7f595804e4ba820bb22c62b4894"><enum>(7)</enum><text>in former subsection (e)(2)(B)(i) by replacing <quote>the Department of Defense at Guantanamo Bay, Cuba</quote> with <quote>United States</quote>.</text> </paragraph></subsection><subsection id="IDd4e009ce6524422bac33b215a2ff15c2"><enum>(c)</enum><text>Section 802 of title 10, United States Code, is amended to conform with this title by adding, <quote>(a)(13) Lawful enemy combatants who violate the law of war.</quote>.</text> </subsection><subsection id="ID2257c201f980486e9edea5c84d2aa17f"><enum>(d)</enum><text>Section 821 of title 10, United States Code, is amended to conform with this title by striking the phrase <quote>by statute or the law of war</quote>.</text> </subsection><subsection id="IDd5f8f4b1d8044d1e8997b82865e7619e"><enum>(e)</enum><text>Section 836 of title 10, United States Code, is amended to conform with this title as follows—in subsection (a), by replacing <quote>military commissions and other military tribunals</quote> with <quote>and other military tribunals (excluding military commissions)</quote>.</text> </subsection></section><section id="ID63dfd98a18684b31815e332fd5ccb374"><enum>109.</enum><header>Retroactive application</header><text display-inline="no-display-inline">This title shall take effect on the date of the enactment of this title 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.</text> </section><section id="ID8c24c8854ed0457c9f0b67a3a2fc8e0d"><enum>110.</enum><header>Severability</header><text display-inline="no-display-inline">If any provision of this title, or the application of a provision to any person or circumstance, is held to be unconstitutional, the remainder of this title, and the application of the provisions to any other person or circumstance, shall not be affected thereby.</text> </section>

Short title

This Act may be cited as the Terrorist Tracking, Identification, and Prosecution Act of 2006.

<enum>I</enum><header>Military Commissions</header> <section id="idEA47CD02CE5844B888AA6507BE449D30"><enum>101.</enum><header>Short title</header><text display-inline="no-display-inline">This title may be cited as the <quote><short-title>Military Commissions Act of 2006</short-title></quote>.</text> </section><section id="ID2211ab616fc54a40a53eee32eeeb66ac"><enum>102.</enum><header>Findings</header><text display-inline="no-display-inline">Congress makes the following findings:</text> <paragraph id="ID42dc5c9a3881467eada538695df7b7b2"><enum>(1)</enum><text>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. 19 al Qaeda operatives hijacked 4 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.</text> </paragraph><paragraph id="IDd2e26ef8704e4e78bff79db4b6967602"><enum>(2)</enum><text>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 <quote>the President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States</quote> and authorized the President <quote>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.</quote>.</text> </paragraph><paragraph id="ID61675fbf648f431e8933d870d8db7715"><enum>(3)</enum><text>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), <quote>[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.</quote>.</text> </paragraph><paragraph id="ID370cbff651b7464f87545b11a6a018a3"><enum>(4)</enum><text>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 <quote>Detention, Treatment, and Trial of Certain Noncitizens in the War Against Terrorism.</quote> 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.</text> </paragraph><paragraph id="IDb6c1e876fe1b40cb9fbaf3f403b14bfa"><enum>(5)</enum><text>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 title, 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 title 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.</text> </paragraph><paragraph id="IDeb717639264946a582e44e86196bfc4a"><enum>(6)</enum><text>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.</text> </paragraph><paragraph id="IDef715f76dd3248adb8726d4b89786272"><enum>(7)</enum><text>Many procedures for courts-martial would not be practicable in trying the unlawful enemy combatants for whom this title provides for trial by military commission. For instance, court-martial proceedings would in certain circumstances—</text> <subparagraph id="ID6070e919e95743dc82cd8525bd9283ea"><enum>(A)</enum><text>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;</text> </subparagraph><subparagraph id="IDa4b5a2101478482ca26cf5bb1b17869c"><enum>(B)</enum><text>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;</text> </subparagraph><subparagraph id="ID5d09761a85dc45cd97a91345776e28c4"><enum>(C)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="IDde6e4112e3ed4debbf52d0069609ea99"><enum>(8)</enum><text>The exclusive judicial review for which this title, 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—</text> <subparagraph id="ID26f8f0b38a0344c8bda6adee069e2767"><enum>(A)</enum><text>the circumstances of the conflicts between the United States and international terrorist organizations; and</text> </subparagraph><subparagraph id="ID9b3fdb98610a4bcfa420d958693ab39c"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="ID39b3454a2bd0434ba0277ce7005eaa09"><enum>(9)</enum><text>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 title 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.</text> </paragraph></section><section id="IDacfd3f46008d4fc3bbdb1bea8c9c5dd4"><enum>103.</enum><header>Authorization for military commissions</header> <subsection id="IDbbcfbd7c2d5844e898a5001d97715fdf"><enum>(a)</enum><header>In general</header><text>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 104 of this Act (chapter 47A of title 10).</text> </subsection><subsection id="ID537826c7370c47b1983709bae1cc98d3"><enum>(b)</enum><header>Construction</header><text>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.</text> </subsection><subsection id="IDc1aab7ab86d54b719bd8adc79d9f05e6"><enum>(c)</enum><header>Scope of punishment authority</header><text>A military commission established pursuant to subsection (a) shall have authority to impose upon any person found guilty after a proceeding under this title 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 title, 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.</text> </subsection><subsection id="ID481f7655dd2e446cab1cb2597b0403a8"><enum>(d)</enum><header>Execution of punishment</header><text>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.</text> </subsection><subsection id="ID3d0435eacef147fcb3f816beeb27fb69"><enum>(e)</enum><header>Annual report on trials by military commission</header> <paragraph id="IDb8dd8cc1b41b402dbfb357592c5f0470"><enum>(1)</enum><header>Annual report required</header><text>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.</text> </paragraph><paragraph id="ID9a65c2f0d35a4abdb712b8cdd26226e8"><enum>(2)</enum><header>Form</header><text>Each such report shall be submitted in unclassified form, with classified annex, if necessary and consistent with national security.</text> </paragraph></subsection></section><section id="IDde481442c2c647aa99a04b03281bf1e2"><enum>104.</enum><header>Military commissions</header> <subsection id="ID22f18805eafd40f6948f72698afb6254"><enum>(a)</enum><header>Military commissions</header> <paragraph id="ID8cc20de039304c509043896801331d9e"><enum>(1)</enum><text>In general.—Subtitle A of title 10, United States Code, is amended by inserting after chapter 47 the following new chapter:</text> <quoted-block display-inline="no-display-inline" id="id6E118529FCBC4B6D8596AB847573C339" style="USC"> <chapter id="id3FAEADEF4B98442CBFE2251E97573461"><enum>47A</enum><header>Military commissions</header> <subchapter id="id98B65AAAE5724E048E35461119708435"><enum>I</enum><header>General provisions</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="ID8910d25bcbdd48cda05fe2cb1a6e38b7" level="section">948a. Definitions.</toc-entry> <toc-entry idref="IDd9a75f43f57d4332ac8d11d50eec2356" level="section">948b. Military commissions generally.</toc-entry> <toc-entry idref="IDe2ac7384a54d4b5d82a298f623aa3d5a" level="section">948c. Persons subject to military commissions.</toc-entry> <toc-entry idref="ID76e4b04845ba4f369e524c23520b9736" level="section">948d. Jurisdiction of military commissions.</toc-entry> </toc> <section id="ID8910d25bcbdd48cda05fe2cb1a6e38b7"><enum>948a.</enum><header>Definitions </header><text display-inline="no-display-inline">In this chapter:</text> <paragraph id="ID7f64c0b850ce4d41aef23acd62c1a281"><enum>(1)</enum><header>Alien</header><text>The term <term>alien</term> means an individual who is not a citizen of the United States.</text> </paragraph><paragraph id="IDf0a83f21d2b34b81980246e9cc1590e3"><enum>(2)</enum><header>Classified information</header><text>The term <term>classified information</term> means the following—</text> <subparagraph id="ID8388c01df67749929b13db3c3406623a"><enum>(A)</enum><text>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.</text> </subparagraph><subparagraph id="ID4f768dfaa8e241da9f214d8dca9d90a7"><enum>(B)</enum><text>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)).</text> </subparagraph></paragraph><paragraph id="ID5a1dde0b53f84d5a8edc083edaf4d88c"><enum>(3)</enum><header>Commission</header><text>The term <term>commission</term> means a military commission established pursuant to this chapter.</text> </paragraph><paragraph id="ID467f1105d21a445d8c22bdbb9e60a2aa"><enum>(4)</enum><header>Convening authority</header><text>The term <term>convening authority</term> shall be the Secretary of Defense or his designee.</text> </paragraph><paragraph id="ID1b282297e7314a1ba9c07dfdaecbbe7c"><enum>(5)</enum><header>Lawful enemy combatant</header><text>The term <term>lawful enemy combatant</term> 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—</text> <subparagraph id="idA18635677F3D48E399944A33000DE778"><enum>(A)</enum><text>a member of the regular forces of a State party engaged in hostilities against the United States or its cobelligerents;</text> </subparagraph><subparagraph id="id87B3D6CC5D4E4761A9A3FDF18E117ECF"><enum>(B)</enum><text>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</text> </subparagraph><subparagraph id="id85E16E1E91714DC6A1C22A1C07996CA4"><enum>(C)</enum><text>a member of a regular armed forces who professes allegiance to a government engaged in such hostilities, but not recognized by the United States.</text> </subparagraph></paragraph><paragraph id="ID5db0a7acd7a44e1098a619d62b76807f"><enum>(6)</enum><header>Secretary</header><text>The term <term>Secretary</term> means the Secretary of Defense.</text> </paragraph><paragraph id="ID80fbcc575150449ba50ac433c4eb8913"><enum>(7)</enum><header>Unlawful enemy combatant</header><text>The term <term>unlawful enemy combatant</term> means an individual determined by or under the authority of the President or the Secretary of Defense—</text> <subparagraph id="ID716f4acc3fd94d0c8147ab0350609d5b"><enum>(A)</enum><text>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 cobelligerents in violation of the law of war;</text> </subparagraph><subparagraph id="ID31d6d14468714df0b28867e1ffeb6442"><enum>(B)</enum><text>to have committed a hostile act in aid of such a force or organization so engaged; or</text> </subparagraph><subparagraph id="ID6e9346144ce54d8fbd017db3095c3a74"><enum>(C)</enum><text>to have supported hostilities in aid of such a force or organization so engaged.</text> </subparagraph><continuation-text continuation-text-level="paragraph">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 <term>protected person</term> 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.</continuation-text></paragraph><paragraph id="ID62c4fc750a384f7f810203a52b73d8ea"><enum>(8)</enum><header>Geneva Conventions</header><text>The term <term>Geneva Conventions</term> means the international conventions signed at Geneva on August 12, 1949, including common Article 3.</text> </paragraph></section><section id="IDd9a75f43f57d4332ac8d11d50eec2356"><enum>948b.</enum><header>Military commissions generally</header> <subsection id="IDa9f04786271b45918b0dfaed234482b0"><enum>(a)</enum><header>Purpose</header><text>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.</text> </subsection><subsection id="IDd58433a9844041a2bc8cb9f2d619e8e9"><enum>(b)</enum><header>Rule of construction</header><text>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 chapter 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.</text> </subsection><subsection id="ID77aa5a6f3e5e48428b217b2bc5dcddc5"><enum>(c)</enum><text>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 cobelligerents before, on, or after September 11, 2001.</text> </subsection><subsection id="ID924ed8453d424fce8b177b3dd95303f1"><enum>(d)</enum><text>A military commission established under this chapter is a regularly constituted court, affording all the necessary <quote>judicial guarantees which are recognized as indispensable by civilized peoples</quote> for purposes of common Article 3 of the Geneva Conventions.</text> </subsection></section><section id="IDe2ac7384a54d4b5d82a298f623aa3d5a"><enum>948c.</enum><header>Persons subject to military commissions</header><text display-inline="no-display-inline">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.</text> </section><section id="ID76e4b04845ba4f369e524c23520b9736"><enum>948d.</enum><header>Jurisdiction of military commissions</header> <subsection id="ID7abbb5c3ef364dd08047fa6c91a61482"><enum>(a)</enum><text>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 this title. Courts-martial established under chapter 47 of this title shall have jurisdiction to try a lawful enemy combatant for any offense made punishable under this chapter.</text> </subsection><subsection id="IDee66539d45304e32b308fa8fe2b96368"><enum>(b)</enum><text>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 <quote>protected person</quote> 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 <term>protected person</term> 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.</text> </subsection><subsection id="IDd63bab2008bf437cb7528fbb4a62b267"><enum>(c)</enum><text>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.</text> </subsection></section></subchapter><subchapter id="idF510E0BBAD5E45ACA46980CAAB59E834"><enum>II</enum><header>Composition of military commissions</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="ID9c6d258a6aef4b04a21c39dca5ec25ae" level="section">948h. Who may convene military commissions.</toc-entry> <toc-entry idref="ID4894d3f64d064091867df16d2305bf99" level="section">948i. Who may serve on military commissions.</toc-entry> <toc-entry idref="IDfc81e5bccb8d42d2b0956e1251b080ab" level="section">948j. Military judge of a military commission.</toc-entry> <toc-entry idref="ID4f660b6d6d1a45439173cd48614a7121" level="section">948k. Detail of trial counsel and defense counsel.</toc-entry> <toc-entry idref="ID35dd74d78dbd4887bd51363398bb2787" level="section">948l. Detail or employment of reporters and interpreters.</toc-entry> <toc-entry idref="IDf4d2cf59ecf84d309e2e9d3e13811dc8" level="section">948m. Number of members; excuse of members; absent and additional members.</toc-entry> </toc> <section id="ID9c6d258a6aef4b04a21c39dca5ec25ae"><enum>948h.</enum><header>Who may convene military commissions</header> <subsection id="ID52e6ba98678a4df289011135f6eeab0e"><enum>(a)</enum><text>The Secretary may issue orders convening military commissions to try individuals under this chapter.</text> </subsection><subsection id="IDc177941a436248fd80a97d1fc1f4b864"><enum>(b)</enum><text>The Secretary may delegate his authority to convene military commissions or to promulgate any regulations under this chapter.</text> </subsection></section><section id="ID4894d3f64d064091867df16d2305bf99"><enum>948i.</enum><header>Who may serve on military commissions</header> <subsection id="ID9961a715ee5743838e99aa1964f215c5"><enum>(a)</enum><header>In general</header><text>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.</text> </subsection><subsection id="IDb94d6eead3d54b619e5dc8718f9919f7"><enum>(b)</enum><header>Detail of members</header><text>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.</text> </subsection><subsection id="ID8a0f8743e5da41e6824ecda03cf6e3c3"><enum>(c)</enum><header>Excuse of members</header><text>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.</text> </subsection></section><section id="IDfc81e5bccb8d42d2b0956e1251b080ab"><enum>948j.</enum><header>Military judge of a military commission</header> <subsection id="IDe04a5f45d25645619598732d464402d6"><enum>(a)</enum><header>Detail of a military judge</header><text>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 of duty as a military judge.</text> </subsection><subsection id="ID77b3055002fa45f083724e1680df3fa6"><enum>(b)</enum><header>Eligibility</header><text>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.</text> </subsection><subsection id="IDcf6f0c9297c347b2b44de753e379e9dd"><enum>(c)</enum><header>Ineligibility of certain individuals</header><text>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.</text> </subsection><subsection id="IDf8919dc766f245f588329c987abb0025"><enum>(d)</enum><header>Consultation with members; ineligibility to vote</header><text>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.</text> </subsection></section><section id="ID4f660b6d6d1a45439173cd48614a7121"><enum>948k.</enum><header>Detail of trial counsel and defense counsel</header> <subsection id="ID6e033b052fdc4b73bb22ccdf93759d2f"><enum>(a)</enum><header>Detail of counsel generally</header><paragraph commented="no" display-inline="yes-display-inline" id="id598591D1C48847AC9FB9C4EE377C58C0"><enum>(1)</enum><text>Trial counsel and military defense counsel shall be detailed for each commission.</text> </paragraph><paragraph id="IDb772110bf6764e7bbeaa35f838890781" indent="up1"><enum>(2)</enum><text>Assistant trial counsel and assistant and associate military defense counsel may be detailed for each commission.</text> </paragraph><paragraph id="ID0b483999b9544ff5b2efae9749294615" indent="up1"><enum>(3)</enum><text>Military defense counsel shall be detailed as soon as practicable after the swearing of charges against the person accused.</text> </paragraph><paragraph id="ID3a26656b33a445efbeaca99c19489715" indent="up1"><enum>(4)</enum><text>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.</text> </paragraph></subsection><subsection id="ID249dcd5c76a14253abd098fe3d097ac9"><enum>(b)</enum><header>Trial counsel</header><text>Subject to subsection (d), trial counsel detailed for a military commission under this chapter must be—</text> <paragraph id="IDf1e75ba563084dae9b96ffc927082dc9"><enum>(1)</enum><text>a judge advocate (as that term is defined in section 801 of this title) who is—</text> <subparagraph id="IDa88ec39c89e84d30b3b931620101538b"><enum>(A)</enum><text>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</text> </subparagraph><subparagraph id="IDc9934a597a7949568e92fc262f058bca"><enum>(B)</enum><text>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</text> </subparagraph></paragraph><paragraph id="ID847a9c1f172d400094865ae567ba661a"><enum>(2)</enum><text>a civilian who is—</text> <subparagraph id="ID7c368fcb4c664f5aa2ea783a902fd3a4"><enum>(A)</enum><text>a member of the bar of a Federal court or of the highest court of a State; and</text> </subparagraph><subparagraph id="ID8a0f57b0f9b94dce95cdc804e9a42a74"><enum>(B)</enum><text>otherwise qualified to practice before the commission pursuant to regulations prescribed by the Secretary.</text> </subparagraph></paragraph></subsection><subsection id="ID3a355b188c8c4d75869edde14b64c039"><enum>(c)</enum><header>Military defense counsel</header><text>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—</text> <paragraph id="IDc1d03c814ba841f4ab3f95d59be6226d"><enum>(1)</enum><text>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</text> </paragraph><paragraph id="ID21e442c9520345fdb541edbabfbd093b"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDa0dd9f14468d4eb683d8166890ef2017"><enum>(d)</enum><header>Ineligibility of certain individuals</header><text>No person who has acted as an investigator, military judge, or member of a military commission under this chapter may act later as trial counsel 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.</text> </subsection></section><section id="ID35dd74d78dbd4887bd51363398bb2787"><enum>948l.</enum><header>Detail or employment of reporters and interpreters</header> <subsection id="ID6d426767ddef467ba31f1a6efba1074c"><enum>(a)</enum><header>Court reporters</header><text>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.</text> </subsection><subsection id="ID47e1a3f4c215444b9b923aeb9cac3d7f"><enum>(b)</enum><header>Interpreters</header><text>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.</text> </subsection><subsection id="IDf0e6e444bd404d91a5968ddb34b25a4b"><enum>(c)</enum><header>Transcript; record</header><text>The transcript shall be under the control of the convening authority, which is responsible for preparing the record of the proceedings.</text> </subsection></section><section id="IDf4d2cf59ecf84d309e2e9d3e13811dc8"><enum>948m.</enum><header>Number of members; excuse of members; absent and additional members </header> <subsection id="ID749a33715e8f4b39af27687c7bdbb99f"><enum>(a)</enum><header>Number of members</header><paragraph commented="no" display-inline="yes-display-inline" id="idD31AC83F73A247FC90A9866896971466"><enum>(1)</enum><text>A military commission under this chapter shall, except as provided in paragraph (2), have at least 5 members.</text> </paragraph><paragraph id="id592CBBA868264308B92A12062CE3ABE6" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDd190dd89ddd0422b84662237c96e5c34"><enum>(b)</enum><header>Excuse of members</header><text>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—</text> <paragraph id="ID721d0acbb0494951994e215a6fa5233e"><enum>(1)</enum><text>as a result of challenge;</text> </paragraph><paragraph id="IDd7a257a8f65c4542a46b747ee3cf4db3"><enum>(2)</enum><text>by the military judge for physical disability or other good cause; or</text> </paragraph><paragraph id="ID1e52f5a190d3450dac96208235260638"><enum>(3)</enum><text>by order of the convening authority for good cause.</text> </paragraph></subsection><subsection id="IDc503fb5d278f4880b69bdd0a8ae1f952"><enum>(c)</enum><header>Absent and additional members</header><text>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.</text> </subsection></section></subchapter><subchapter id="idD12E9509916141C292FB1F3D886B0E97"><enum>III</enum><header>Pre-trial procedure</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="ID05e44089ab454c3483312661be03aeb3" level="section">948q. Charges and specifications.</toc-entry> <toc-entry idref="ID806f46d8cc69475aafd5e73e4dba481a" level="section">948r. Compulsory self-incrimination prohibited; statements obtained by torture.</toc-entry> <toc-entry idref="ID6f7e7930289946b699f35ceeea70432f" level="section">948s. Service of charges.</toc-entry> </toc> <section id="ID05e44089ab454c3483312661be03aeb3"><enum>948q.</enum><header>Charges and specifications</header> <subsection id="ID977b5f567a004a2e887ac9b79f98fd1f"><enum>(a)</enum><header>Charges and specifications</header><text>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—</text> <paragraph id="IDce79ec819da54e9cabb3f068372786c0"><enum>(1)</enum><text>that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and</text> </paragraph><paragraph id="ID66df0abaa86644ddbd0d4a9b3fddbb18"><enum>(2)</enum><text>that they are true in fact to the best of his knowledge and belief.</text> </paragraph></subsection><subsection id="ID4f0babb07a4241c285b556310f2bd619"><enum>(b)</enum><header>Notice to accused</header><text>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.</text> </subsection></section><section id="ID806f46d8cc69475aafd5e73e4dba481a"><enum>948r.</enum><header>Compulsory self-incrimination prohibited; statements obtained by torture </header> <subsection id="IDf4a93172615a4a3494fc8c7f1cc144ad"><enum>(a)</enum><header>In general</header><text>No person shall be required to testify against himself at a commission proceeding.</text> </subsection><subsection id="ID7dbf710bda1745e89eb39f4762d081b7"><enum>(b)</enum><header>Statements obtained by torture</header><text>A statement obtained by use of torture, as defined in section 2340 of title 18, 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.</text> </subsection><subsection id="ID541b97ab11ea4c4aae6077ff7d692615"><enum>(c)</enum><header>Statements not obtained by torture</header><text>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.</text> </subsection></section><section id="ID6f7e7930289946b699f35ceeea70432f"><enum>948s.</enum><header>Service of charges </header><text display-inline="no-display-inline">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.</text> </section></subchapter><subchapter id="id76C5991CEA0640529772B37D53DD95EF"><enum>IV</enum><header>Trial procedure</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="IDbc61950c53ff45e7ae2b975307c2c274" level="section">949a. Rules.</toc-entry> <toc-entry idref="ID89167f46143f48139c5e895503095101" level="section">949b. Unlawfully influencing action of military commission.</toc-entry> <toc-entry idref="ID5d6ab58ba50f473ca858e38aa306b9e5" level="section">949c. Duties of trial counsel and defense counsel.</toc-entry> <toc-entry idref="ID1ec8a1f02841490697583c4dac2280df" level="section">949d. Sessions.</toc-entry> <toc-entry idref="ID798aa13154244c8e978e1c6eefe44c2d" level="section">949e. Continuances.</toc-entry> <toc-entry idref="ID931df99904fd4b08b463e4a67c0900d6" level="section">949f. Challenges.</toc-entry> <toc-entry idref="ID3d2a0dc3743f4ead9cc1898ba6ed014b" level="section">949g. Oaths.</toc-entry> <toc-entry idref="IDcad217281c2e4612ad4ae7345d2cf7c4" level="section">949h. Former jeopardy.</toc-entry> <toc-entry idref="ID3eb66f97b1464055b8013fe0006d0f23" level="section">949i. Pleas of the accused.</toc-entry> <toc-entry idref="ID6ee8e4c133c1435aaeff6e5a647f141d" level="section">949j. Opportunity to obtain witnesses and other evidence.</toc-entry> <toc-entry idref="ID81d67b04f8c2424eae31dd0de142dda4" level="section">949k. Defense of lack of mental responsibility.</toc-entry> <toc-entry idref="IDf156092b9554433f92393c11e1d3c196" level="section">949l. Voting and rulings.</toc-entry> <toc-entry idref="ID332eb35ef7e14e74ab5471863e400f50" level="section">949m. Number of votes required.</toc-entry> <toc-entry idref="ID6bc9c2b20b6e467cab3d2b9cdc3cb774" level="section">949n. Military commission to announce action.</toc-entry> <toc-entry idref="ID704c8769e3674fa8add1cfd86feda73a" level="section">949o. Record of trial.</toc-entry> </toc> <section id="IDbc61950c53ff45e7ae2b975307c2c274"><enum>949a.</enum><header>Rules</header> <subsection id="ID692a8a03a4ee44f895634ea48fc65003"><enum>(a)</enum><header>Procedures</header><text>Pre-trial, 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.</text> </subsection><subsection id="IDd656c6818c78475baaef992fb57b59dd"><enum>(b)</enum><header>Rules of evidence</header><text>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.</text> </subsection><subsection id="IDa92c30def7c8408f900241a17c3e70f0"><enum>(c)</enum><header>Hearsay evidence</header><text>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.</text> </subsection><subsection commented="no" id="ID2a1a225162dc4609846ee9e6470eac44"><enum></enum><text>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.</text> </subsection></section><section id="ID89167f46143f48139c5e895503095101"><enum>949b.</enum><header>Unlawfully influencing action of military commission</header> <subsection id="ID5e9cee7991374d54b476f6edbbd0871e"><enum>(a)</enum><header>In general</header><paragraph commented="no" display-inline="yes-display-inline" id="idAAC289C684244CFB80232B23E8669642"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="idC421EA95A0AF4B32ACFB89D687EB3446" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph><paragraph id="id707D0CB94AED426C97B03BEC93D1C49E" indent="up1"><enum>(3)</enum><text>The foregoing provisions of this subsection shall not apply with respect to—</text> <subparagraph id="id4570B5C62B2248F584DA88BF63803A8E"><enum>(A)</enum><text>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</text> </subparagraph><subparagraph id="id24129D7A0E7F46C287CC97AEC9FB1AEF"><enum>(B)</enum><text>statements and instructions given in open proceedings by the military judge or counsel.</text> </subparagraph></paragraph></subsection><subsection id="IDaf81a4dd7e9042409b0d2814245dc96c"><enum>(b)</enum><header>Prohibition on consideration of actions on commission in evaluation of fitness</header><text>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—</text> <paragraph id="IDa9b3cacf5818434da6e88cdcaaf9d280"><enum>(1)</enum><text>consider or evaluate the performance of duty of any member of a military commission under this chapter; or</text> </paragraph><paragraph id="ID6fd531a34194476c9f9c7428f7f98644"><enum>(2)</enum><text>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.</text> </paragraph></subsection></section><section id="ID5d6ab58ba50f473ca858e38aa306b9e5"><enum>949c.</enum><header>Duties of trial counsel and defense counsel</header> <subsection id="ID6d30c04795e94ede936613bf0994772a"><enum>(a)</enum><header>Trial counsel</header><text>The trial counsel of a military commission shall prosecute in the name of the United States.</text> </subsection><subsection id="IDd625388b4d964c2f937edbc58012302e"><enum>(b)</enum><header>Defense counsel</header><paragraph commented="no" display-inline="yes-display-inline" id="idB42C64F258684C6D93468CBB867D63F8"><enum>(1)</enum><text>The accused shall be represented in his defense before a military commission as provided in this subsection.</text> </paragraph><paragraph id="idBEC75522230A4F1E8E2504842FDCED0E" indent="up1"><enum>(2)</enum><text>The accused shall be represented by military counsel detailed under section 948k of this title.</text> </paragraph><paragraph id="id18E7C9D1C8FE45D99E52430FC246D7F2" indent="up1"><enum>(3)</enum><text>The accused may be represented by civilian counsel if retained by him, provided that civilian counsel—</text> <subparagraph id="idCCB68E5207E04C80A39EBE3D0CE67885"><enum>(A)</enum><text>is a United States citizen;</text> </subparagraph><subparagraph id="id9188CD260C834241B1B1F24A55FE47AF"><enum>(B)</enum><text>is admitted to the practice of law in a State, district, territory, or possession of the United States, or before a Federal court;</text> </subparagraph><subparagraph id="id311CBCC738D540309226509F1592C679"><enum>(C)</enum><text>has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct;</text> </subparagraph><subparagraph id="idF37C368BAD904D95BE6B988FBA8B7A47"><enum>(D)</enum><text>has been determined to be eligible for access to information classified at the level Secret or higher; and</text> </subparagraph><subparagraph id="id5173A76535564BCAB6D12E3003117CF9"><enum>(E)</enum><text>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.</text> </subparagraph><continuation-text continuation-text-level="paragraph">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.</continuation-text></paragraph><paragraph id="IDbdb5db72cacc44bca50bd3a86e28794c" indent="up1"><enum>(4)</enum><text>If the accused is represented by civilian counsel, military counsel detailed shall act as associate counsel.</text> </paragraph><paragraph id="ID8816563e741547cfbf5d9f5e52377084" indent="up1"><enum>(5)</enum><text>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.</text> </paragraph><paragraph id="IDfe57960ff9d74e6fb147936b3c040395" indent="up1"><enum>(6)</enum><text>Defense counsel may crossexamine each witness for the prosecution who testifies before the commission.</text> </paragraph></subsection></section><section id="ID1ec8a1f02841490697583c4dac2280df"><enum>949d.</enum><header>Sessions</header> <subsection id="IDe3ea2d55d8ed4d89bb846fb49791bd6a"><enum>(a)</enum><header>Sessions without presence of members</header><paragraph commented="no" display-inline="yes-display-inline" id="idEEF1229CF4014175A9F46365ECE81A07"><enum>(1)</enum><text>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—</text> <subparagraph id="ID4af86b9c6efd43f0bd9eb70d1a92e2c6" indent="up1"><enum>(A)</enum><text>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;</text> </subparagraph><subparagraph id="ID9b72d549bd9440339ffa7d1f67d8018b" indent="up1"><enum>(B)</enum><text>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;</text> </subparagraph><subparagraph id="IDeea0ed8b651546aa9b16261011053291" indent="up1"><enum>(C)</enum><text>if permitted by regulations of the Secretary, receiving the pleas of the accused; and</text> </subparagraph><subparagraph id="ID8ae9dfd86ca2443ab193aaa5b872d4cb" indent="up1"><enum>(D)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="IDe3e887ed501246b9a4fe1d078baa2419" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDa4ca39318d624c13a4381383fb33a0e9"><enum>(b)</enum><header>Proceedings in presence of accused</header><text>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.</text> </subsection><subsection id="ID116320067d6b4d4984a7c98fbf8d1a8a"><enum>(c)</enum><header>Deliberations or vote of members</header><text>When the members of the commission deliberate or vote, only the members may be present.</text> </subsection><subsection id="ID742f420abfdc453ab322596aa6c424fa"><enum>(d)</enum><header>Public proceedings</header><paragraph commented="no" display-inline="yes-display-inline" id="id7B97416EBF3E45EBAE232D42DCA0146F"><enum>(1)</enum><text>The military commission shall hold open and public proceedings.</text> </paragraph><paragraph id="IDa69b1a60b6f448f3a2e892b06c4c2aaa" indent="up1"><enum>(2)</enum><text>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—</text> <subparagraph id="ID2c1fc2675745418d83f6ce2b1a42a8e8"><enum>(A)</enum><text>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</text> </subparagraph><subparagraph id="ID97098559b17e4551a05fa0b7f1426073"><enum>(B)</enum><text>ensure the physical safety of individuals.</text> </subparagraph></paragraph></subsection><subsection id="ID22fd4bd6cfd64750a55654e3c88cfe40"><enum>(e)</enum><header>Limited exclusion of the accused for the protection of classified information</header><paragraph commented="no" display-inline="yes-display-inline" id="idC6DD1048637C406CBD4FEB510E37678C"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="IDfc2346b8086e47c1b7c561856b9a4683" indent="up1"><enum>(2)</enum><text>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—</text> <subparagraph id="IDa7abc709c5da48a8829ad3d7bebdf3f4"><enum>(A)</enum><text>the exclusion of the accused—</text> <clause id="ID3177c02c53c04a63982043712c15159a"><enum>(i)</enum><text>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</text> </clause><clause id="ID382eca8a7ca448799e9e05e04545c125"><enum>(ii)</enum><text>is necessary to ensure the physical safety of individuals; or</text> </clause><clause id="ID7a7e18c1caf54d29b76c0acfb3cd4c8f"><enum>(iii)</enum><text>is necessary to prevent disruption of the proceedings by the accused; and</text> </clause></subparagraph><subparagraph id="IDce66842408534b2eb94a77437f6f521d"><enum>(B)</enum><text>the exclusion of the accused—</text> <clause id="ID509ba06df0a945b99e2b7377ad41a442"><enum>(i)</enum><text>is no broader than necessary; and</text> </clause><clause id="IDda0ad174910b4e6097e4dddde5e22cc0"><enum>(ii)</enum><text>will not deprive the accused of a full and fair trial.</text> </clause></subparagraph></paragraph><paragraph id="ID029dec1e421349efb0d1f33f443064e0" indent="up1"><enum>(3)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idB3BAC883289D4AD08AB5C13F4295FB9E"><enum>(A)</enum><text>A finding under paragraph (2) may be based upon a presentation, including an ex parte or in camera presentation, by either trial counsel or defense counsel.</text> </subparagraph><subparagraph id="IDae6a624773af47a88d7bcf2a7a344bc2" indent="up1"><enum>(B)</enum><text>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—</text> <clause id="ID57d69d4d9240440ebc214853a6a29099"><enum>(i)</enum><text>the disclosure of such classified information to the accused could reasonably be expected to prejudice the national security; and</text> </clause><clause id="ID949580577de84e7b824e48ac10cb5279"><enum>(ii)</enum><text>such evidence has been declassified to the maximum extent possible, consistent with the requirements of national security.</text> </clause></subparagraph></paragraph><paragraph id="ID421d6571ba3f4bdfbb41c99f17b20e59" indent="up1"><enum>(4)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idB8A42929871841A8A42DDDE90F24F841"><enum>(A)</enum><text>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—</text> <clause id="ID2eec7e383d5f4771be53c937e1d3f991" indent="up1"><enum>(i)</enum><text>consideration of the evidence by the commission, without the presence of the accused, is warranted;</text> </clause><clause id="IDf5b51c3abc744a609dd9205da559750b" indent="up1"><enum>(ii)</enum><text>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</text> </clause><clause id="IDec973c47b9de4603999a78cb4c83b220" indent="up1"><enum>(iii)</enum><text>admission of the evidence would not deprive the accused of a full and fair trial.</text> </clause></subparagraph><subparagraph id="IDb104fb51be80450aa87ff1107077a8d4" indent="up1"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="ID37f259f1a80844de9e230c2478fa4185" indent="up1"><enum>(5)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idC2C2B29348EA443EAB5BFA8E41BC15FE"><enum>(A)</enum><text>Military defense counsel shall be present and able to participate in all trial proceedings, and shall be given access to all evidence admitted under paragraph (4).</text> </subparagraph><subparagraph id="IDabf5a1f4c48f40dabb423ae7ad7505f0" indent="up1"><enum>(B)</enum><text>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 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.</text> </subparagraph><subparagraph id="ID71344ba4bda2452fbb52a46b3b7f3c41" indent="up1"><enum>(C)</enum><text>Notwithstanding any other provision of law, any defense counsel who receives classified information admitted pursuant to paragraph (4) shall not be obligated to, and may not, disclose that evidence to the accused.</text> </subparagraph></paragraph></subsection><subsection id="ID84a1909e83a4497782500373c1927b73"><enum>(f)</enum><header>Admission of statements of accused</header><paragraph commented="no" display-inline="yes-display-inline" id="id1F12E6C21ABC4F0493D3400BBCD5E75C"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="IDce1bd9e382e9401a9e857da00ec1292c" indent="up1"><enum>(2)</enum><text>For purposes of this subsection, a <quote>statement</quote> 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.</text> </paragraph></subsection></section><section id="ID798aa13154244c8e978e1c6eefe44c2d"><enum>949e.</enum><header>Continuances</header><text display-inline="no-display-inline">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.</text> </section><section id="ID931df99904fd4b08b463e4a67c0900d6"><enum>949f.</enum><header>Challenges</header> <subsection id="IDb6bd39afbaa1479e96d30a64d9d332dc"><enum>(a)</enum><header>Challenges authorized</header><text>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.</text> </subsection><subsection id="IDeea96502eef945499ffe82cbfcb05062"><enum>(b)</enum><header>Peremptory challenges</header><text>Each accused and the trial counsel is entitled to one peremptory challenge, but the military judge may not be challenged except for cause.</text> </subsection><subsection id="ID0f3ab68e53e94f82a4bfe335de6f2920"><enum>(c)</enum><header>Challenges against additional members</header><text>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.</text> </subsection></section><section id="ID3d2a0dc3743f4ead9cc1898ba6ed014b"><enum>949g.</enum><header> Oaths</header> <subsection id="ID600d5fdf9f4e4233bbb2024103638837"><enum>(a)</enum><header>In general</header><paragraph commented="no" display-inline="yes-display-inline" id="id8C9CB656E3504FC2968220617ADFEA4D"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID78fb7637ab4c4acb8463d66fddc14d47" indent="up1"><enum>(2)</enum><text>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—</text> <subparagraph id="IDe8d447964d4c4937bcdb3d5e0a5f9faa"><enum>(A)</enum><text>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</text> </subparagraph><subparagraph id="ID8814595e8f984fea82a72669ffd67604"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph></subsection><subsection id="ID4466e366c4b3483bafc9b030e169f6d4"><enum>(b)</enum><header>Witnesses</header><text>Each witness before a military commission under this chapter shall be examined on oath.</text> </subsection><subsection id="IDb3714c0e9e064121a25433acb283ba20"><enum>(c)</enum><header>Oath defined</header><text>As used in this section, <quote>oath</quote> includes an affirmation.</text> </subsection></section><section id="IDcad217281c2e4612ad4ae7345d2cf7c4"><enum>949h.</enum><header> Former jeopardy</header> <subsection id="ID5a1d59ebde73443cbf0dfd7bb172c1b1"><enum>(a)</enum><header>In general</header><text>No person may, without his consent, be tried by a commission a second time for the same offense.</text> </subsection><subsection id="IDf2538d8738c54b0f88b0323da85374df"><enum>(b)</enum><header>Scope of trial</header><text>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.</text> </subsection></section><section id="ID3eb66f97b1464055b8013fe0006d0f23"><enum>949i.</enum><header> Pleas of the accused</header> <subsection id="ID6182f2d675d8476ea23c2affb0d049a2"><enum>(a)</enum><header>Plea of not guilty</header><text>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.</text> </subsection><subsection id="IDeb11765f6a144fdbbeb447f6ec920455"><enum>(b)</enum><header>Finding of guilt after guilty plea</header><text>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.</text> </subsection></section><section id="ID6ee8e4c133c1435aaeff6e5a647f141d"><enum>949j.</enum><header> Opportunity to obtain witnesses and other evidence</header> <subsection id="IDceb9e29084e7438cae72538eb106f7be"><enum>(a)</enum><header>In general</header><paragraph commented="no" display-inline="yes-display-inline" id="id90B3DDD5E1B24587AEEB3DD6E52B5256"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID51d0ed8a3f084e4d8be89efdd63818ee" indent="up1"><enum>(2)</enum><text>Process issued in military commissions to compel witnesses to appear and testify and to compel the production of other evidence—</text> <subparagraph id="ID3ebe5118c078461fad2aaa17bff7201d"><enum>(A)</enum><text>shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and</text> </subparagraph><subparagraph id="ID74f287308e8d4037adae5c90cb8cfed0"><enum>(B)</enum><text>shall run to any place where the United States shall have jurisdiction thereof.</text> </subparagraph></paragraph></subsection><subsection id="IDcdbdb3d1152d4503bdc28c4f3323de3b"><enum>(b)</enum><header>Treatment of certain items</header><text>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—</text> <paragraph id="IDce1615354ffc4ae0aec2b8aca7af7415"><enum>(1)</enum><text>to delete specified items of classified information from such documents;</text> </paragraph><paragraph id="ID29359dc4f793421bb540883b3768aefc"><enum>(2)</enum><text>to substitute an unclassified summary of the information for such classified documents; or</text> </paragraph><paragraph id="ID5185c459cd8d45eaa0a924591856fd1e"><enum>(3)</enum><text>to substitute an unclassified statement admitting relevant facts that classified information would tend to prove.</text> </paragraph></subsection><subsection id="ID229a9c0e2231421f965a63a68f8ba7f0"><enum>(c)</enum><header>Disclosure of exculpatory evidence</header><paragraph commented="no" display-inline="yes-display-inline" id="id6D27B2960C7E461C9809567311742E50"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="IDd2b7a239f9574af9b5dcaf10866b0fb1" indent="up1"><enum>(2)</enum><text>Exculpatory evidence that is classified may be provided solely to defense counsel, and not the accused, after in camera review by the military judge.</text> </paragraph><paragraph id="IDd2d3bc46174e46e1837c7262063124ce" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph><paragraph id="ID6bd329412048425ca54d8761e8d4b10d" indent="up1"><enum>(4)</enum><text>Any classified exculpatory evidence that is not disclosed to the accused under this subsection—</text> <subparagraph id="IDcc15cbb956ae454ebd790c771244605e"><enum>(A)</enum><text>shall be provided to military defense counsel;</text> </subparagraph><subparagraph id="IDee393e84b6ca412f992e68ec8a17be83"><enum>(B)</enum><text>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</text> </subparagraph><subparagraph id="ID36cb6f54e2af41999c39f743c691cc87"><enum>(C)</enum><text>shall be provided to the accused in a redacted or summary form, if it is possible to do so without compromising intelligence sources, methods, activities, or other national security interests.</text> </subparagraph></paragraph><paragraph id="IDca6c968a07214df7bf78243d9901b871" indent="up1"><enum>(5)</enum><text>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.</text> </paragraph></subsection></section><section id="ID81d67b04f8c2424eae31dd0de142dda4"><enum>949k.</enum><header>Defense of lack of mental responsibility</header> <subsection id="ID4d73009f4197449c9fab9a4d58536e88"><enum>(a)</enum><header>Affirmative defense</header><text>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.</text> </subsection><subsection id="IDb6ec20abd839493eaef7c2eeb94f6e58"><enum>(b)</enum><header>Burden of proof</header><text>The accused has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence.</text> </subsection><subsection id="IDf883417b9c9243d38c54471cb6be9380"><enum>(c)</enum><header>Findings following assertion of defense</header><text>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—</text> <paragraph id="ID96dee906ec7e4f2eb3a766db19606bfe"><enum>(1)</enum><text>guilty;</text> </paragraph><paragraph id="IDec03f2f1c034469099b9edf8a2ac1f91"><enum>(2)</enum><text>not guilty; or</text> </paragraph><paragraph id="ID1d3c54817a624cc3b7e15747b258e69d"><enum>(3)</enum><text>not guilty only by reason of lack of mental responsibility.</text> </paragraph></subsection><subsection id="IDb85b8a2b3ff1423d9a1cba097c0239bc"><enum>(d)</enum><header>Majority vote required for finding</header><text>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.</text> </subsection></section><section id="IDf156092b9554433f92393c11e1d3c196"><enum>949l.</enum><header> Voting and rulings</header> <subsection id="ID263e72f1bc7345d99061b7e5d693ff1f"><enum>(a)</enum><header>Vote by secret written ballot</header><text>Voting by members of a military commission on the findings and on the sentence shall be by secret written ballot.</text> </subsection><subsection id="ID5dbdfa982a2d4ff3a8954f4ee807a2c0"><enum>(b)</enum><header>Rulings</header><paragraph commented="no" display-inline="yes-display-inline" id="idFB387C227F4B44C79EDD891FB5369E96"><enum>(1)</enum><text>The military judge shall rule upon all questions of law, including the admissibility of evidence, and all interlocutory questions arising during the proceedings.</text> </paragraph><paragraph id="ID44b5e19ba5264e86bdf364fc527e8b35" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDb8dd5e9766814c3db86e5df578712a2c"><enum>(c)</enum><header>Instructions prior to vote</header><text>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—</text> <paragraph id="ID2f3c1ec2b5384eeba83f1b7b22b3ade9"><enum>(1)</enum><text>that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond reasonable doubt;</text> </paragraph><paragraph id="ID2644f38783384a1caa52b12fc6a4163b"><enum>(2)</enum><text>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;</text> </paragraph><paragraph id="ID6cfa5a750db24ea1b97810693bbc3f8d"><enum>(3)</enum><text>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</text> </paragraph><paragraph id="ID9b03cf276c5843b29c85562c43a6e9bb"><enum>(4)</enum><text>that the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the United States.</text> </paragraph></subsection></section><section id="ID332eb35ef7e14e74ab5471863e400f50"><enum>949m.</enum><header>Number of votes required</header> <subsection id="ID8df4fe2fb9614a8f8a378d5507f222ad"><enum>(a)</enum><header>Conviction</header><text>No person may be convicted of any offense, except as provided in section 949i(b) of this title or by concurrence of <fraction>2/3</fraction> of the members present at the time the vote is taken.</text> </subsection><subsection id="ID18495054e8d74babad5b59b3be380af3"><enum>(b)</enum><header>Sentences</header><paragraph commented="no" display-inline="yes-display-inline" id="id2DAD26A22F704944B169E17D9FB7E733"><enum>(1)</enum><text>Except as provided in paragraphs (2) and (3), sentences shall be determined by a military commission by the concurrence of <fraction>2/3</fraction> of the members present at the time the vote is taken.</text> </paragraph><paragraph id="IDa41a870e88134d9ca1b4219daba75d78" indent="up1"><enum>(2)</enum><text>No person may be sentenced to suffer death, except insofar as—</text> <subparagraph id="IDbb018fab0a164ba7857083c81559ef8c"><enum>(A)</enum><text>death has been expressly authorized under this chapter for an offense of which the accused has been found guilty;</text> </subparagraph><subparagraph id="ID50d13792c29d40b0aa9a66895d9a8720"><enum>(B)</enum><text>the charges referred to the commission expressly sought the penalty of death;</text> </subparagraph><subparagraph id="IDbbc1f1bfc9ac4c1bb08ff582a971821c"><enum>(C)</enum><text>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</text> </subparagraph><subparagraph id="ID304d1df53ba145c6a87c6cb763c77618"><enum>(D)</enum><text>all members of the military commission present at the time the vote was taken concurred in the sentence of death.</text> </subparagraph></paragraph><paragraph id="IDac9223a7645849ff8334d1a93e22b5db" indent="up1"><enum>(3)</enum><text>No person may be sentenced to life imprisonment or to confinement for more than 10 years, except by the concurrence of <fraction>3/4</fraction> of the members at the time the vote is taken.</text> </paragraph></subsection><subsection id="ID235321408f9a4a6dac4489637a7263b9"><enum>(c)</enum><header>Number of members required for penalty of death</header><paragraph commented="no" display-inline="yes-display-inline" id="id8196D644E5B4425281BA2B690821A5E9"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="IDef16fbdf599640b693d969cdafb4f8ab" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection></section><section id="ID6bc9c2b20b6e467cab3d2b9cdc3cb774"><enum>949n.</enum><header> Military commission to announce action</header><text display-inline="no-display-inline">A military commission shall announce its findings and sentence to the parties as soon as determined.</text> </section><section id="ID704c8769e3674fa8add1cfd86feda73a"><enum>949o.</enum><header> Record of trial</header> <subsection id="IDf6a8fea8bac44d12a3a20e7713f1416b"><enum>(a)</enum><header>Record; authentication</header><text>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.</text> </subsection><subsection id="ID8b15af113b504732b8caf00e5e192b86"><enum>(b)</enum><header>Complete record required</header><text>A complete record of the proceedings and testimony shall be prepared in every military commission established under this chapter.</text> </subsection><subsection id="ID1d4f0863e3424710a0c281ba5fba7c34"><enum>(c)</enum><header>Provision of copy to accused</header><text>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.</text> </subsection></section></subchapter><subchapter id="id3E0D73C49FA248F090F79393AE1E9725"><enum>V</enum><header>Sentences</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="IDe13c8d4ca1e44385918c233442f9a6de" level="section">949s. Cruel or unusual punishments prohibited.</toc-entry> <toc-entry idref="IDb0efc76b5cb742458ada935b0fe8634a" level="section">949t. Maximum limits.</toc-entry> <toc-entry idref="ID17784b3cfd4342129d115b29634a2a43" level="section">949u. Execution of confinement.</toc-entry> </toc> <section id="IDe13c8d4ca1e44385918c233442f9a6de"><enum>949s.</enum><header>Cruel or unusual punishments prohibited</header><text display-inline="no-display-inline">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.</text> </section><section id="IDb0efc76b5cb742458ada935b0fe8634a"><enum>949t.</enum><header> Maximum limits</header><text display-inline="no-display-inline">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.</text> </section><section id="ID17784b3cfd4342129d115b29634a2a43"><enum>949u.</enum><header>Execution of confinement </header> <subsection id="ID603cdca56c16425baf4972cc2aa8e1b3"><enum>(a)</enum><header>In general</header><text>Under such regulations as the Secretary may prescribe, a sentence of confinement adjudged by a military commission may be carried into execution by confinement—</text> <paragraph id="ID36eb95ad25354f81a6e059d7ca1a2766"><enum>(1)</enum><text>in any place of confinement under the control of any of the armed forces; or</text> </paragraph><paragraph id="ID9d1002c63e35405eb7158a91534e02df"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="ID1a0a8771a408495faf6f1cb0d9ded13f"><enum>(b)</enum><header>Treatment during confinement by other than the armed forces</header><text>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.</text> </subsection></section></subchapter><subchapter id="id50A659DCC55D44C88A5C86D4D0C56DF9"><enum>VI</enum><header>Post-trial procedure and review of military commissions</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="ID66d0bbea734247a0bb0e83229ca8d582" level="section">950a. Error of law; lesser included offense.</toc-entry> <toc-entry idref="ID4810a22df0ad444d9c945b92566fba33" level="section">950b. Review by the convening authority.</toc-entry> <toc-entry idref="IDfeb0ae4c0e7c47f099587e680b6e058a" level="section">950c. Waiver or withdrawal of appeal.</toc-entry> <toc-entry idref="ID4a60bdb5c9634171b98558ba7117d927" level="section">950d. Appeal by the United States.</toc-entry> <toc-entry idref="IDf712cd8575a44b96b701436516bdd677" level="section">950e. Rehearings.</toc-entry> <toc-entry idref="IDb1ebd68fa9c044db85a2a9d04987632a" level="section">950f. Review by Court of Military Commission review.</toc-entry> <toc-entry idref="ID49164345f0e540be9adb1486bd506889" level="section">950g. Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court of the United States.</toc-entry> <toc-entry idref="id05A88B5FD16041D8A0672E8BA5E985F0" level="section">950h. Appellate counsel.</toc-entry> <toc-entry idref="ID51f610e9ddde4d1d9d97442b37e16d17" level="section">950i. Execution of sentence; suspension of sentence.</toc-entry> <toc-entry idref="idA0FFE8FC081840ECA77D7E801A6750E0" level="section">950j. Finality of proceedings, findings, and sentences.</toc-entry> </toc> <section id="ID66d0bbea734247a0bb0e83229ca8d582"><enum>950a.</enum><header>Error of law; lesser included offense</header> <subsection id="ID439ef74099554204a68623597412369a"><enum>(a)</enum><header>Error of law</header><text>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.</text> </subsection><subsection id="ID7dc1206590f8428db79d43286989cd72"><enum>(b)</enum><header>Lesser included offense</header><text>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.</text> </subsection></section><section id="ID4810a22df0ad444d9c945b92566fba33"><enum>950b.</enum><header>Review by the convening authority</header> <subsection id="IDf587d26323254cfb829ad680f93d091d"><enum>(a)</enum><header>Notice to convening authority of findings and sentence</header><text>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.</text> </subsection><subsection id="ID80fe3caaa70c47078551699288b548b1"><enum>(b)</enum><header>Submittal of matters by accused to convening authority</header><paragraph commented="no" display-inline="yes-display-inline" id="idD8C5A49951614FCBB69E698A44C21890"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID889b1dc3f8f2476dae9d7b6155fdf4c4" indent="up1"><enum>(2)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="id473CA40E281E4459A0CB1CD7A1A8DAAA"><enum>(A)</enum><text>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.</text> </subparagraph><subparagraph id="IDc29e506fac304b9dac8042fb378094cb" indent="up1"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="IDd67e31673fd64eb1bb3510bc2130a5b0" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph></subsection><subsection id="IDe6163abbaba247aca7302cf8a436bd14"><enum>(c)</enum><header>Action by the convening authority</header><paragraph commented="no" display-inline="yes-display-inline" id="id3B9163A6E08C45918E615D0910E865F4"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID3215825e3c69427b8e797929e649abec" indent="up1"><enum>(2)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idD5061075BE9C4C33B3BBFD58C6942877"><enum>(A)</enum><text>Action on the sentence of a military commission shall be taken by the convening authority.</text> </subparagraph><subparagraph id="ID469bd11ac48545e0ae5f8c6d8f03f1b1" indent="up1"><enum>(B)</enum><text>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.</text> </subparagraph><subparagraph id="ID23754dc6fa014fea88b79febba81d820" indent="up1"><enum>(C)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="ID94717a9989d8487fa91d11cfe30933af" indent="up1"><enum>(3)</enum><text>Action on the findings of a military commission by the convening authority is not required. However, the convening authority, in his sole discretion, may—</text> <subparagraph id="ID1a28da7e6a894e68afb63a0058c9affc"><enum>(A)</enum><text>dismiss any charge or specification by setting aside a finding of guilty thereto; or</text> </subparagraph><subparagraph id="IDba55a2ab68814b10a1a868aed8013ed6"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph><paragraph id="ID56c81684ebfe4d76abcea334f5271452" indent="up1"><enum>(4)</enum><text>The convening authority shall serve on the accused or on defense counsel notice of any action taken by the convening authority under this subsection.</text> </paragraph></subsection><subsection id="ID8fbbfeae30844b75a19b9149f94b78e0"><enum>(d)</enum><header>Order of revision or rehearing</header><paragraph commented="no" display-inline="yes-display-inline" id="id99AC76BFEBE24394B2AF9723062C91E0"><enum>(1)</enum><text>Subject to paragraphs (2) and (3), the convening authority, in his sole discretion, may order a proceeding in revision or a rehearing.</text> </paragraph><paragraph id="ID8a1289da67704e64ac1ebd548076cf2e" indent="up1"><enum>(2)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="idBB1109D2143140029B2F988B68AFDE72"><enum>(A)</enum><text>Except as provided in subparagraph (B), a proceeding in revision may be ordered if—</text> <clause id="IDd333bf4e616e4336a94e1465c68f7edf" indent="up1"><enum>(i)</enum><text>there is an apparent error or omission in the record; or</text> </clause><clause id="ID3305661cbef3494f84d9b2c7f822628b" indent="up1"><enum>(ii)</enum><text>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.</text> </clause></subparagraph><subparagraph id="IDdfff527bec034086991ea230760fcf80" indent="up1"><enum>(B)</enum><text>In no case may a proceeding in revision—</text> <clause id="ID9dad63632b554d14972970e01eea480f"><enum>(i)</enum><text>reconsider a finding of not guilty of any specification or a ruling which amounts to a finding of not guilty;</text> </clause><clause id="ID4661185dfc4c4ca7b066be17ee38e88d"><enum>(ii)</enum><text>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; and</text> </clause><clause id="ID726c8a28438a4507bd386153e26d1787"><enum>(iii)</enum><text>increase the severity of the sentence unless the sentence prescribed for the offense is mandatory.</text> </clause></subparagraph></paragraph><paragraph id="ID1c5fef244c884e1cb251f9847f5e7f6c" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph></subsection></section><section id="IDfeb0ae4c0e7c47f099587e680b6e058a"><enum>950c.</enum><header>Waiver or withdrawal of appeal</header> <subsection id="IDfcd1a2ea209f4d2db6dce204cfd9a468"><enum>(a)</enum><header>Waiver of right of review</header><paragraph commented="no" display-inline="yes-display-inline" id="id7C3BDBC947684BF188BF41A12E93D503"><enum>(1)</enum><text>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.</text> </paragraph><paragraph id="ID814610ec33a94d48829b5c1d9bd0588c" indent="up1"><enum>(2)</enum><text>A waiver under paragraph (1) shall be signed by both the accused and by a defense counsel.</text> </paragraph><paragraph id="ID55f453a0a53b4ddd978fd04d882e7935" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph></subsection><subsection id="IDdd9b8215d66e4c5b9b779da202bcbd20"><enum>(b)</enum><header>Withdrawal of appeal</header><text>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.</text> </subsection><subsection id="IDa012af2fece14a5db5c44eedf9b65127"><enum>(c)</enum><header>Effect of waiver or withdrawal</header><text>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.</text> </subsection></section><section id="ID4a60bdb5c9634171b98558ba7117d927"><enum>950d.</enum><header>Appeal by the United States</header> <subsection id="IDd79a3f1a8cba4b54bd843b08bce6b91c"><enum>(a)</enum><header>Interlocutory appeal</header><paragraph commented="no" display-inline="yes-display-inline" id="id871B8F02E489497BB418A4B3B1A66C57"><enum>(1)</enum><text>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—</text> <subparagraph id="ID01fe06768d344a16b8974de705f25674" indent="up1"><enum>(A)</enum><text>terminates commission proceedings with respect to a charge or specification;</text> </subparagraph><subparagraph id="ID2183d999390147e5bbc96bc35dddb304" indent="up1"><enum>(B)</enum><text>excludes evidence that is substantial proof of a fact material in the proceeding; or</text> </subparagraph><subparagraph id="IDf6893c5a8df34849bd573800a1b0eedf" indent="up1"><enum>(C)</enum><text>relates to a matter under subsection (d), (e), or (f) of section 949d of this title.</text> </subparagraph></paragraph><paragraph id="ID6479b2f8771d41cabc5492d288884b08" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="IDa63c74c8a97d47ca98977ba1a1d5deaf"><enum>(b)</enum><header>Notice of appeal</header><text>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 5 days after the date of such order or ruling.</text> </subsection><subsection id="IDe91fb31364c54f659c578f1a5e0f1c30"><enum>(c)</enum><header>Appeal</header><text>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.</text> </subsection><subsection id="ID335f0770e8144f4f86d0834448dec3de"><enum>(d)</enum><header>Court of appeals</header><text>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.</text> </subsection></section><section id="IDf712cd8575a44b96b701436516bdd677"><enum>950e.</enum><header>Rehearings</header> <subsection id="ID1abea73bbe2c46dc925e6fca8e91440d"><enum>(a)</enum><header>Composition of military commission for rehearing</header><text>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.</text> </subsection><subsection id="ID0928307b2b59480b88f3c41ec98269c8"><enum>(b)</enum><header>Scope of rehearing</header><paragraph commented="no" display-inline="yes-display-inline" id="id457A69B17B874BDAAB1C9EDF451D7F09"><enum>(1)</enum><text>Upon a rehearing—</text> <subparagraph id="IDccd3d710369848758711436f42dd83b1" indent="up1"><enum>(A)</enum><text>the accused may not be tried for any offense of which he was found not guilty by the first commission; and</text> </subparagraph><subparagraph id="ID9db3518d5d2b41a5bc85e483951a5cf1" indent="up1"><enum>(B)</enum><text>no sentence in excess of or more than the original sentence may be imposed unless—</text> <clause id="IDc6fd9441be664adbbeb168f09ce69f95"><enum>(i)</enum><text>the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings; or</text> </clause><clause id="IDc8a791fa7bdf45bf906e15f6cfecfd2d"><enum>(ii)</enum><text>unless the sentence prescribed for the offense is mandatory.</text> </clause></subparagraph></paragraph><paragraph id="ID155112147fe044b68a8bfb036eaaacd0" indent="up1"><enum>(2)</enum><text>Upon a rehearing, if the sentence approved after the first commission was in accordance with a pre-trial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications upon which the pre-trial agreement was based, or otherwise does not comply with pre-trial agreement, the sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first commission.</text> </paragraph></subsection></section><section id="IDb1ebd68fa9c044db85a2a9d04987632a"><enum>950f.</enum><header>Review by Court of Military Commission Review</header> <subsection id="ID6d068cc2fa7b4493b3b6437a5fb94b49"><enum>(a)</enum><header>Court established</header><paragraph commented="no" display-inline="yes-display-inline" id="id59F04A7C8D6742B09C0A1327C3420478"><enum>(1)</enum><text>The Secretary shall establish a Court of Military Commission Review which shall be composed of 1 or more panels, and each such panel shall be composed of not less than three appellate military judges.</text> </paragraph><paragraph id="IDc595a59baf8348f982ae964963f73397" indent="up1"><enum>(2)</enum><text>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.</text> </paragraph></subsection><subsection id="ID5011978622304e5b973c58b7f607384d"><enum>(b)</enum><header>Composition of the court</header><paragraph commented="no" display-inline="yes-display-inline" id="id0B34CEB9FA08454FB425E968FB7589D2"><enum>(1)</enum><text>The Secretary shall assign appellate military judges to a Court of Military Commission Review.</text> </paragraph><paragraph id="ID0c2bffa55d274a01bc9a82256c88cb96" indent="up1"><enum>(2)</enum><text>Each appellate military judge shall meet the qualifications for military judges prescribed by section 948j(b) of this title or shall be a civilian with comparable qualifications.</text> </paragraph><paragraph id="ID41faf89f4bbf42b79137e0d05fa37da0" indent="up1"><enum>(3)</enum><text>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.</text> </paragraph></subsection><subsection id="IDdcc09322bbee4da99a9191ae545bfbd8"><enum>(c)</enum><header>Right of appeal</header><text>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.</text> </subsection><subsection id="IDa109817702d14a71970713b3b7c133c1"><enum>(d)</enum><header>Scope of review</header><text>In ruling on an appeal under this section, the Court of Military Commission Review may act only with respect to matters of law.</text> </subsection></section><section id="ID49164345f0e540be9adb1486bd506889"><enum>950g.</enum><header>Review by the United States Court of Appeals for the District of Columbia Circuit and the Supreme Court of the United States</header> <subsection id="IDf178d55d3a0844efb9ed31c2cdbd7f9d"><enum>(a)</enum><header>In general</header><paragraph commented="no" display-inline="yes-display-inline" id="idB50760725F7E4367B6828FFFFF688DB4"><enum>(1)</enum><subparagraph commented="no" display-inline="yes-display-inline" id="id73E6B2E7D5C94EC3ABA2440267438CEB"><enum>(A)</enum><text>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.</text> </subparagraph><subparagraph commented="no" display-inline="no-display-inline" id="ID0a1f72308657443582ebdb6d307fd566" indent="up2"><enum>(B)</enum><text>The Court of Appeals shall not review the final judgment until all other appeals under this chapter have been waived or exhausted.</text> </subparagraph></paragraph><paragraph id="ID047089d09789404d9c6c561e225082b7" indent="up1"><enum>(2)</enum><text>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—</text> <subparagraph id="ID179e8b3e37aa4283b229d404cec4679a"><enum>(A)</enum><text>written notice of the final decision of the Court of Military Commission Review is served on the accused or on defense counsel; or</text> </subparagraph><subparagraph id="IDde4e79e38f484220bb4807bc2587cf68"><enum>(B)</enum><text>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.</text> </subparagraph></paragraph></subsection><subsection id="ID170ca255b2834e06a556b9f65e4f4a9f"><enum>(b)</enum><header>Review by Supreme Court</header><text>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.</text> </subsection></section><section id="id05A88B5FD16041D8A0672E8BA5E985F0"><enum>950h.</enum><header>Appellate counsel</header> <subsection id="IDe15fb66c20614e55923535f025cc1e52"><enum>(a)</enum><header>Appointment</header><text>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.</text> </subsection><subsection id="ID603a6ce19ef34a328df1f1312ed75485"><enum>(b)</enum><header>Representation of United States</header><text>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.</text> </subsection><subsection id="IDecafe8a4dff041df838916e721cdeeba"><enum>(c)</enum><header>Representation of accused</header><text>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.</text> </subsection></section><section id="ID51f610e9ddde4d1d9d97442b37e16d17"><enum>950i.</enum><header>Execution of sentence; suspension of sentence</header> <subsection id="ID31cf3db1920f456d97915f6f59fdb3c1"><enum>(a)</enum><header>Execution of sentence of death only upon approval by the President</header><text>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.</text> </subsection><subsection id="IDe02f59d7610f4ad198fb93f3ba5eb978"><enum>(b)</enum><header>Execution of sentence of death only upon final judgment of legality of proceedings</header><paragraph commented="no" display-inline="yes-display-inline" id="id8DF87886C5C34768979751C0A42E18A9"><enum>(1)</enum><text>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)).</text> </paragraph><paragraph id="id24B07212363642C8AE621A86E2F61655" indent="up1"><enum>(2)</enum><text>A judgment as to legality of the proceedings is final for purposes of paragraph (1) when—</text> <subparagraph id="idA0B7CF3870B7487489A298EFE79DD8A3"><enum>(A)</enum><text>review is completed by the Court of Military Commission Review and—</text> <clause id="idF514CFB546C34DA59D84E5033D166E40"><enum>(i)</enum><text>the time for the accused to file a petition for review by the Court of Appeals for the District of Columbia Circuit has expired;</text> </clause><clause id="idD12AC96F859741658A93535C75666BE6"><enum>(ii)</enum><text>the accused has not filed a timely petition for such review; and</text> </clause><clause id="idDF229B722A2041B18A5BD460ADBF44F4"><enum>(iii)</enum><text>the case is not otherwise under review by that Court; or</text> </clause></subparagraph><subparagraph id="id2FB58BB2E20A45BE9AAAA94DFD29F2AC"><enum>(B)</enum><text>review is completed in accordance with the judgment of the Court of Appeals for the District of Columbia Circuit and—</text> <clause id="id07FE38B7063548AB88D0E8120ACDD3C5"><enum>(i)</enum><text>a petition for a writ of certiorari is not timely filed;</text> </clause><clause id="idB1A4F5EA9CD84C72920B865F376D0E1A"><enum>(ii)</enum><text>such a petition is denied by the Supreme Court; or</text> </clause><clause id="idF09920215A934C89A474C1DFBBF58171"><enum>(iii)</enum><text>review is otherwise completed in accordance with the judgment of the Supreme Court.</text> </clause></subparagraph></paragraph></subsection><subsection id="idDD455A957D4642299694E8FA223B8DAF"><enum>(c)</enum><header>Suspension of sentences</header><text>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.</text> </subsection></section><section id="idA0FFE8FC081840ECA77D7E801A6750E0"><enum>950j.</enum><header>Finality of proceedings, findings, and sentences</header> <subsection id="ID6a190314f48645989da8e8865100962a"><enum>(a)</enum><header>Finality</header><text>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 the authority of the President.</text> </subsection><subsection id="ID2ec7dde5fa1e4ebdb68e775a11ffecc6"><enum>(b)</enum><header>Provisions of chapter sole basis for review of military commission procedures and actions</header><text>Except as otherwise provided in this chapter, and notwithstanding any other law (including section 2241 of title 28 or any other habeas corpus provision), no court, justice, or judge shall have jurisdiction to hear or consider any claim or cause of action whatsoever, including any action pending on or filed after the date of 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.</text> </subsection></section></subchapter><subchapter id="id4F99047E4FFD48DBB2EE82F18D4E01AD"><enum>VII</enum><header>Punitive matters</header> <toc> <toc-entry level="section">Sec. </toc-entry> <toc-entry idref="IDbc2a49012af64f11b3f06a6c5106e9b9" level="section">950p. Substantive offenses generally.</toc-entry> <toc-entry idref="IDcd106b401b1b44209ebb56643afb6085" level="section">950q. Principals.</toc-entry> <toc-entry idref="ID587b93e8277641a4a0bbd784c3065fb6" level="section">950r. Accessory after the fact.</toc-entry> <toc-entry idref="IDa9f6729339b24faf924615d1681e0dc3" level="section">950s. Conviction of lesser offenses.</toc-entry> <toc-entry idref="IDf96d02c1caa74ff3ac3900e010e93180" level="section">950t. Attempts.</toc-entry> <toc-entry idref="ID942566e88ce64b1d8220e0bd621cdce7" level="section">950u. Solicitation.</toc-entry> <toc-entry idref="ID89544c33cce04d159ee86a65f53e5df7" level="section">950v. Crimes triable by military commission.</toc-entry> <toc-entry idref="IDd339330332064dac95782489122c75ac" level="section">950w. Perjury and obstruction of justice.</toc-entry> <toc-entry idref="IDe89a2c3925274f90b7d188b17f5dbd33" level="section">950x. Contempt.</toc-entry> </toc> <section id="IDbc2a49012af64f11b3f06a6c5106e9b9"><enum>950p.</enum><header>Substantive offenses generally</header> <subsection id="ID05fbeb8248cf4ef78f6f28606c94bc8c"><enum>(a)</enum><header>Purpose</header><text>The following provisions codify offenses that have traditionally been triable by military commissions. This chapter does not establish new crimes that did not exist before its establishment, but rather codifies those crimes for trial by military commission.</text> </subsection><subsection id="ID84cf4f8ef49c45179903a721565b9a74"><enum>(b)</enum><header>Effect</header><text>Because these provisions are declarative of existing law, they do not preclude trial for crimes that occurred prior to their effective date.</text> </subsection></section><section id="IDcd106b401b1b44209ebb56643afb6085"><enum>950q.</enum><header>Principals</header><text display-inline="no-display-inline">Any person is punishable as a principal under this chapter who—</text> <paragraph id="ID24fbf50e4cd94260a6bef50a7ad88f93"><enum>(1)</enum><text>commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission;</text> </paragraph><paragraph id="idB877C80F94FF406A98FFC0BA2C9FB1A0"><enum>(2)</enum><text>causes an act to be done which if directly performed by him would be punishable by this chapter; or</text> </paragraph><paragraph id="ID907549b4057e4a9caefadbf70f1b4950"><enum>(3)</enum><text>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.</text> </paragraph></section><section id="ID587b93e8277641a4a0bbd784c3065fb6"><enum>950r.</enum><header>Accessory after the fact</header><text display-inline="no-display-inline">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.</text> </section><section id="IDa9f6729339b24faf924615d1681e0dc3"><enum>950s.</enum><header>Conviction of lesser offenses</header><text display-inline="no-display-inline">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.</text> </section><section id="IDf96d02c1caa74ff3ac3900e010e93180"><enum>950t.</enum><header>Attempts</header> <subsection id="ID5658bc2dbd124cfebadc316513849691"><enum>(a)</enum><header>In general</header><text>Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a military commission may direct.</text> </subsection><subsection id="ID50e2091a53b34422981406a4ba298c59"><enum>(b)</enum><header>Scope of offense</header><text>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.</text> </subsection><subsection id="ID57945886923b4d3c86533ef97b714c76"><enum>(c)</enum><header>Effect of consummation</header><text>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.</text> </subsection></section><section id="ID942566e88ce64b1d8220e0bd621cdce7"><enum>950u.</enum><header>Solicitation</header><text display-inline="no-display-inline">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.</text> </section><section id="ID89544c33cce04d159ee86a65f53e5df7"><enum>950v.</enum><header>Crimes triable by military commission</header> <subsection id="ID751690081b5c4a7191d88f06785b5bee"><enum>(a)</enum><header>Definitions and construction</header><paragraph commented="no" display-inline="yes-display-inline" id="id6464954E4D1E4C4FAD3351DC48E04540"><enum>(1)</enum><text>For purposes of this chapter, the term <term>military objective</term> 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.</text> </paragraph><paragraph id="idBB82DFEBAF334854A8C9D5BDD3E8B5A0" indent="up1"><enum>(2)</enum><text>For purposes of this section only, <term>protected person</term> 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.</text> </paragraph><paragraph id="idFDF92D0439854BD587C9B6638A1314B5" indent="up1"><enum>(3)</enum><text>For purposes of this chapter, the term <term>protected property</term> 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.</text> </paragraph><paragraph id="id2D71ED2DABF7486B85E2C19389582A16" indent="up1"><enum>(4)</enum><text>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.</text> </paragraph></subsection><subsection id="ID46c94ab8cbf940b7b18e1ab7c02d9afb"><enum>(b)</enum><header>Offenses</header><text>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:</text> <paragraph id="ID86e6316c92f349159ccd39ff22862158"><enum>(1)</enum><header>Murder of protected persons</header><text>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.</text> </paragraph><paragraph id="ID205f4e96897e4d42ad4a40d02a17f3a7"><enum>(2)</enum><header>Attacking civilians</header><text>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.</text> </paragraph><paragraph id="ID32b1b69192444fccb142be8a2be39174"><enum>(3)</enum><header>Attacking civilian objects</header><text>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.</text> </paragraph><paragraph id="ID075de61be8a7445da16df1e726f3fcdf"><enum>(4)</enum><header>Attacking protected property</header><text>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.</text> </paragraph><paragraph id="IDe3ff690d87a54309957e8fa6b66bd644"><enum>(5)</enum><header>Pillaging</header><text>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.</text> </paragraph><paragraph id="ID44a610030bf84fb4949ed113377ba4f0"><enum>(6)</enum><header>Denying quarter</header><text>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.</text> </paragraph><paragraph id="ID64c1f8ea40804b1db6030f91bc826d73"><enum>(7)</enum><header>Taking hostages</header><text>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.</text> </paragraph><paragraph id="IDe049eae047af493493663ad11e465ea4"><enum>(8)</enum><header>Employing poison or analogous weapons</header><text>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.</text> </paragraph><paragraph id="ID47b4faebc12e4564b0987cab259639fe"><enum>(9)</enum><header>Using protected persons as shields</header><text>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.</text> </paragraph><paragraph id="ID0de43b97c0cb4ed1b3f199be9f581f22"><enum>(10)</enum><header>Using protected property as shields</header><text>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.</text> </paragraph><paragraph id="IDc238e5dd914741778afe03b55cca79f6"><enum>(11)</enum><header>Torture</header><text>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. The term <term>severe mental pain or suffering</term> has the meaning provided in paragraph (2) of section 2340 of title 18.</text> </paragraph><paragraph id="IDf866d9431a3a4ec1ab08471a0f857732"><enum>(12)</enum><header>Cruel or inhuman treatment</header><text>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. The term <term>severe mental pain or suffering</term> has the meaning provided in paragraph (2) of section 2340 of title 18.</text> </paragraph><paragraph id="ID35c9b1e6826a4f5794bfc9c9d3b9b93e"><enum>(13)</enum><header>Intentionally causing serious bodily injury</header><text>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. The term <term>serious bodily injury</term> has the meaning provided in subsection (b)(2) of section 113 of title 18.</text> </paragraph><paragraph id="ID4a7106dff14442cb95b769a991e648b1"><enum>(14)</enum><header>Mutilating or maiming</header><text>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.</text> </paragraph><paragraph id="ID2c1fa7e6e72545a4b27b8d67e856a8cd"><enum>(15)</enum><header>Murder in violation of the law of war</header><text>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.</text> </paragraph><paragraph id="ID2ee9ded96c11443b9607f927c62bf947"><enum>(16)</enum><header>Destruction of property in violation of the law of war</header><text>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.</text> </paragraph><paragraph id="IDc7cb53d9c1b64f8f938557da560d639d"><enum>(17)</enum><header>Using treachery or perfidy</header><text>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.</text> </paragraph><paragraph id="IDa9059c35bfdf4a8abe97c22c96aec5ff"><enum>(18)</enum><header>Improperly using a flag of truce</header><text>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.</text> </paragraph><paragraph id="ID343a69f2ec92409c864b8d8e3d7d40fe"><enum>(19)</enum><header>Improperly using a distinctive emblem</header><text>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.</text> </paragraph><paragraph id="ID243ad83af3fe4cde883ed95df8f66ea9"><enum>(20)</enum><header>Intentionally mistreating a dead body</header><text>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.</text> </paragraph><paragraph id="ID90344661b4874b74928669f382d57f12"><enum>(21)</enum><header>Rape</header><text>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.</text> </paragraph><paragraph id="ID6db83d1c35cc42168f215373d3969035"><enum>(22)</enum><header>Hijacking or hazarding a vessel or aircraft</header><text>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.</text> </paragraph><paragraph id="ID79635d661d96455396fab7726e8716ab"><enum>(23)</enum><header>Terrorism</header><text>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, the penalty of death.</text> </paragraph><paragraph id="ID41564dda3dbc4a73b80030848cbb48e7"><enum>(24)</enum><header>Providing material support for terrorism</header><text>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)), or who intentionally provides material support or resources to an international terrorist organization engaged in hostilities against the United States, knowing that such organization has engaged or engages in terrorism (as defined in subsection (b)(23)), 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 <term>material support or resources</term> has the meaning provided in subsection (b) of section 2339A of title 18.</text> </paragraph><paragraph id="ID4c0b0f360a57440bb424c32ae2650ead"><enum>(25)</enum><header>Wrongfully aiding the enemy</header><text>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 cobelligerents shall be guilty of the offense of wrongfully aiding the enemy and shall be subject to whatever punishment the commission may direct.</text> </paragraph><paragraph id="IDc06e8418bfd04615a3a5d5f5aee99ee2"><enum>(26)</enum><header>Spying</header><text>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 cobelligerents, shall be guilty of the offense of spying and shall be subject to whatever punishment the commission may direct, including the penalty of death.</text> </paragraph><paragraph id="ID5f27654963794eb3a50e67269f614032"><enum>(27)</enum><header>Conspiracy</header><text>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.</text> </paragraph></subsection></section><section id="IDd339330332064dac95782489122c75ac"><enum>950w.</enum><header>Perjury and obstruction of justice</header><text display-inline="no-display-inline">The military commissions also may try offenses and impose punishments for perjury, false testimony, or obstruction of justice related to military commissions.</text> </section><section id="IDe89a2c3925274f90b7d188b17f5dbd33"><enum>950x.</enum><header>Contempt</header><text display-inline="no-display-inline">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.</text> </section></subchapter></chapter><after-quoted-block>.</after-quoted-block></quoted-block> </paragraph><paragraph id="ID1e7cca27d5fc4872b874a3b033f58ca4"><enum>(2)</enum><header>Tables of chapters amendments</header><text>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:</text> <quoted-block display-inline="no-display-inline" id="idD84BBB6F196946D0B1312536AC3A06A1" style="OLC"> <toc> <toc-entry bold="off" level="chapter">CHAPTER 47A—MILITARY COMMISSIONS</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER I—GENERAL PROVISIONS</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER II—COMPOSITION OF COURTS-MARTIAL</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER III—PRE-TRIAL PROCEDURE</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER IV—TRIAL PROCEDURE</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER V—SENTENCES</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER VI—POST-TRIAL PROCEDURE AND REVIEW OF MILITARY COMMISSIONS</toc-entry> <toc-entry bold="off" level="subchapter">SUBCHAPTER VII—PUNITIVE MATTERS</toc-entry> </toc> <after-quoted-block>.</after-quoted-block></quoted-block> </paragraph></subsection><subsection id="idE4638192D9684E4EA98A637FF0C1544E"><enum>(b)</enum><header>Submittal of procedures to Congress</header> <paragraph id="IDb0b11f2f264d4b4ea1ee9bb6f4d430e5"><enum>(1)</enum><header>Submittal of procedures</header><text>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)).</text> </paragraph><paragraph id="ID1a6e695fb9714b818e7415247516ec31"><enum>(2)</enum><header>Submittal of modifications</header><text>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.</text> </paragraph></subsection></section><section id="ID4a9af5971c454fb1ab18400c0e2b1122"><enum>105.</enum><header>Judicial review</header><text display-inline="no-display-inline">Section 2241 of title 28, United States Code, is amended by replacing subsection (e) with the following:</text> <quoted-block display-inline="no-display-inline" id="idA58038AE95BA448C89B50B56ABF71782" style="OLC"> <subsection id="IDb2cea08e62e84315b885f83c5bea3d1b"><enum>(e)</enum><text>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 subsection, 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:</text> <paragraph id="IDca150f4131a349c4bfd6539c73aea1d1"><enum>(1)</enum><header>Combatant status review tribunals</header><text>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.</text> </paragraph><paragraph id="IDd8d5b5af21cb49979505104cb229add5"><enum>(2)</enum><header>Military commissions</header><text>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.</text> </paragraph><paragraph id="ID66c56187bd784e33ab6b3052bbc2ccac"><enum>(3)</enum><header>Information considered</header><text>The court may consider classified information submitted in camera and ex parte in making any determination under this section.</text> </paragraph></subsection><after-quoted-block>.</after-quoted-block></quoted-block> </section><section id="id78C0C728314C467F84E0FFF225CE33A5"><enum>106.</enum><header>Satisfaction of treaty obligations</header> <subsection id="IDe864cb2e21fb4508ac647468e8c8a292"><enum>(a)</enum><header>In general</header><text>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 sections 1(b) and 1(d) of such Article.</text> </subsection><subsection id="ID7967a866586c474bb34eed41d8335249"><enum>(b)</enum><header>Rights not judicially enforceable</header> <paragraph id="IDffba37621ef34360a39caabaa89d83b5"><enum>(1)</enum><header>In general</header><text>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.</text> </paragraph><paragraph id="ID2bff65d102694fa5a133730852aaa937"><enum>(2)</enum><header>Construction</header><text>Paragraph (1) may not be construed to affect the obligations of the United States under the Geneva Conventions.</text> </paragraph></subsection><subsection id="IDab4fb5c40d4c4bd89e89c0386d537c29"><enum>(c)</enum><header>Geneva conventions defined</header><text>In this section, the term <term>Geneva Conventions</term> means the international conventions signed at Geneva on August 12, 1949, including common Article 3.</text> </subsection></section><section id="IDea3318dfeaee47458386a576255da695"><enum>107.</enum><header>War Crimes Act amendment</header><text display-inline="no-display-inline">Section 2441 of title 18, United States Code, is amended by replacing subsection (c)(3) with the following:</text> <quoted-block display-inline="no-display-inline" id="idA7AB5FB769C445B8B190968A6649E9D5" style="USC"> <paragraph id="ID953c3c42c10d4660989402f249ff1b36"><enum>(3)</enum><text>which constitutes any of the following serious violations of common Article 3 of the international conventions signed at Geneva on August 12, 1949, when committed in the context of and in association with an armed conflict not of an international character:</text> <subparagraph id="ID5af43f62cf894e76bde83832bf3ba9c4"><enum>(A)</enum><header>Torture</header><text>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. The term <term>severe mental pain or suffering</term> has the meaning provided in paragraph (2) of section 2340 of this title.</text> </subparagraph><subparagraph id="IDaf360c4b22164c6885ade2c9eb65cc11"><enum>(B)</enum><header>Cruel or inhuman treatment</header><text>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. The term <term>severe mental pain or suffering</term> has the meaning provided in paragraph (2) of section 2340 of this title.</text> </subparagraph><subparagraph id="ID9336e6daa26f4daf981332854228ef2e"><enum>(C)</enum><header>Performing biological experiments</header><text>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.</text> </subparagraph><subparagraph id="IDc1e97dc2f20d48708ff5e7eb4ea3470c"><enum>(D)</enum><header>Murder</header><text>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.</text> </subparagraph><subparagraph id="IDb0a9582505c14f8faf704a5f45f8c963"><enum>(E)</enum><header>Mutilation or maiming</header><text>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.</text> </subparagraph><subparagraph id="ID8a483f5259a3461ebd32aa02316d13f4"><enum>(F)</enum><header>Intentionally causing great suffering or serious injury</header><text>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. The term <term>serious bodily injury</term> has the meaning provided in subsection (b)(2) of section 113 of this title.</text> </subparagraph><subparagraph id="ID339828f1b7d04af891b4a7e3811138f7"><enum>(G)</enum><header>Rape</header><text>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.</text> </subparagraph><subparagraph id="ID87ae5dd2b75c454baaca5b53cef8ae6c"><enum>(H)</enum><header>Sexual assault or abuse</header><text>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, the term <term>sexual contact</term> has the meaning provided in paragraph (3) of section 2246 of this title.</text> </subparagraph><subparagraph id="ID423727deef1c484eb1e02711cb8716bc"><enum>(I)</enum><header>Taking hostages</header><text>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.</text> </subparagraph></paragraph><after-quoted-block>.</after-quoted-block></quoted-block> </section><section id="IDce80227160bc414aa91b3bf39ee75abb"><enum>108.</enum><header>Conforming amendments</header> <subsection id="ID00442d5e93394b0790a33d07fedde4d8"><enum>(a)</enum><text>Section 1004(b) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note) is amended to conform with this title as follows—</text> <paragraph id="ID51a8a6c31bdf42afa5674636763f3ce4"><enum>(1)</enum><text>by replacing <quote>may provide</quote> with <quote>shall provide</quote>;</text> </paragraph><paragraph id="ID708a6244cca14341bfff31ba791d1337"><enum>(2)</enum><text>by adding <quote>or investigation</quote> after <quote>criminal prosecution</quote>; and</text> </paragraph><paragraph id="ID8c90776da32a447eaf772845c77f7c2f"><enum>(3)</enum><text>by adding <quote>whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies,</quote> after <quote>described in that subsection</quote>.</text> </paragraph></subsection><subsection id="IDaa448cc497404229b14d5cc364c91cae"><enum>(b)</enum><text>Section 1005 of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note) is amended to conform with this title as follows—</text> <paragraph id="ID859d4929a43246329a906a3b6303a8e4"><enum>(1)</enum><text>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;</text> </paragraph><paragraph id="ID923d679b6f0e4d338287c46a3fd13cc3"><enum>(2)</enum><text>in subsection (e)(3)(A), by striking <quote>pursuant to Military Commission Order No. 1, August 31, 2005 (or any successor military order)</quote> and inserting <quote>by a military commission under chapter 47a of title 10, United States Code</quote>;</text> </paragraph><paragraph id="ID110e38e152d84ea09b16e742cb4ff6df"><enum>(3)</enum><text>in former subsection (e)(3)(C)(i), by striking <quote>pursuant to the military order</quote> and inserting <quote>by a military commission</quote>;</text> </paragraph><paragraph id="ID68799b573cd7465fa085793b21004f1b"><enum>(4)</enum><text>in former subsection (e)(3)(C)(ii), by striking <quote>pursuant to such military order</quote> and inserting <quote>by such a military commission</quote>;</text> </paragraph><paragraph id="IDcbafde240d5546bf837ea6e648f8155e"><enum>(5)</enum><text>in former subsection (e)(3)(D)(i) by striking <quote>specified in the military order</quote> and inserting <quote>specified for a military commission</quote>;</text> </paragraph><paragraph id="IDfada441ebd61491eaa3ea16415a96c10"><enum>(6)</enum><text>in former subsection (e)(3)(C)(i), by striking <quote>at Guantanamo Bay, Cuba</quote>; and</text> </paragraph><paragraph id="ID2984c7f595804e4ba820bb22c62b4894"><enum>(7)</enum><text>in former subsection (e)(2)(B)(i) by replacing <quote>the Department of Defense at Guantanamo Bay, Cuba</quote> with <quote>United States</quote>.</text> </paragraph></subsection><subsection id="IDd4e009ce6524422bac33b215a2ff15c2"><enum>(c)</enum><text>Section 802 of title 10, United States Code, is amended to conform with this title by adding, <quote>(a)(13) Lawful enemy combatants who violate the law of war.</quote>.</text> </subsection><subsection id="ID2257c201f980486e9edea5c84d2aa17f"><enum>(d)</enum><text>Section 821 of title 10, United States Code, is amended to conform with this title by striking the phrase <quote>by statute or the law of war</quote>.</text> </subsection><subsection id="IDd5f8f4b1d8044d1e8997b82865e7619e"><enum>(e)</enum><text>Section 836 of title 10, United States Code, is amended to conform with this title as follows—in subsection (a), by replacing <quote>military commissions and other military tribunals</quote> with <quote>and other military tribunals (excluding military commissions)</quote>.</text> </subsection></section><section id="ID63dfd98a18684b31815e332fd5ccb374"><enum>109.</enum><header>Retroactive application</header><text display-inline="no-display-inline">This title shall take effect on the date of the enactment of this title 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.</text> </section><section id="ID8c24c8854ed0457c9f0b67a3a2fc8e0d"><enum>110.</enum><header>Severability</header><text display-inline="no-display-inline">If any provision of this title, or the application of a provision to any person or circumstance, is held to be unconstitutional, the remainder of this title, and the application of the provisions to any other person or circumstance, shall not be affected thereby.</text> </section><enum>II</enum><header>Foreign Intelligence Surveillance</header> <section id="id37225EF5B10E437192D22D3B94A0EF71"><enum>201.</enum><header>Short title</header><text display-inline="no-display-inline">This title may be cited as the <quote><short-title>National Security Surveillance Act of 2006</short-title></quote>.</text> </section><section id="idCE521B7C948546729500A9C1211F0DC7"><enum>202.</enum><header>Findings</header><text display-inline="no-display-inline">Congress finds the following:</text> <paragraph id="IDf0d0d43291a048fea65714cc006977fe"><enum>(1)</enum><text>After the terrorist attacks of September 11, 2001, President Bush authorized the National Security Agency to intercept communications between people inside the United States, including American citizens, and terrorism suspects overseas.</text> </paragraph><paragraph id="ID04da069dac494b429b1098c35c92b4ab"><enum>(2)</enum><text>One of the lessons learned from September 11, 2001, is that the enemies who seek to greatly harm and terrorize our Nation utilize technologies and techniques that defy conventional law enforcement practices.</text> </paragraph><paragraph id="ID5ae25eb8308a4db98ef6826a73ea3720"><enum>(3)</enum><text>For days before September 11, 2001, the Federal Bureau of Investigation suspected that confessed terrorist Zacarias Moussaoui was planning to hijack a commercial plane. The Federal Bureau of Investigation, however, could not meet the requirements to obtain a traditional criminal warrant or an order under the Foreign Intelligence Surveillance Act of 1978 to search his laptop computer (Report of the 9/11 Commission 273–76).</text> </paragraph><paragraph id="IDf7df69ea0a434d368a25856393f9903b"><enum>(4)</enum><text>The President, as the constitutional officer most directly responsible for protecting the United States from attack, requires the ability and means to detect and track an enemy that can master and exploit modern technology.</text> </paragraph><paragraph id="ID2c96d4cf1365493fa11142582faebbe0"><enum>(5)</enum><text>It is equally essential, however, that in protecting the United Sates against our enemies, the President does not compromise the very civil liberties that he seeks to safeguard. As Justice Hugo Black observed, <quote>The President's power, if any, to issue [an] order must stem either from an Act of Congress or from the Constitution itself.</quote> Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion by Black, J.). Similarly, in 2004, Justice Sandra Day O'Connor explained in her plurality opinion for the Supreme Court in Hamdi v. Rumsfeld: <quote>We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens.</quote> Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted).</text> </paragraph><paragraph id="IDea66ebbf364646f8a86b5356883d549b"><enum>(6)</enum><text>When deciding issues of national security, it is in our Nation's best interest that, to the extent feasible, all 3 branches of the Federal Government should be involved. This helps guarantee that electronic surveillance programs do not infringe on the constitutional rights of Americans, while at the same time ensuring that the President has all the powers and means necessary to detect and track our enemies and protect our Nation from attack.</text> </paragraph><paragraph id="ID5027c5098da349088a8d3d2d976b0ab2"><enum>(7)</enum><text>As Justice Sandra Day O'Connor explained in her plurality opinion for the Supreme Court in Hamdi v. Rumsfeld, <quote>Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all 3 branches when individual liberties are at stake.</quote> Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted).</text> </paragraph><paragraph id="ID0be446d2202a4a149d77c535dd85f90f"><enum>(8)</enum><text>Similarly, Justice Jackson famously explained in his Youngstown concurrence: <quote>When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate... When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility... When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive Presidential control in such a case only by disabling the Congress from acting upon the subject.</quote> Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).</text> </paragraph><paragraph id="ID70e9c41371354f65bfe893ba2387cd83"><enum>(9)</enum><text>Congress clearly has the authority to enact legislation with respect to electronic surveillance programs. The Constitution provides Congress with broad powers of oversight over national security and foreign policy, under article I, section 8 of the Constitution of the United States, which confers on Congress numerous powers, including the powers—</text> <subparagraph id="ID76bd2cf1ed6d4d75823b49aec4b2672f"><enum>(A)</enum><text><quote>To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water</quote>;</text> </subparagraph><subparagraph id="ID47b8f97ee7c547adb7048cd36d8215f1"><enum>(B)</enum><text><quote>To raise and support Armies</quote>;</text> </subparagraph><subparagraph id="ID23fe98fde06547c2a55cacb39e041ec5"><enum>(C)</enum><text><quote>To provide and maintain a Navy</quote>;</text> </subparagraph><subparagraph id="id0560C625D55A40819B97AB5C0D14891B"><enum>(D)</enum><text><quote>To make Rules for the Government and Regulation of the land and naval Forces</quote>;</text> </subparagraph><subparagraph id="IDe70abd0a0a1f4442968e835a08b5cdc4"><enum>(E)</enum><text><quote>To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions</quote>; and</text> </subparagraph><subparagraph id="IDd637d40089a844f797a62099d509f18e"><enum>(F)</enum><text><quote>To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States</quote>.</text> </subparagraph></paragraph><paragraph id="IDa843ddd890af48868d0a87551f75677f"><enum>(10)</enum><text>While Attorney General Alberto Gonzales explained that the executive branch reviews the electronic surveillance program of the National Security Agency every 45 days to ensure that the program is not overly broad, it is the belief of Congress that approval and supervision of electronic surveillance programs should be conducted outside of the executive branch, by the article III court established under section 103 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1803). It is also the belief of Congress that it is appropriate for an article III court to pass upon the constitutionality of electronic surveillance programs that may implicate the rights of Americans.</text> </paragraph><paragraph id="IDa3d4a7543a754bab9c916b9a916aa89e"><enum>(11)</enum><text>The Foreign Intelligence Surveillance Court is the proper court to approve and supervise classified electronic surveillance programs because it is adept at maintaining the secrecy with which it was charged and it possesses the requisite expertise and discretion for adjudicating sensitive issues of national security.</text> </paragraph><paragraph id="ID82a8b75265224347899d425c3e07ad08"><enum>(12)</enum><text>In 1975, [then] Attorney General Edward Levi, a strong defender of executive authority, testified that in times of conflict, the President needs the power to conduct long-range electronic surveillance and that a foreign intelligence surveillance court should be empowered to issue special approval orders in these circumstances.</text> </paragraph><paragraph id="ID33639eb2d79e4b4baa397b36e525d940"><enum>(13)</enum><text>The Foreign Intelligence Surveillance Act of 1978 clarifies and definitively establishes that the Foreign Intelligence Surveillance Court has the authority to review electronic surveillance programs and pass upon their constitutionality. Such authority is consistent with well-established, longstanding practices.</text> </paragraph><paragraph id="ID2261ecbac7334eceb77a6714d7bd89de"><enum>(14)</enum><text>The Foreign Intelligence Surveillance Court already has broad authority to approve surveillance of members of international conspiracies, in addition to granting warrants for surveillance of a particular individual under sections 104, 105, and 402 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1804, 1805, and 1842).</text> </paragraph><paragraph id="IDf59ca6c287c240059504ca51c99657a6"><enum>(15)</enum><text>Prosecutors have significant flexibility in investigating domestic conspiracy cases. Courts have held that flexible warrants comply with the 4th amendment to the Constitution of the United States when they relate to complex, far-reaching, and multifaceted criminal enterprises like drug conspiracies and money laundering rings. The courts recognize that applications for search warrants must be judged in a common sense and realistic fashion, and the courts permit broad warrant language where, due to the nature and circumstances of the investigation and the criminal organization, more precise descriptions are not feasible.</text> </paragraph><paragraph id="ID92c80aaf44414c76b98f7dab2f847142"><enum>(16)</enum><text>Federal agents investigating international terrorism by foreign enemies are entitled to tools at least as broad as those used by law enforcement officers investigating domestic crimes by United States citizens. The Supreme Court, in the <quote>Keith Case</quote>, United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297 (1972), recognized that the standards and procedures used to fight ordinary crime may not be applicable to cases involving national security. The Court recognized that national <quote>security surveillance may involve different policy and practical considerations from the surveillance of ordinary crime</quote> and that courts should be more flexible in issuing warrants in national security cases. United States v. United States District Court for the Eastern District of Michigan, 407 U.S. 297, 322 (1972).</text> </paragraph><paragraph id="ID776b62becce84a0f8339d9f2ee031b20"><enum>(17)</enum><text>By authorizing the Foreign Intelligence Surveillance Court to review electronic surveillance programs, Congress preserves the ability of the President to use the necessary means to guard our national security, while also protecting the civil liberties and constitutional rights that we cherish.</text> </paragraph></section><section id="ID0de4ade42e3e4776af21c6f86c07b1c4"><enum>203.</enum><header>Definitions</header><text display-inline="no-display-inline">The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended—</text> <paragraph id="id3E4B305D95694705939F9E071AC7C186"><enum>(1)</enum><text display-inline="yes-display-inline">by redesignating title VII as title IX;</text> </paragraph><paragraph id="IDd59f3fe919c8408e865456e0d6b05d07"><enum>(2)</enum><text>by redesignating section 701 as section 901; and</text> </paragraph><paragraph id="IDd078c7c075e044c5a39eac18489a21f4"><enum>(3)</enum><text>by inserting after title VI the following:</text> <quoted-block display-inline="no-display-inline" id="idAEFB5A3F8EEE4644AEC771C1E4FD1BF9" style="OLC"> <title id="idF07BBAB61068485AB5602FA1594A7EAA"><enum>VII</enum><header>Electronic surveillance</header> <section id="IDa259c79106e14ca0a31bdae20ac114ee"><enum>701.</enum><header>Definition</header><text display-inline="no-display-inline">As used in this title—</text> <paragraph id="IDe125a3793a794c35b16e65d267ba111d"><enum>(1)</enum><text>the terms <term>agent of a foreign power</term>, <term>Attorney General</term>, <term>foreign power</term>, <term>international terrorism</term>, <term>minimization procedures</term>, <term>person</term>, <term>United States</term>, and <term>United States person</term> have the same meaning as in section 101;</text> </paragraph><paragraph id="ID984f5d13d80f4e559fad7d62c83b2d88"><enum>(2)</enum><text>the term <term>congressional intelligence committees</term> means the Select Committee on Intelligence of the Senate and the Permanent Select Committee on Intelligence of the House of Representatives;</text> </paragraph><paragraph id="ID2638a29399c945ea9df62e6ae38d84c7"><enum>(3)</enum><text>the term <term>electronic communication</term> means any transfer of signs, signals, writing, images, sounds, data, or intelligence of any nature transmitted, in whole or in part, by a wire, radio, electro magnetic, photo electronic or photo optical system, cable, or other like connection furnished or operated by any person engaged as a common carrier in providing or operating such facilities for the transmission of communications;</text> </paragraph><paragraph id="ID3186db775c46487fa71cfe7d7ed87966"><enum>(4)</enum><text>the term <term>electronic tracking</term> means the acquisition by an electronic, mechanical, or other surveillance device of the substance of any electronic communication sent by, received by, or intended to be received by a person who is reasonably believed to be in the United States, through the intentional targeting of that person's communications, where a person in the United States participating in the communication has a reasonable expectation of privacy;</text> </paragraph><paragraph id="ID74b9e9bace0b40a694d3c549bd50b8b6"><enum>(5)</enum><text>the term <term>electronic surveillance program</term> means a program to engage in electronic tracking—</text> <subparagraph id="IDcc5022a428b8447689836f44bcfb0774"><enum>(A)</enum><text>that has as a significant purpose the gathering of foreign intelligence information or protecting against international terrorism;</text> </subparagraph><subparagraph id="IDf51bb30c47124d9f9e5ee619487c1ec9"><enum>(B)</enum><text>where it is not technically feasible to name every person or address every location to be subjected to electronic tracking;</text> </subparagraph><subparagraph id="ID5716d019f2c2488b8992efa516e1386b"><enum>(C)</enum><text>where effective gathering of foreign intelligence information requires the flexibility to begin electronic surveillance immediately after learning of suspect activity; and</text> </subparagraph><subparagraph id="IDae5cd7bfd18d4d2ba3671de826fbe175"><enum>(D)</enum><text>where effective gathering of foreign intelligence information requires an extended period of electronic surveillance;</text> </subparagraph></paragraph><paragraph id="ID6b66882fa2fd4d1bb79f1dcdf3869998"><enum>(6)</enum><text>the term <term>foreign intelligence information</term> has the same meaning as in section 101 and includes information necessary to protect against international terrorism;</text> </paragraph><paragraph id="IDbb85a2c8697e4b4fb78865f992b52548"><enum>(7)</enum><text>the term <term>Foreign Intelligence Surveillance Court</term> means the court established under section 103(a);</text> </paragraph><paragraph id="ID53f091f611b64cacaa842c06def2504e"><enum>(8)</enum><text>the term <term>Foreign Intelligence Surveillance Court of Review</term> means the court established under section 103(b);</text> </paragraph><paragraph id="ID374c2785f00a40b1b0294a678843a85a"><enum>(9)</enum><text>the term <term>intercept</term> means the acquisition of the substance of any electronic communication by a person through the use of any electronic, mechanical, or other device; and</text> </paragraph><paragraph id="IDe1d72ba0c4fc4ac680a8edea39284039"><enum>(10)</enum><text>the term <term>substance</term> means any information concerning the symbols, sounds, words, purport, or meaning of a communication, and does not include dialing, routing, addressing, or signaling.</text> </paragraph></section>

204.

Foreign intelligence surveillance court jurisdiction to review electronic surveillance programs

(a)

In general

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 203, is amended by adding at the end the following:

702.

Foreign intelligence surveillance court jurisdiction to review electronic surveillance programs

(a)

Authorization of review

(1)

Initial authorization

The Foreign Intelligence Surveillance Court shall have jurisdiction to issue an order under this title, lasting not longer than 90 days, that authorizes an electronic surveillance program to obtain foreign intelligence information or to protect against international terrorism. (2)

Reauthorization

The Foreign Intelligence Surveillance Court shall have jurisdiction to reauthorize an electronic surveillance program for a period of time not longer than such court determines to be reasonable. (3)

Resubmission or appeal

In the event that the Foreign Intelligence Surveillance Court refuses to approve an application under this subsection, the Attorney General may submit a new application. There shall be no limit on the number of times the Attorney General may seek approval of an electronic surveillance program. Alternatively, the Attorney General may appeal the decision of the Foreign Intelligence Surveillance Court to the Foreign Intelligence Surveillance Court of Review. (b)

Mandatory transfer for review

(1)

In general

In any case before any court challenging the legality of classified communications intelligence activity relating to a foreign threat, including an electronic surveillance program, or in which the legality of any such activity or program is in issue, if the Attorney General files an affidavit under oath that the case should be transferred to the Foreign Intelligence Court of Review because further proceedings in the originating court would harm the national security of the United States, the originating court shall transfer the case to the Foreign Intelligence Surveillance Court of Review for further proceedings under this subsection. (2)

Retransfer to originating court

Upon completion of review pursuant to this subsection, the Foreign Intelligence Surveillance Court of Review shall remand the case to the originating court for further proceedings consistent with its opinion. (3)

Preservation of litigation

In any case that is transferred and received under this subsection, all litigation privileges shall be preserved. (4)

Certiorari and effects of decisions

The decision the Foreign Intelligence Surveillance Court of Review made under paragraph (1), including a decision that the disclosure of national security information is constitutionally required, shall be subject to certiorari review in the United States Supreme Court, and shall otherwise be binding in all other courts. (5)

Dismissal

The Foreign Intelligence Surveillance Court of Review or a court that is an originating court under paragraph (1) may dismiss a challenge to the legality of an electronic surveillance program for any reason provided for under law. (c)

Modifications and appeal in event application is denied

In the event that the Foreign Intelligence Surveillance Court declines to approve an application under subsection (a)— (1)the court shall state its reasons in a written opinion, which it shall submit to the Attorney General; and (2)the Attorney General may submit a new application under section 703 for the electronic surveillance program.

205.

Applications for approval of electronic surveillance programs

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 204, is amended by adding at the end the following:

703.

Applications for approval of electronic surveillance programs

(a)

In general

Each application for approval of an electronic surveillance program under this title (including for reauthorization) shall— (1)be made by the Attorney General or his designee; (2)include a statement of the authority conferred on the Attorney General by the President of the United States; (3)include a statement setting forth the legal basis for the conclusion by the Attorney General that the electronic surveillance program is consistent with the Constitution of the United States; (4)certify that a significant purpose of the electronic surveillance program is to gather foreign intelligence information or to protect against international terrorism; (5)certify that the information sought cannot reasonably be obtained by normal investigative techniques or through an application under section 104; (6)include a statement of the means and operational procedures by which the electronic tracking will be executed and effected; (7)include an explanation of how the electronic surveillance program is reasonably designed to ensure that the communications that are intercepted are communications of or with— (A)a foreign power that is engaged in international terrorism activities or in preparation therefor; (B)an agent of a foreign power that is engaged in international terrorism activities or in preparation therefor; or (C)a person reasonably believed to have communication with or be associated with a foreign power that is engaged in international terrorism activities or in preparation therefor or an agent of a foreign power that is engaged in international terrorism activities or in preparation therefor; (8)include a statement of the proposed minimization procedures; (9)if the electronic surveillance program that is the subject of the application was initiated prior to the date the application was submitted, specify the date that the program was initiated; (10)include a description of all previous applications that have been made under this title involving the electronic surveillance program in the application (including the minimization procedures and the means and operational procedures proposed) and the decision on each previous application; and (11)include a statement of facts concerning the implementation of the electronic surveillance program described in the application, including, for any period of operation of the program authorized not less than 90 days prior to the date of submission of the application— (A)the minimization procedures implemented; and (B)the means and operational procedures by which the electronic tracking was executed and effected. (b)

Additional information

The Foreign Intelligence Surveillance Court may require the Attorney General to furnish such other information as may be necessary to make a determination under section 704.

206.

Approval of electronic surveillance programs

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 205, is amended by adding at the end the following:

704.

Approval of electronic surveillance programs

(a)

Necessary findings

Upon receipt of an application under section 703, the Foreign Intelligence Surveillance Court shall enter an ex parte order as requested, or as modified, approving the electronic surveillance program if it finds that— (1)the President has authorized the Attorney General to make the application for electronic surveillance for foreign intelligence information or to protect against international terrorism; (2)approval of the electronic surveillance program in the application is consistent with the Constitution of the United States; (3)the electronic surveillance program is reasonably designed to ensure that the communications that are intercepted are communications of or with— (A)a foreign power that is engaged in international terrorism activities or in preparation therefor; (B)an agent of a foreign power that is engaged in international terrorism activities or in preparation therefor; or (C)a person reasonably believed to have communication with or be associated with a foreign power that is engaged in international terrorism activities or in preparation therefor or an agent of a foreign power that is engaged in international terrorism activities or in preparation therefor; (4)the proposed minimization procedures meet the definition of minimization procedures under section 101(h); and (5)the application contains all statements and certifications required by section 703. (b)

Considerations

In considering the constitutionality of the electronic surveillance program under subsection (a), the Foreign Intelligence Surveillance Court may consider— (1)whether the electronic surveillance program has been implemented in accordance with the proposal by the Attorney General by comparing— (A)the minimization procedures proposed with the minimization procedures actually implemented; (B)the nature of the information sought with the nature of the information actually obtained; and (C)the means and operational procedures proposed with the means and operational procedures actually implemented; and (2)whether foreign intelligence information has been obtained through the electronic surveillance program. (c)

Contents of order

An order approving an electronic surveillance program under this section shall direct— (1)that the minimization procedures be followed; (2)that, upon the request of the applicant, specified communication or other common carriers, landlords, custodians, or other specified person, furnish the applicant forthwith with all information, facilities, or technical assistance necessary to undertake the electronic surveillance program in such a manner as will protect its secrecy and produce a minimum of interference with the services that such carriers, landlords, custodians, or other persons are providing potential targets of the electronic surveillance program; (3)that any record concerning the electronic surveillance program or the aid furnished or retained by such carriers, landlords, custodians, or other persons are maintained under security procedures approved by the Attorney General and the Director of National Intelligence; and (4)that the applicant compensate, at the prevailing rate, such carriers, landlords, custodians, or other persons for furnishing such aid.

207.

Congressional oversight

Title VII of the Foreign Intelligence Surveillance Act of 1978, as amended by section 206, is amended by adding at the end the following:

705.

Congressional oversight

(a)

In general

Not less often than every 180 days, the Attorney General shall submit to the congressional intelligence committees a report in classified form on the activities during the previous 180-day period under any electronic surveillance program authorized under this title. (b)

Contents

Each report submitted under subsection (a) shall provide, with respect to the previous 180-day period, a description of— (1)the minimization procedures implemented; (2)the means and operational procedures by which the surveillance was executed and effected; (3)significant decisions of the Foreign Intelligence Surveillance Court on applications made under section 703; (4)the total number of applications made for orders approving electronic surveillance pursuant to this title; and (5)the total number of orders applied for that are granted, modified, or denied. (c)

Rule of construction

Nothing in this title shall be construed to limit the authority or responsibility of any committee of either House of Congress to obtain such information as such committee may need to carry out its respective functions and duties.

208.

Clarification of the Foreign Intelligence Surveillance Act of 1978

(a)

In general

The Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) is amended by inserting after title VII, as amended by this title, the following:

<enum>VIII</enum><header>Executive authority</header> <section id="idA6F1FA4565584A449884CDB29E4A0BCA"><enum>801.</enum><header>Executive authority</header><text display-inline="no-display-inline">Nothing in this Act shall be construed to limit the constitutional authority of the President to collect intelligence with respect to foreign powers and agents of foreign powers.</text> </section>

(b)

Repeal

Sections 111, 309, and 404 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1811, 1829, and 1844) are repealed. (c)

Conforming amendments

(1)

Title 18

Section 2511(2) of title 18, United States Code, is amended— (A)in paragraph (e), by striking , as defined in section 101 and all that follows through the end of the paragraph and inserting the following: under the Constitution or the Foreign Intelligence Surveillance Act of 1978.; and (B)in paragraph (f), by striking from international or foreign communications, and all that follows through the end of the paragraph and inserting that is authorized under a Federal statute or the Constitution of the United States. (2)

FISA

Section 109 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1809) is amended— (A)in subsection (a)— (i)in paragraph (1)— (I)by inserting or under the Constitution after authorized by statute; and (II)by striking or at the end; (ii)in paragraph (2)— (I)by inserting or under the Constitution after authorized by statute; and (II)by striking the period and inserting ; or; and (iii)by adding at the end the following:

(3)knowingly discloses or uses information obtained under color of law by electronic surveillance in a manner or for a purpose not authorized by law.

; and

(B)in subsection (c)— (i)by striking $10,000 and inserting $100,000; and (ii)by striking five years and inserting 15 years.

209.

Other conforming amendments to FISA

(a)

Reference

In this section, a reference to FISA shall mean the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1801 et seq.) (b)

Definitions

Section 101 of FISA (50 U.S.C. 1801) is amended— (1)in subsection (b)(1)— (A)in subparagraph (B), by striking or after the semicolon; and (B)by adding at the end the following:

(D)otherwise possesses or is expected to transmit or receive foreign intelligence information within the United States; or

;

(2)by striking subsection (f) and inserting the following:

(f)Electronic surveillance means— (1)the installation or use of an electronic, mechanical, or other surveillance device for the intentional collection of information concerning a particular known person who is reasonably believed to be in the United States by intentionally targeting that person under circumstances in which that person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes; or (2)the intentional acquisition of the contents of any communication under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, and if both the sender and all intended recipients are located within the United States.

;

(3)in subsection (g), by inserting before the period the following: or a person or persons designated by the Attorney General or Acting Attorney General; (4)in subsection (h)— (A)in paragraph (2), by inserting and after the semicolon; (B)in paragraph (3), by striking ; and and inserting a period; and (C)by striking paragraph (4); and (5)by striking subsection (n) and inserting the following:

(n)contents has the meaning set forth in section 2510(8) of title 18, United States Code.

(c)

Electronic surveillance authorization

Section 102 of FISA (50 U.S.C. 1802) is amended to read as follows:

102.

Electronic surveillance authorization without court order; certification by Attorney General; reports to congressional committees; transmittal under seal; duties and compensation of communication common carrier; applications; jurisdiction of court

(a)(1)Notwithstanding any other law, the President through the Attorney General, may authorize electronic surveillance without a court order under this title to acquire foreign intelligence information for periods of up to 1 year if the Attorney General certifies in writing under oath that— (A)(i)the acquisition of the contents of communications of foreign powers, as defined in section 101(a), an agent of a foreign power as defined in section 101(b)(1); or (ii)the acquisition of technical intelligence, other than the spoken communications of individuals, from property or premises under the open and exclusive control of a foreign power, as defined in paragraph (1), (2), or (3) of section 101(a); and (B)the proposed minimization procedures with respect to such surveillance meet the definition of minimization procedures under section 101(h);

if the Attorney General reports such minimization procedures and any changes thereto to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence at least 30 days prior to their effective date, unless the Attorney General determines immediate action is required and notifies the committees immediately of such minimization procedures and the reason for their becoming effective immediately.

(2)An electronic surveillance authorized by this subsection may be conducted only in accordance with the Attorney General's certification and the minimization procedures. The Attorney General shall assess compliance with such procedures and shall report such assessments to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence under the provisions of section 108(a). (3)The Attorney General shall immediately transmit under seal to the court established under section 103(a) a copy of his certification. Such certification shall be maintained under security measures established by the Chief Justice with the concurrence of the Attorney General, in consultation with the Director of National Intelligence, and shall remain sealed unless— (A)an application for a court order with respect to the surveillance is made under section 104; or (B)the certification is necessary to determine the legality of the surveillance under section 106(f). (b)The Attorney General is also authorized to deliver to a provider of any electronic communication service, landlord, custodian, or other person (including any officer, employee, agent, or other specified person thereof) who has access to electronic communications, either as they are transmitted or while they are stored, or equipment that is being or may be used to transmit or store such communications, a certificate requiring that such person or persons furnish any information, facilities, or technical assistance to an official authorized by the President to engage in electronic surveillance for foreign intelligence purposes, for periods of up to 1 year if the Attorney General certifies in writing to the carrier under oath that such provision of information, facilities, or technical assistance does not constitute electronic surveillance as defined in section 101(f). (c)With respect to electronic surveillance or the furnishing of any information, facilities, or technical assistance authorized by this section, the Attorney General may direct a provider of any electronic communication service, landlord, custodian or other person (including any officer, employee, agent, or other specified person thereof) who has access to electronic communications, either as they are transmitted or while they are stored or equipment that is being or may be used to transmit or store such communications to— (1)furnish all information, facilities, or technical assistance necessary to accomplish the electronic surveillance in such a manner as will protect its secrecy and produce a minimum of interference with the services that such provider of any electronic communication service, landlord, custodian, or other person is providing its customers; and (2)maintain under security procedures approved by the Attorney General and the Director of National Intelligence any records concerning the surveillance or the aid furnished which such provider of any electronic communication service, landlord, custodian, or other person wishes to retain.

The Government shall compensate, at the prevailing rate, such provider of any electronic communication service, landlord, custodian, or other person for furnishing such aid.

(d)Electronic surveillance directed solely at the collection of international radio communications of diplomatically immune persons in the United States may be authorized by an official authorized by the President to engage in electronic surveillance for foreign intelligence purposes in accordance with procedures approved by the Attorney General.

(d)

Designation of judges

Section 103 of FISA (50 U.S.C. 1803) is amended in subsection (a), by inserting, at least before seven of the United States Judiciary. (e)

Applications for court orders

Section 104 of FISA (50 U.S.C. 1804) is amended: (1)in subsection (a), by striking paragraphs (6) through (11) and inserting the following:

(6)a certification or certifications by the Assistant to the President for National Security Affairs or an executive branch official authorized by the President to conduct electronic surveillance for foreign intelligence purposes— (A)that the certifying official deems the information sought to be foreign intelligence information; (B)that a significant purpose of the surveillance is to obtain foreign intelligence information; (C)that such information cannot reasonably be obtained by normal investigative techniques; and (D)including a statement of the basis for the certification that— (i)the information sought is the type of foreign intelligence information designated; and (ii)such information cannot reasonably be obtained by normal investigative techniques; and (7)a statement of the period of time for which the electronic surveillance is required to be maintained, and if the nature of the intelligence gathering is such that the approval of the use of electronic surveillance under this title should not automatically terminate when the described type of information has first been obtained, a description of facts supporting the belief that additional information of the same type will be obtained thereafter.

;

(2)by striking subsection (b); and (3)by redesignating subsections (c) through (e) as subsections (b) through (d), respectively. (f)

Issuance of order

Section 105 of FISA (50 U.S.C. 1805) is amended— (1)in subsection (a), by— (A)striking paragraph (1); and (B)redesignating paragraphs (2) through (5) as paragraphs (1) through (4), respectively; (2)by striking paragraph (1) of subsection (c) and inserting the following:

(1)An order approving an electronic surveillance under this section shall specify— (A)the identity, if known, or a description of the specific target of the electronic surveillance identified or described in the application pursuant to section 104(a)(3); (B)the nature and location of each of the facilities or places at which the electronic surveillance will be directed, if known; and (C)the period of time during which the electronic surveillance is approved.

;

(3)by striking subsection (d) and inserting the following:

(d)Each order under this section shall specify the type of electronic surveillance involved, including whether physical entry is required.

;

(4)by striking paragraphs (1) and (2) of subsection (e) and inserting the following:

(1)An order issued under this section may approve an electronic surveillance may be for a period not to exceed 1 year. If such emergency employment of electronic surveillance is authorized, the official authorizing the emergency employment of electronic surveillance shall require that the minimization procedures required by this title for the issuance of a judicial order be followed. (2)Extensions of an order issued under this title may be granted on the same basis as an original order upon an application for an extension and new findings made in the same manner as required for an original order and may be for a period not to exceed 1 year.

;

(5)by striking subsection (f) and inserting the following:

(f)(1)Notwithstanding any other provision of this title, when an official authorized by the President to conduct electronic surveillance reasonably determines that— (A)an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (B)the factual basis for issuance of an order under this title to approve such surveillance exists;

that official may authorize the emergency employment of electronic surveillance in accordance with paragraph (2).

(2)Under paragraph (1), the following requirements shall be satisfied: (A)The Attorney General shall be informed of the emergency electronic surveillance. (B)A judge having jurisdiction under section 103 shall be informed by the Attorney General or his designee as soon as practicable following such authorization that the decision has been made to employ emergency electronic surveillance. (C)An application in accordance with this title shall be made to that judge or another judge having jurisdiction under section 103 as soon as practicable, but not more than 7 days after such surveillance is authorized. In the absence of a judicial order approving such electronic surveillance, the surveillance shall terminate when the information sought is obtained, when the application for the order is denied, or after the expiration of 7 days from the time of emergency authorization, whichever is earliest. In the event that such application for approval is denied, or in any other case where the electronic surveillance is terminated and no order is issued approving the surveillance, no information obtained or evidence derived from such surveillance shall be received in evidence or otherwise disclosed in any trial, hearing, or other proceeding in or before any court, grand jury, department, office, agency, regulatory body, legislative committee, or other authority of the United States, a State, or political subdivision thereof, and no information concerning any United States person acquired from such surveillance shall subsequently be used or disclosed in any other manner by Federal officers or employees without the consent of such person, except with the approval of the Attorney General if the information indicates a threat of death or serious bodily harm to any person. A denial of the application made under this subsection may be reviewed as provided in section 103.

; and

(6)in subsection (i) by— (A)striking a wire or and inserting any; (B)striking chapter and inserting title; and (C)by adding at the end , or in response to certification by the Attorney General or his designee seeking information, facilities, or technical assistance from such person that does not constitute electronic surveillance as defined in section 101(f ). (g)

Use of information

Section 106 of FISA (50U.S.C. 1806) is amended— (1)in subsection (i), by— (A)deleting radio; and (B)inserting Attorney General determines that the content after contain significant foreign intelligence or; and (2)in subsection (k), by deleting 104(a)(7) and inserting 104(a)(6). (h)

Congressional oversight

Section 108 of FISA (50 U.S.C. 1808) is amended by adding at the end the following:

(c)

Document management system for applications for orders approving electronic surveillance

(1)

System proposed

The Attorney General and Director of National Intelligence shall, in consultation with the Director of the Federal Bureau of Investigation, the Director of the National Security Agency, the Director of the Central Intelligence Agency, and the Foreign Intelligence Surveillance Court, conduct a feasibility study to develop and implement a secure, classified document management system that permits the prompt preparation, modification, and review by appropriate personnel of the Department of Justice, the Federal Bureau of Investigation, the National Security Agency, and other applicable elements of the United States Government of applications under section 104 before their submittal to the Foreign Intelligence Surveillance Court. (2)

Scope of system

The document management system proposed in paragraph (1) shall— (A)permit and facilitate the prompt submittal of applications and all other matters, including electronic filings, to the Foreign Intelligence Surveillance Court under section 104 or 105(g)(5); and (B)permit and facilitate the prompt transmittal of rulings of the Foreign Intelligence Surveillance Court to personnel submitting applications described in paragraph (1).

(i)

Criminal sanctions

Section 109 of FISA (50 U.S.C. 1809) is amended by striking subsection (a) and inserting the following:

(a)

Prohibited activities

A person is guilty of an offense if he intentionally— (1)engages in electronic surveillance, as defined in section 101(f), under color of law except as authorized by law; or (2)discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by law.

(j)

Authorization during time of war

Title I of FISA is amended by striking section 111. (k)

Physical searches

Title III of Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1821 et seq.) is amended— (1)in section 301 (50 U.S.C. 1821), by striking paragraph (5) and inserting the following:

(5)Physical search means any physical intrusion within the United States into premises or property (including examination of the interior of property by technical means) that is intended to result in a seizure, reproduction, inspection, or alteration of information, material, or property, under circumstances in which a person has a reasonable expectation of privacy and a warrant would be required for law enforcement purposes, but does not include activities conducted in accordance with sections 102 or 105.

;

(2)in section 307, by striking subsection (a) and inserting the following:

(a)A person is guilty of an offense if he intentionally— (1)under color of law for the purpose of obtaining foreign intelligence information, executes a physical search within the United States except as authorized by statute or under the Constitution; or (2)discloses or uses information obtained under color of law by physical search within the United States, knowing or having reason to know that the information was obtained through physical search not authorized by statute or the Constitution.

; and

(3)by striking section 309.

210.

Conforming amendment to table of contents

The table of contents for the Foreign Intelligence Surveillance Act of 1978 is amended by striking the items related to title VII and section 701 and inserting the following:

TITLE VII—Electronic surveillance

Sec. 701. Definition.

Sec. 702. Foreign intelligence surveillance court jurisdiction to review electronic surveillance programs.

Sec. 703. Applications for approval of electronic surveillance programs.

Sec. 704. Approval of electronic surveillance programs.

Sec. 705. Congressional oversight.

TITLE VIII—Executive authority

Sec. 801. Executive authority.

September 12, 2006

Read the second time and placed on the calendar