II Calendar No. 611 109th CONGRESS 2d Session S. 3901 IN THE SENATE OF THE UNITED STATES September 14, 2006 Mr. Warner, from the Committee on Armed Services, reported the following original bill; which was read twice and placed on the calendar A BILL To authorize trial by military commission for violations of the law of war, and for other purposes.

1.

Short title

This Act may be cited as the Military Commissions Act of 2006.

2.

Findings

Congress makes the following findings: (1)The Constitution of the United States grants to Congress the power To define and punish . . . Offenses against the Law of Nations, as well as the power To declare War . . . To raise and support Armies . . . [and] To provide and maintain a Navy. (2)The military commission is the traditional tribunal for the trial of persons engaged in hostilities for violations of the law of war. (3)Congress has, in the past, both authorized the use of military commission by statute and recognized the existence and authority of military commissions. (4)Military commissions have been convened both by the President and by military commanders in the field to try offenses against the law of war. (5)It is in the national interest for Congress to exercise its authority under the Constitution to enact legislation authorizing and regulating the use of military commissions to try and punish violations of the law of war. (6)Military commissions established and operating under chapter 47A of title 10, United States Code (as enacted by this Act), are regularly constituted courts affording, in the words of Common Article 3 of the Geneva Conventions, all the judicial guarantees which are recognized as indispensable by civilized peoples.

3.

Authorization for military commissions

(a)

In general

The President is authorized to establish military commissions for the trial of alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses specifically made triable by military commission as provided in chapter 47 of title 10, United States Code, and chapter 47A of title 10, United States Code (as enacted by this Act). (b)

Construction

The authority in subsection (a) may not be construed to alter or limit the authority of the President under the Constitution and laws of the United States to establish military commissions for areas declared to be under martial law or in occupied territories should circumstances so require. (c)

Scope of punishment authority

A military commission established pursuant to subsection (a) shall have authority to impose upon any person found guilty under a proceeding under chapter 47A of title 10, United States Code (as so enacted), a sentence that is appropriate for the offense or offenses for which there is a finding of guilt, including a sentence of death if authorized under such chapter, 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 military commission shall direct. (d)

Execution of punishment

The Secretary of Defense is authorized to carry out a sentence of punishment imposed by a military commission established pursuant to subsection (a) in accordance with such procedures as the Secretary may prescribe. (e)

Annual report on trials by military commissions

(1)

Annual report required

Not later than December 31 each year, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report on any trials conducted by military commissions established pursuant to subsection (a) during such year. (2)

Form

Each report under this subsection shall be submitted in unclassified form, but may include a classified annex.

4.

Military commissions

(a)

Military commissions

(1)

In general

Subtitle A of title 10, United States Code, is amended by inserting after chapter 47 the following new chapter: 47A

Military commissions

SUBCHAPTER Sec. I. General Provisions948a. II. Composition of Military Commissions948h. III. Pre-Trial Procedure948q. IV. Trial Procedure949a. V. Sentences949s. VI. Post-Trial Procedure and Review of Military Commissions950a. VII. Punitive Matters950aa. I

General Provisions

Sec. 948a. Definitions. 948b. Military commissions generally. 948c. Persons subject to military commissions. 948d. Jurisdiction of military commissions.

948a.

Definitions

In this chapter: (1)

Alien

The term alien means an individual who is not a citizen of the United States. (2)

Classified information

The term classified information means the following: (A)Any information or material that has been determined by the United States Government pursuant to statute, Executive order, or regulation to require protection against unauthorized disclosure for reasons of national security. (B)Any restricted data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 2014(y)). (3)

Lawful enemy combatant

The term lawful enemy combatant means an individual who is— (A)a member of the regular forces of a State party engaged in hostilities against the United States; (B)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 (C)a member of a regular armed force who professes allegiance to a government engaged in such hostilities, but not recognized by the United States. (4)

Unlawful enemy combatant

The term unlawful enemy combatant means an individual engaged in hostilities against the United States who is not a lawful enemy combatant.

948b.

Military commissions generally

(a)

Purpose

This chapter establishes procedures governing the use of military commissions to try alien unlawful enemy combatants engaged in hostilities against the United States for violations of the law of war and other offenses triable by military commission. (b)

Construction of provisions

The procedures for military commissions set forth in this chapter are based upon the procedures for trial by general courts-martial under chapter 47 of this title (the Uniform Code of Military Justice). Chapter 47 of this title does not, by its terms, apply to trial by military commission except as specifically provided therein or in this chapter, and many of the provisions of chapter 47 of this title are by their terms inapplicable to military commissions. The judicial construction and application of chapter 47 of this title, while instructive, is therefore not of its own force binding on military commissions established under this chapter. (c)

Inapplicability of certain provisions

(1)The following provisions of this title shall not apply to trial by military commission under this chapter: (A)Section 810 (article 10 of the Uniform Code of Military Justice), relating to speedy trial, including any rule of courts-martial relating to speedy trial. (B)Sections 831(a), (b), and (d) (articles 31(a), (b), and (d) of the Uniform Code of Military Justice), relating to compulsory self-incrimination. (C)Section 832 (article 32 of the Uniform Code of Military Justice), relating to pretrial investigation. (2)Other provisions of chapter 47 of this title shall apply to trial by military commission under this chapter only to the extent provided by the terms of such provisions or by this chapter. (d)

Treatment of rulings and precedents

The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not be introduced or considered in any hearing, trial, or other proceeding of a court-martial convened under chapter 47 of this title. The findings, holdings, interpretations, and other precedents of military commissions under this chapter may not form the basis of any holding, decision, or other determination of a court-martial convened under that chapter.

948c.

Persons subject to military commissions

Any alien unlawful enemy combatant engaged in hostilities or having supported hostilities against the United States is subject to trial by military commission as set forth in this chapter.

948d.

Jurisdiction of military commissions

A military commission under this chapter shall have jurisdiction to try persons subject to this chapter for any offense made punishable by this chapter, sections 904 and 906 of this title (articles 104 and 106 of the Uniform Code of Military Justice), or the law of war, and may, under such limitations as the President may prescribe, adjudge any punishment not forbidden by this chapter, including the penalty of death when authorized under this chapter, chapter 47 of this title, or the law of war.

II

Composition of Military Commissions

Sec. 948h. Who may convene military commissions. 948i. Who may serve on military commissions. 948j. Military judge of a military commission. 948k. Detail of trial counsel and defense counsel. 948l. Detail or employment of reporters and interpreters. 948m. Number of members; excuse of members; absent and additional members.

948h.

Who may convene military commissions

Military commissions under this chapter may be convened by the Secretary of Defense or by any officer or official of the United States designated by the Secretary for that purpose.

948i.

Who may serve on military commissions

(a)

In general

Any commissioned officer of the armed forces on active duty is eligible to serve on a military commission under this chapter, including commissioned officers of the reserve components of the armed forces on active duty, commissioned officers of the National Guard on active duty in Federal service, or retired commissioned officers recalled to active duty. (b)

Detail of members

When convening a military commission under this chapter, the convening authority shall detail as members thereof such members of the armed forces eligible under subsection (a) who, as in the opinion of the convening authority, are best qualified for the duty by reason of age, education, training, experience, length of service, and judicial temperament. No member of an armed force is eligible to serve as a member of a military commission when such member is the accuser or a witness for the prosecution or has acted as an investigator or counsel in the same case. (c)

Excuse of members

Before a military commission under this chapter is assembled for the trial of a case, the convening authority may excuse a member from participating in the case.

948j.

Military judge of a military commission

(a)

Detail of military judge

A military judge shall be detailed to each military commission under this chapter. The Secretary of Defense shall prescribe regulations providing for the manner in which military judges are so detailed to military commissions. The military judge shall preside over each military commission to which he has been detailed. (b)

Eligibility

A military judge shall be a commissioned officer of the armed forces who is a member of the bar of a Federal court, or a member of the bar of the highest court of a State, and who is certified to be qualified for duty under section 826 of this title (article 26 of the Uniform Code of Military Justice) as a military judge in general courts-martial by the Judge Advocate General of the armed force of which such military judge is a member. (c)

Ineligibility of certain individuals

No person is eligible to act as military judge in a case of a military commission under this chapter if he is the accuser or a witness or has acted as investigator or a counsel in the same case. (d)

Consultation with members; Ineligibility to vote

A military judge detailed to a military commission under this chapter may not consult with the members except in the presence of the accused (except as otherwise provided in section 949d of this title), trial counsel, and defense counsel, nor may he vote with the members. (e)

Other duties

A commissioned officer who is certified to be qualified for duty as a military judge of a military commission under this chapter may perform such other duties as are assigned to him by or with the approval of the Judge Advocate General of the armed force of which such officer is a member or the designee of such Judge Advocate General. (f)

Prohibition on evaluation of fitness by convening authority

The convening authority of a military commission under this chapter shall not prepare or review any report concerning the effectiveness, fitness, or efficiency of a military judge detailed to the military commission which relates to his performance of duty as a military judge on the military commission.

948k.

Detail of trial counsel and defense counsel

(a)

Detail of counsel generally

(1)Trial counsel and military defense counsel shall be detailed for each military commission under this chapter. (2)Assistant trial counsel and assistant and associate defense counsel may be detailed for a military commission under this chapter. (3)Military defense counsel for a military commission under this chapter shall be detailed as soon as practicable. (4)The Secretary of Defense shall prescribe regulations providing for the manner in which trial counsel and military defense counsel are detailed for military commissions under this chapter and for the persons who are authorized to detail such counsel for such military commissions. (b)

Trial counsel

Subject to subsection (e), trial counsel detailed for a military commission under this chapter must be— (1)a judge advocate (as that term is defined in section 801 of this title (article 1 of the Uniform Code of Military Justice)) who is— (A)a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; and (B)certified as competent to perform duties as trial counsel before general courts-martial by the Judge Advocate General of the armed force of which he is a member; or (2)a civilian who is— (A)a member of the bar of a Federal court or of the highest court of a State; and (B)otherwise qualified to practice before the military commission pursuant to regulations prescribed by the Secretary of Defense. (c)

Military defense counsel

Subject to subsection (e), military defense counsel detailed for a military commission under this chapter must be a judge advocate (as so defined) who is— (1)a graduate of an accredited law school or is a member of the bar of a Federal court or of the highest court of a State; and (2)certified as competent to perform duties as defense counsel before general courts-martial by the Judge Advocate General of the armed force of which he is a member. (d)

Chief Prosecutor; Chief Defense Counsel

(1)The Chief Prosecutor in a military commission under this chapter shall meet the requirements set forth in subsection (b)(1). (2)The Chief Defense Counsel in a military commission under this chapter shall meet the requirements set forth in subsection (c)(1). (e)

Ineligibility of certain individuals

No person who has acted as an investigator, military judge, or member of a military commission under this chapter in any case may act later as trial counsel or military defense counsel in the same case. No person who has acted for the prosecution before a military commission under this chapter may act later in the same case for the defense, nor may any person who has acted for the defense before a military commission under this chapter act later in the same case for the prosecution.

948l.

Detail or employment of reporters and interpreters

(a)

Court reporters

Under such regulations as the Secretary of Defense may prescribe, the convening authority of a military commission under this chapter shall detail to or employ for the military commission qualified court reporters, who shall prepare a verbatim record of the proceedings of and testimony taken before the military commission. (b)

Interpreters

Under such regulations as the Secretary of Defense may prescribe, the convening authority of a military commission under this chapter may detail to or employ for the military commission interpreters who shall interpret for the military commission, and, as necessary, for trial counsel and defense counsel for the military commission, and for the accused. (c)

Transcript; record

The transcript of a military commission under this chapter shall be under the control of the convening authority of the military commission, who shall also be responsible for preparing the record of the proceedings of the military commission.

948m.

Number of members; excuse of members; absent and additional members

(a)

Number of members

(1)A military commission under this chapter shall, except as provided in paragraph (2), have at least five members. (2)In a case in which the accused before a military commission under this chapter may be sentenced to a penalty of death, the military commission shall have the number of members prescribed by section 949m(c) of this title. (b)

Excuse of members

No member of a military commission under this chapter may be absent or excused after the military commission has been assembled for the trial of a case unless excused— (1)as a result of challenge; (2)by the military judge for physical disability or other good cause; or (3)by order of the convening authority for good cause. (c)

Absent and additional members

Whenever a military commission under this chapter is reduced below the number of members required by subsection (a), the trial may not proceed unless the convening authority details new members sufficient to provide not less than such number. The trial may proceed with the new members present after the recorded evidence previously introduced before the members has been read to the military commission in the presence of the military judge, the accused (except as provided in section 949d of this title), and counsel for both sides.

III

Pre-Trial Procedure

Sec. 948q. Charges and specifications. 948r. Compulsory self-incrimination prohibited; statements obtained by torture or cruel, inhuman, or degrading treatment. 948s. Service of charges.

948q.

Charges and specifications

(a)

Charges and specifications

Charges and specifications against an accused in a military commission under this chapter shall be signed by a person subject to chapter 47 of this title under oath before a commissioned officer of the armed forces authorized to administer oaths and shall state— (1)that the signer has personal knowledge of, or reason to believe, the matters set forth therein; and (2)that they are true in fact to the best of his knowledge and belief. (b)

Notice to accused

Upon the swearing of the charges and specifications in accordance with subsection (a), the accused shall be informed of the charges and specifications against him as soon as practicable.

948r.

Compulsory self-incrimination prohibited; statements obtained by torture or cruel, inhuman, or degrading treatment

(a)

In general

No person shall be required to testify against himself at a proceeding of a military commission under this chapter. (b)

Statements obtained by torture or cruel, inhuman, or degrading treatment

A statement obtained by use of torture or by cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd), whether or not under color of law, shall not be admissible in a military commission under this chapter, except against a person accused of torture or such treatment as evidence the statement was made. (c)

Statements obtained by alleged coercion not amounting to torture or cruel, inhuman, or degrading treatment

An otherwise admissible statement obtained through the use of alleged coercion not amounting to torture or cruel, inhuman, or degrading treatment prohibited by section 1003 of the Detainee Treatment Act of 2005 may be admitted in evidence in a military commission under this chapter only if the military judge finds that— (1)the totality of the circumstances under which the statement was made render it reliable and possessing sufficient probative value; and (2)the interests of justice would best be served by admission of the statement into evidence.

948s.

Service of charges

The trial counsel assigned to a case before a military commission under this chapter shall cause to be served upon the accused and military defense counsel a copy of the charges upon which trial is to be had in English and, if appropriate, in another language that the accused understands, sufficiently in advance of trial to prepare a defense.

IV

Trial Procedure

Sec. 949a. Rules. 949b. Unlawfully influencing action of military commission. 949c. Duties of trial counsel and defense counsel. 949d. Sessions. 949e. Continuances. 949f. Challenges. 949g. Oaths. 949h. Former jeopardy. 949i. Pleas of the accused. 949j. Opportunity to obtain witnesses and other evidence. 949k. Defense of lack of mental responsibility. 949l. Voting and rulings. 949m. Number of votes required. 949n. Military commission to announce action. 949o. Record of trial.

949a.

Rules

(a)

Procedures and Rules of Evidence

Pretrial, trial, and post-trial procedures, including elements and modes of proof, for cases triable by military commission under this chapter may be prescribed by the Secretary of Defense. Such procedures may not be contrary to or inconsistent with this chapter. Except as otherwise provided in this chapter or chapter 47 of this title, the procedures and rules of evidence applicable in trials by general courts-martial of the United States shall apply in trials by military commission under this chapter. (b)

Exceptions

(1)The Secretary of Defense, in consultation with the Attorney General, may make such exceptions in the applicability in trials by military commission under this chapter from the procedures and rules of evidence otherwise applicable in general courts-martial as may be required by the unique circumstances of the conduct of military and intelligence operations during hostilities or by other practical need. (2)Notwithstanding any exceptions authorized by paragraph (1), the procedures and rules of evidence in trials by military commission under this chapter shall include, at a minimum, the following rights: (A)To examine and respond to all evidence considered by the military commission on the issue of guilt or innocence and for sentencing. (B)To be present at all sessions of the military commission (other than those for deliberations or voting), except when excluded under section 949d of this title. (C)To the assistance of counsel. (D)To self-representation, if the accused knowingly and competently waives the assistance of counsel, subject to the provisions of paragraph (4). (E)To the suppression of evidence that is not reliable or probative. (F)To the suppression of evidence the probative value of which is substantially outweighed by— (i)the danger of unfair prejudice, confusion of the issues, or misleading the members; or (ii)considerations of undue delay, waste of time, or needless presentation of cumulative evidence. (3)In making exceptions in the applicability in trials by military commission under this chapter from the procedures and rules otherwise applicable in general courts-martial, the Secretary of Defense may provide the following: (A)Evidence seized outside the United States shall not be excluded from trial by military commission on the grounds that the evidence was not seized pursuant to a search warrant or authorization. (B)A statement of the accused that is otherwise admissible shall not be excluded from trial by military commission on grounds of alleged coercion or compulsory self-incrimination so long as the evidence complies with the provisions of section 948r of this title. (C)Evidence shall be admitted as authentic so long as— (i)the military judge of the military commission determines that there is sufficient evidence that the evidence is what it is claimed to be; and (ii)the military judge instructs the members that they may consider any issue as to authentication or identification of evidence in determining the weight, if any, to be given to the evidence. (D)Hearsay evidence not otherwise admissible under the rules of evidence applicable in trial by general courts-martial may be admitted in a trial by military commission only if— (i)the proponent of the evidence makes known to the adverse party, sufficiently in advance of trial or hearing to provide the adverse party with a fair opportunity to meet the evidence, the proponent's intention to offer the evidence, and the particulars of the evidence (including information on the circumstances under which the evidence was obtained); and (ii)the military judge finds that the totality of the circumstances render the evidence more probative on the point for which it is offered than other evidence which the proponent can procure through reasonable efforts, taking into consideration the unique circumstances of the conduct of military and intelligence operations during hostilities. (4)(A)The accused in a military commission under this chapter who exercises the right to self-representation under paragraph (2)(D) shall conform his deportment and the conduct of the defense to the rules of evidence, procedure, and decorum applicable to trials by military commission. (B)Failure of the accused to conform to the rules described in subparagraph (A) may result in a partial or total revocation by the military judge of the right of self-representation under paragraph (2)(D). In such case, the detailed defense counsel of the accused or an appropriately authorized civilian counsel shall perform the functions necessary for the defense. (c)

Delegation of authority To prescribe regulations

The Secretary of Defense may delegate the authority of the Secretary to prescribe regulations under this chapter.

949b.

Unlawfully influencing action of military commission

(a)

In general

(1)No authority convening a military commission under this chapter may censure, reprimand, or admonish the military commission, or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the military commission, or with respect to any other exercises of its or their functions in the conduct of the proceedings. (2)No person may attempt to coerce or, by any unauthorized means, influence— (A)the action of a military commission under this chapter, or any member thereof, in reaching the findings or sentence in any case; (B)the action of any convening, approving, or reviewing authority with respect to their judicial acts; or (C)the exercise of professional judgment by trial counsel or defense counsel. (3)The provisions of this subsection shall not apply with respect to— (A)general instructional or informational courses in military justice if such courses are designed solely for the purpose of instructing members of a command in the substantive and procedural aspects of military commissions; or (B)statements and instructions given in open proceedings by a military judge or counsel. (b)

Prohibition on consideration of actions on commission in evaluation of fitness

In the preparation of an effectiveness, fitness, or efficiency report or any other report or document used in whole or in part for the purpose of determining whether a commissioned officer of the armed forces is qualified to be advanced in grade, or in determining the assignment or transfer of any such officer or whether any such officer should be retained on active duty, no person may— (1)consider or evaluate the performance of duty of any member of a military commission under this chapter; or (2)give a less favorable rating or evaluation to any commissioned officer because of the zeal with which such officer, in acting as counsel, represented any accused before a military commission under this chapter.

949c.

Duties of trial counsel and defense counsel

(a)

Trial counsel

The trial counsel of a military commission under this chapter shall prosecute in the name of the United States. (b)

Defense counsel

(1)The accused shall be represented in his defense before a military commission under this chapter as provided in this subsection. (2)The accused shall be represented by military counsel detailed under section 948k of this title. (3)The accused may be represented by civilian counsel if retained by the accused, provided that such civilian counsel— (A)is a United States citizen; (B)is admitted to the practice of law in a State, district, or possession of the United States, or before a Federal court; (C)has not been the subject of any sanction of disciplinary action by any court, bar, or other competent governmental authority for relevant misconduct; (D)has been determined to be eligible for access to information classified at the level Secret or higher; and (E)has signed a written agreement to comply with all applicable regulations or instructions for counsel, including any rules of court for conduct during the proceedings. (4)If the accused is represented by civilian counsel, military counsel detailed shall act as associate counsel. (5)The accused is not entitled to be represented by more than one military counsel. However, the person authorized under regulations prescribed under section 948k of this title to detail counsel, in such person's sole discretion, may detail additional military counsel to represent the accused. (6)Defense counsel may cross-examine each witness for the prosecution who testifies before a military commission under this chapter.

949d.

Sessions

(a)

Sessions without presence of members

(1)At any time after the service of charges which have been referred for trial by military commission under this chapter, the military judge may call the military commission into session without the presence of the members for the purpose of— (A)hearing and determining motions raising defenses or objections which are capable of determination without trial of the issues raised by a plea of not guilty; (B)hearing and ruling upon any matter which may be ruled upon by the military judge under this chapter, whether or not the matter is appropriate for later consideration or decision by the members; (C)if permitted by regulations prescribed by the Secretary of Defense, receiving the pleas of the accused; and (D)performing any other procedural function which may be performed by the military judge under this chapter or under rules prescribed pursuant to section 949a of this title and which does not require the presence of the members. (2)Except as provided in subsections (b), (c), and (d), any proceedings under paragraph (1) shall be conducted in the presence of the accused, defense counsel, and trial counsel, and shall be made part of the record. (b)

Deliberation or vote of members

When the members of a military commission under this chapter deliberate or vote, only the members may be present. (c)

Closure of proceedings

(1)The military judge may close to the public all or part of the proceedings of a military commission under this chapter. (2)The military judge may close to the public all or a portion of the proceedings under paragraph (1) only upon making a specific finding that such closure is necessary to— (A)protect information the disclosure of which could reasonably be expected to cause damage to the national security, including intelligence or law enforcement sources, methods, or activities; or (B)ensure the physical safety of individuals. (3)A finding under paragraph (2) may be based upon a presentation, including a presentation ex parte or in camera, by either trial counsel or defense counsel. (4)(A)Subject to the provisions of this paragraph, classified information shall be handled in accordance with rules applicable in trials by general courts-martial of the United States. (B)Classified information shall be protected and is privileged from disclosure if disclosure would be detrimental to the national security. This subparagraph applies to all stages of proceedings of military commissions under this chapter. (C)After the original classification authority or head of the agency concerned has certified in writing that evidence and the sources thereof have been declassified to the maximum extent possible, consistent with the requirements of national security, the military judge may, to the extent practicable in accordance with the rules applicable in trials by court-martial, authorize— (i)the deletion of specified items of classified information from documents made available to the accused; (ii)the substitution of a portion or summary of the information for such classified documents; or (iii)the substitution of a statement admitting relevant facts that the classified information would tend to prove. (D)A claim of privilege under this paragraph, and any materials in support thereof, shall, upon the request of the Government, be considered by the military judge in camera and shall not be disclosed to the accused. (d)

Exclusion of accused from certain proceedings

The military judge may exclude the accused from any portion of a proceeding upon a determination that, after being warned by the military judge, the accused persists in conduct that justifies exclusion from the courtroom— (1)to ensure the physical safety of individuals; or (2)to prevent disruption of the proceedings by the accused.

949e.

Continuances

The military judge in a military commission under this chapter may, for reasonable cause, grant a continuance to any party for such time, and as often, as may appear to be just.

949f.

Challenges

(a)

Challenges authorized

The military judge and members of a military commission under this chapter may be challenged by the accused or trial counsel for cause stated to the military commission. The military judge shall determine the relevance and validity of challenges for cause, and may not receive a challenge to more than one person at a time. Challenges by trial counsel shall ordinarily be presented and decided before those by the accused are offered. (b)

Peremptory challenges

The accused and trial counsel are each entitled to one peremptory challenge, but the military judge may not be challenged except for cause. (c)

Challenges against additional members

Whenever additional members are detailed to a military commission under this chapter, and after any challenges for cause against such additional members are presented and decided, the accused and trial counsel are each entitled to one peremptory challenge against members not previously subject to peremptory challenge.

949g.

Oaths

(a)

In general

(1)Before performing their respective duties in a military commission under this chapter, military judges, members, trial counsel, defense counsel, reporters, and interpreters shall take an oath to perform their duties faithfully. (2)The form of the oath required by paragraph (1), the time and place of the taking thereof, the manner of recording thereof, and whether the oath shall be taken for all cases in which duties are to be performed or for a particular case, shall be as provided in regulations prescribed by the Secretary of Defense. The regulations may provide that— (A)an oath to perform faithfully duties as a military judge, trial counsel, or defense counsel may be taken at any time by any judge advocate or other person certified to be qualified or competent for the duty; and (B)if such an oath is taken, such oath need not again be taken at the time the judge advocate or other person is detailed to that duty. (b)

Witnesses

Each witness before a military commission under this chapter shall be examined on oath. (c)

Oath defined

In this section, the term oath includes an affirmation.

949h.

Former jeopardy

(a)

In general

No person may, without his consent, be tried by a military commission under this chapter a second time for the same offense. (b)

Scope of trial

No proceeding in which the accused has been found guilty by military commission under this chapter upon any charge or specification is a trial in the sense of this section until the finding of guilty has become final after review of the case has been fully completed.

949i.

Pleas of the accused

(a)

Plea of not guilty

If an accused in a military commission under this chapter after a plea of guilty sets up matter inconsistent with the plea, or if it appears that the accused has entered the plea of guilty through lack of understanding of its meaning and effect, or if the accused fails or refuses to plead, a plea of not guilty shall be entered in the record, and the military commission shall proceed as though the accused had pleaded not guilty. (b)

Finding of guilt after guilty plea

With respect to any charge or specification to which a plea of guilty has been made by the accused in a military commission under this chapter and accepted by the military judge, a finding of guilty of the charge or specification may be entered immediately without a vote. The finding shall constitute the finding of the military commission unless the plea of guilty is withdrawn prior to announcement of the sentence, in which event the proceedings shall continue as though the accused had pleaded not guilty.

949j.

Opportunity to obtain witnesses and other evidence

(a)

In general

(1)Defense counsel in a military commission under this chapter shall have a reasonable opportunity to obtain witnesses and other evidence as provided in regulations prescribed by the Secretary of Defense. (2)Process issued in military commissions under this chapter to compel witnesses to appear and testify and to compel the production of other evidence— (A)shall be similar to that which courts of the United States having criminal jurisdiction may lawfully issue; and (B)shall run to any place where the United States shall have jurisdiction thereof. (b)

Disclosure of exculpatory evidence

As soon as practicable, trial counsel in a military commission under this chapter shall disclose to the defense the existence of any known evidence that reasonably tends to exculpate or reduce the degree of guilt of the accused. (c)

Treatment of certain items

In accordance with the rules applicable in trials by general courts-martial in the United States, and to the extent provided in such rules, the military judge in a military commission under this chapter may authorize trial counsel, in making documents available to the accused pursuant to subsections (a) and (b)— (1)to delete specified items of classified information from such documents; (2)to substitute an unclassified summary of the classified information in such documents; or (3)to substitute an unclassified statement admitting relevant facts that classified information in such documents would tend to prove.

949k.

Defense of lack of mental responsibility

(a)

Affirmative defense

It is an affirmative defense in a trial by military commission under this chapter that, at the time of the commission of the acts constituting the offense, the accused, as a result of a severe mental disease or defect, was unable to appreciate the nature and quality or the wrongfulness of the acts. Mental disease or defect does not otherwise constitute a defense. (b)

Burden of proof

The accused in a military commission under this chapter has the burden of proving the defense of lack of mental responsibility by clear and convincing evidence. (c)

Findings following assertion of defense

Whenever lack of mental responsibility of the accused with respect to an offense is properly at issue in a military commission under this chapter, the military judge shall instruct the members as to the defense of lack of mental responsibility under this section and shall charge the members to find the accused— (1)guilty; (2)not guilty; or (3)subject to subsection (d), not guilty by reason of lack of mental responsibility. (d)

Majority vote required for finding

The accused shall be found not guilty by reason of lack of mental responsibility under subsection (c)(3) only if a majority of the members present at the time the vote is taken determines that the defense of lack of mental responsibility has been established.

949l.

Voting and rulings

(a)

Vote by secret written ballot

Voting by members of a military commission under this chapter on the findings and on the sentence shall be by secret written ballot. (b)

Rulings

(1)The military judge in a military commission under this chapter shall rule upon all questions of law, including the admissibility of evidence and all interlocutory questions arising during the proceedings. (2)Any ruling made by the military judge upon a question of law or an interlocutory question (other than the factual issue of mental responsibility of the accused) is conclusive and constitutes the ruling of the military commission. However, a military judge may change his ruling at any time during the trial. (c)

Instructions prior to vote

Before a vote is taken of the findings of a military commission under this chapter, the military judge shall, in the presence of the accused and counsel, instruct the members as to the elements of the offense and charge the members— (1)that the accused must be presumed to be innocent until his guilt is established by legal and competent evidence beyond a reasonable doubt; (2)that in the case being considered, if there is a reasonable doubt as to the guilt of the accused, the doubt must be resolved in favor of the accused and he must be acquitted; (3)that, if there is reasonable doubt as to the degree of guilt, the finding must be in a lower degree as to which there is no reasonable doubt; and (4)that the burden of proof to establish the guilt of the accused beyond a reasonable doubt is upon the United States.

949m.

Number of votes required

(a)

Conviction

No person may be convicted by a military commission under this chapter of any offense, except as provided in section 949i(b) of this title or by concurrence of two-thirds of the members present at the time the vote is taken. (b)

Sentences

(1)Except as provided in paragraphs (2) and (3), sentences shall be determined by a military commission by the concurrence of two-thirds of the members present at the time the vote is taken. (2)No person may be sentenced to death by a military commission, except insofar as— (A)the penalty of death has been expressly authorized under this chapter, chapter 47 of this title, or the law of war for an offense of which the accused has been found guilty; (B)trial counsel expressly sought the penalty of death by filing an appropriate notice in advance of trial; (C)the accused was convicted of the offense by the concurrence of all the members present at the time the vote is taken; and (D)all members present at the time the vote was taken concurred in the sentence of death. (3)No person may be sentenced to life imprisonment, or to confinement for more than 10 years, by a military commission under this chapter except by the concurrence of three-fourths of the members present at the time the vote is taken. (c)

Number of members required for penalty of death

(1)Except as provided in paragraph (2), in a case in which the penalty of death is sought, the number of members of the military commission under this chapter shall be not less than 12 members. (2)In any case described in paragraph (1) in which 12 members are not reasonably available for a military commission 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 less than the number of members so specified. In any such case, the convening authority shall make a detailed written statement, to be appended to the record, stating why a greater number of members were not reasonably available.

949n.

Military commission to announce action

A military commission under this chapter shall announce its findings and sentence to the parties as soon as determined.

949o.

Record of trial

(a)

Record; authentication

Each military commission under this chapter shall keep a separate, 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 a member if the trial counsel is unable to authenticate it by reason of his death, disability, or absence. Where appropriate, and as provided in regulations prescribed by the Secretary of Defense, the record of a military commission under this chapter may contain a classified annex. (b)

Complete record required

A complete record of the proceedings and testimony shall be prepared in every military commission under this chapter. (c)

Provision of copy to accused

A copy of the record of the proceedings of the military commission under this chapter shall be given the accused as soon as it is authenticated. If the record contains classified information, or a classified annex, the accused shall receive a redacted version of the record consistent with the requirements of section 949d(c)(4) of this title. Defense counsel shall have access to the unredacted record, as provided in regulations prescribed by the Secretary of Defense.

V

Sentences

Sec. 949s. Cruel or unusual punishments prohibited. 949t. Maximum limits. 949u. Execution of confinement.

949s.

Cruel or unusual punishments prohibited

Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a military commission under this chapter or inflicted under this chapter upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited under this chapter.

949t.

Maximum limits

The punishment which a military commission under this chapter may direct for an offense may not exceed such limits as the President or Secretary of Defense may prescribe for that offense.

949u.

Execution of confinement

(a)

In general

Under such regulations as the Secretary of Defense may prescribe, a sentence of confinement adjudged by a military commission under this chapter may be carried into execution by confinement— (1)in any place of confinement under the control of any of the armed forces; or (2)in any penal or correctional institution under the control of the United States or its allies, or which the United States may be allowed to use. (b)

Treatment during confinement by other than the armed forces

Persons confined under subsection (a)(2) in a penal or correctional institution not under the control of an armed force are subject to the same discipline and treatment as persons confined or committed by the courts of the United States or of the State, District of Columbia, or place in which the institution is situated.

VI

Post-Trial Procedure and Review of Military Commissions

Sec. 950a. Error of law; lesser included offense. 950b. Review by the convening authority. 950c. Waiver or withdrawal of appeal. 950d. Appeal by the United States. 950e. Rehearings. 950f. Review by United States Court of Appeals for the Armed Forces and Supreme Court. 950g. Appellate counsel 950h. Execution of sentence; suspension of sentence. 950i. Finality of proceedings, findings, and sentences.

950a.

Error of law; lesser included offense

(a)

Error of law

A finding or sentence of a military commission under this chapter may not be held incorrect on the ground of an error of law unless the error materially prejudices the substantial rights of the accused. (b)

Lesser included offense

Any reviewing authority with the power to approve or affirm a finding of guilty by a military commission under this chapter may approve or affirm, instead, so much of the finding as includes a lesser included offense.

950b.

Review by the convening authority

(a)

Notice to convening authority of findings and sentence

The findings and sentence of a military commission under this chapter shall be reported in writing promptly to the convening authority after the announcement of the sentence. (b)

Submittal of matters by accused to convening authority

(1)The accused may submit to the convening authority matters for consideration by the convening authority with respect to the findings and the sentence of the military commission under this chapter. (2)(A)Except as provided in subparagraph (B), a submittal under paragraph (1) shall be made in writing within 20 days after accused has been give an authenticated record of trial under section 949o(c) of this title. (B)If the accused shows that additional time is required for the accused to make a submittal under paragraph (1), the convening authority may, for good cause, extend the applicable period under subparagraph (A) for not more than an additional 20 days. (3)The accused may waive his right to make a submittal to the convening authority under paragraph (1). Such a waiver shall 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 submittal under this subsection shall be deemed to have expired upon the submittal of a waiver under this paragraph to the convening authority. (c)

Action by convening authority

(1)The authority under this subsection to modify the findings and sentence of a military commission under this chapter is a matter of the sole discretion and prerogative of the convening authority. (2)The convening authority is not required to take action on the findings of a military commission under this chapter. If the convening authority takes action on the findings, the convening authority may, in his sole discretion, only— (A)dismiss any charge or specification by setting aside a finding of guilty thereto; or (B)change a finding of guilty to a charge to a finding of guilty to an offense that is a lesser included offense of the offense stated in the charge. (3)(A)The convening authority shall take action on the sentence of a military commission under this chapter. (B)Subject to regulations prescribed by the Secretary of Defense, action under this paragraph may be taken only after consideration of any matters submitted by the accused under subsection (b) or after the time for submitting such matters expires, whichever is earlier. (C)In taking action under this paragraph, the convening authority may, in his sole discretion, approve, disapprove, commute, or suspend the sentence in whole or in part. The convening authority may not increase a sentence beyond that which is found by the military commission. (4)The convening authority shall serve on the accused or on defense counsel notice of any action taken by the convening authority under this subsection. (d)

Order of revision or rehearing

(1)Subject to paragraphs (2) and (3), the convening authority of a military commission under this chapter may, in his sole discretion, order a proceeding in revision or a rehearing. (2)(A)Except as provided in subparagraph (B), a proceeding in revision may be ordered by the convening authority if— (i)there is an apparent error or omission in the record; or (ii)the record shows improper or inconsistent action by the military commission with respect to the findings or sentence that can be rectified without material prejudice to the substantial rights of the accused. (B)In no case may a proceeding in revision— (i)reconsider a finding of not guilty of a specification or a ruling which amounts to a finding of not guilty; (ii)reconsider a finding of not guilty of any charge, unless there has been a finding of guilty under a specification laid under that charge, which sufficiently alleges a violation; or (iii)increase the severity of the sentence unless the sentence prescribed for the offense is mandatory. (3)A rehearing may be ordered by the convening authority if the convening authority disapproves the findings and sentence and states the reasons for disapproval of the findings. If the convening authority disapproves the finding and sentence and does not order a rehearing, the convening authority shall dismiss the charges. A rehearing as to the findings may not be ordered by the convening authority when there is a lack of sufficient evidence in the record to support the findings. A rehearing as to the sentence may be ordered by the convening authority if the convening authority disapproves the sentence.

950c.

Waiver or withdrawal of appeal

(a)

Waiver of right of review

(1)An accused may file with the convening authority a statement expressly waiving the right of the accused to appellate review by the United States Court of Appeals for the Armed Forces under section 950f(a) of this title of the final decision of the military commission under this chapter. (2)A waiver under paragraph (1) shall be signed by both the accused and a defense counsel. (3)A waiver under paragraph (1) must be filed, if at all, within 10 days after notice of the action is served on the accused or on defense counsel under section 950b(c)(4) of this title. The convening authority, for good cause, may extend the period for such filing by not more than 30 days. (b)

Withdrawal of appeal

Except in a case in which the sentence as approved under section 950b of this title extends to death, the accused may withdraw an appeal at any time. (c)

Effect of waiver or withdrawal

A waiver of the right to appellate review or the withdrawal of an appeal under this section bars review under section 950f of this title.

950d.

Appeal by the United States

(a)

Interlocutory appeal

(1)Except as provided in paragraph (2), in a trial by military commission under this chapter, the United States may take an interlocutory appeal to the United States Court of Appeals for the Armed Forces under section 950f of this title of any order or ruling of the military judge that— (A)terminates proceedings of the military commission with respect to a charge or specification; (B)excludes evidence that is substantial proof of a fact material in the proceeding; or (C)relates to a matter under subsection (c) or (d) of section 949d of this title. (2)The United States may not appeal under paragraph (1) an order or ruling that is, or amounts to, a finding of not guilty by the military commission with respect to a charge or specification. (b)

Notice of appeal

The United States shall take an appeal of an order or ruling under subsection (a) by filing a notice of appeal with the military judge within five days after the date of the order or ruling. (c)

Appeal

An appeal under this section shall be forwarded, by means specified in regulations prescribed the Secretary of Defense, directly to the United States Court of Appeals for the Armed Forces. In ruling on an appeal under this section, the Court may act only with respect to matters of law.

950e.

Rehearings

(a)

Composition of military commission for rehearing

Each rehearing under this chapter shall take place before a military commission under this chapter composed of members who were not members of the military commission which first heard the case. (b)

Scope of rehearing

(1)Upon a rehearing— (A)the accused may not be tried for any offense of which he was found not guilty by the first military commission; and (B)no sentence in excess of or more than the original sentence may be imposed unless— (i)the sentence is based upon a finding of guilty of an offense not considered upon the merits in the original proceedings; or (ii)the sentence prescribed for the offense is mandatory. (2)Upon a rehearing, if the sentence approved after the first military commission was in accordance with a pretrial agreement and the accused at the rehearing changes his plea with respect to the charges or specifications upon which the pretrial agreement was based, or otherwise does not comply with pretrial agreement, the sentence as to those charges or specifications may include any punishment not in excess of that lawfully adjudged at the first military commission.

950f.

Review by United States Court of Appeals for the Armed Forces and Supreme Court

(a)

Review by United States Court of Appeals for the Armed Forces

(1)Subject to the provisions of this subsection, the United States Court of Appeals for the Armed Forces shall have exclusive jurisdiction to determine the final validity of any judgment rendered by a military commission under this chapter. (2)The United States Court of Appeals for the Armed Forces may not determine the final validity of a judgment of a military commission under this subsection until all other appeals from the judgment under this chapter have been waived or exhausted. (3)(A)An accused may seek a determination by the United States Court of Appeals for the Armed Forces of the final validity of the judgment of the military commission under this subsection only upon petition to the Court for such determination. (B)A petition on a judgment under subparagraph (A) shall be filed by the accused in the Court not later than 20 days after the date on which written notice of the final decision of the military commission is served on the accused or defense counsel. (C)The accused may not file a petition under subparagraph (A) if the accused has waived the right to appellate review under section 950c(a) of this title. (4)The determination by the United States Court of Appeals for the Armed Forces of the final validity of a judgment of a military commission under this subsection shall be governed by the provisions of section 1005(e)(3) of the Detainee Treatment Act of 2005 (42 U.S.C. 801 note). (b)

Review by Supreme Court

The Supreme Court of the United States may review by writ of certiorari pursuant to section 1257 of title 28 the final judgment of the United States Court of Appeals for the Armed Forces in a determination under subsection (a).

950g.

Appellate counsel

(a)

Appointment

The Secretary of Defense 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 of counsel for appearing before military commissions under this chapter. (b)

Representation of United States

Appellate counsel may represent the United States in any appeal or review proceeding under this chapter. Appellate Government counsel may represent the United States before the Supreme Court in case arising under this chapter when requested to do so by the Attorney General. (c)

Representation of accused

The accused shall be represented before the United States Court of Appeals for the Armed Forces or the Supreme Court by military appellate counsel, or by civilian counsel if retained by him.

950h.

Execution of sentence; suspension of sentence

(a)

Execution of sentence of death only upon approval by the President

If the sentence of a military commission under this chapter extends to death, that part of the sentence providing for death may not be executed until approved by the President. In such a case, the President may commute, remit, or suspend the sentence, or any part thereof, as he sees fit. (b)

Execution of sentence of death only upon final judgment of legality of proceedings

(1)If the sentence of a military commission under this chapter extends to death, the sentence may not be executed until there is a final judgement as to the legality of the proceedings (and with respect to death, approval under subsection (a)). (2)A judgement as to legality of proceedings is final for purposes of paragraph (1) when— (A)the time for the accused to file a petition for review by the United States Court of Appeals for the Armed Forces has expired and the accused has not filed a timely petition for such review and the case is not otherwise under review by the Court; or (B)review is completed in accordance with the judgment of the United States Court of Appeals for the Armed Forces and (A) a petition for a writ of certiorari is not timely filed, (B) such a petition is denied by the Supreme Court, or (C) review is otherwise completed in accordance with the judgment of the Supreme Court. (c)

Suspension of sentence

The Secretary of the Defense, 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.

950i.

Finality of proceedings, findings, and sentences

(a)

Finality

The appellate review of records of trial provided by this chapter, and 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 under this chapter are binding upon all departments, courts, agencies, and officers of the United States, except as otherwise provided by the President. (b)

Provisions of chapter sole basis for review of military commission procedures and actions

Except as otherwise provided in this chapter and notwithstanding any other provision of 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 under this chapter, including challenges to the lawfulness of procedures of military commissions under this chapter.

VII

Punitive Matters

Sec. 950aa. Definitions; construction of certain offenses; common circumstances. 950bb. Principals. 950cc. Accessory after the fact. 950dd. Conviction of lesser offenses. 950ee. Attempts. 950ff. Conspiracy. 950gg. Solicitation. 950hh. Murder of protected persons. 950ii. Attacking civilians. 950jj. Attacking civilian objects. 950kk. Attacking protected property. 950ll. Pillaging. 950mm. Denying quarter. 950nn. Taking hostages. 950oo. Employing poison or similar weapons. 950pp. Using protected persons as a shield. 950qq. Using protected property as a shield. 950rr. Torture. 950ss. Cruel, unusual, or inhumane treatment or punishment. 950tt. Intentionally causing serious bodily injury. 950uu. Mutilating or maiming. 950vv. Murder in violation of the law of war. 950ww. Destruction of property in violation of the law of war. 950xx. Using treachery or perfidy. 950yy. Improperly using a flag of truce. 950zz. Improperly using a distinctive emblem. 950aaa. Intentionally mistreating a dead body. 950bbb. Rape. 950ccc. Hijacking or hazarding a vessel or aircraft. 950ddd. Terrorism. 950eee. Providing material support for terrorism. 950fff. Wrongfully aiding the enemy. 950ggg. Spying. 950hhh. Contempt. 950iii. Perjury and obstruction of justice.

950aa.

Definitions; construction of certain offenses; common circumstances

(a)

Definitions

In this subchapter: (1)The term military objective means combatants and those objects during an armed conflict which, by their nature, location, purpose, or use, effectively contribute to the war-fighting or war-sustaining capability of an opposing force 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 an attack. (2)The term protected person means 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 out of combat by sickness, wounds, or detention, and military medical or religious personnel. (3)The term protected property means any property specifically protected by the law of war, including buildings dedicated to religion, education, art, science, or charitable purposes, historic monuments, hospitals, and places where the sick and wounded are collected, but only if and to the extent such property is not being used for military purposes or is not otherwise a military objective. The term includes objects properly identified by one of the distinctive emblems of the Geneva Conventions, but does not include civilian property that is a military objective. (b)

Construction of certain offenses

The intent required for offenses under sections 950hh, 950ii, 950jj, 950kk, and 950ss of this title precludes their applicability with regard to collateral damage or to death, damage, or injury incident to a lawful attack. (c)

Common circumstances

An offense specified in this subchapter is triable by military commission under this chapter only if the offense is committed in the context of and associated with armed conflict.

950bb.

Principals

Any person punishable under this chapter who— (1)commits an offense punishable by this chapter, or aids, abets, counsels, commands, or procures its commission; or (2)causes an act to be done which if directly performed by him would be punishable by this chapter, is a principal.

950cc.

Accessory after the fact

Any person subject to this chapter who, knowing that an offense punishable by this chapter has been committed, receives, comforts, or assists the offender in order to hinder or prevent his apprehension, trial, or punishment shall be punished as a military commission under this chapter may direct.

950dd.

Conviction of lesser offenses

An accused may be found guilty of an offense necessarily included in the offense charged or of an attempt to commit either the offense charged or an attempt to commit either the offense charged or an offense necessarily included therein.

950ee.

Attempts

(a)

In general

Any person subject to this chapter who attempts to commit any offense punishable by this chapter shall be punished as a military commission under this chapter may direct. (b)

Scope of offense

An act, done with specific intent to commit an offense under this chapter, amounting to more than mere preparation and tending, even though failing, to effect its commission, is an attempt to commit that offense. (c)

Effect of consummation

Any person subject to this chapter may be convicted of an attempt to commit an offense although it appears on the trial that the offense was consummated.

950ff.

Conspiracy

Any person subject to this chapter who conspires to commit one or more substantive offenses triable by military commission under this subchapter, and who knowingly does any overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950gg.

Solicitation

Any person subject to this chapter who solicits or advises another or others to commit one or more substantive offenses triable by military commission under this chapter 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 under this chapter may direct.

950hh.

Murder of protected persons

Any person subject to this chapter who intentionally kills one or more protected persons shall be punished by death or such other punishment as a military commission under this chapter may direct.

950ii.

Attacking civilians

Any person subject to this chapter who intentionally engages in an attack upon a civilian population as such, or individual civilians not taking active part in hostilities, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950jj.

Attacking civilian objects

Any person subject to this chapter who intentionally engages in an attack upon a civilian object that is not a military objective shall be punished as a military commission under this chapter may direct.

950kk.

Attacking protected property

Any person subject to this chapter who intentionally engages in an attack upon protected property shall be punished as a military commission under this chapter may direct.

950ll.

Pillaging

Any person subject to this chapter 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 punished as a military commission under this chapter may direct.

950mm.

Denying quarter

Any person subject to this chapter who, with effective command or control over subordinate groups, declares, orders, or otherwise indicates to those groups that there shall be no survivors or surrender accepted, with the intent to threaten an adversary or to conduct hostilities such that there would be no survivors or surrender accepted, shall be punished as a military commission under this chapter may direct.

950nn.

Taking hostages

Any person subject to this chapter 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 punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950oo.

Employing poison or similar weapons

Any person subject to this chapter who intentionally, as a method of warfare, employs a substance or 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 punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950pp.

Using protected persons as a shield

Any person subject to this chapter 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 punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950qq.

Using protected property as a shield

Any person subject to this chapter who positions, or otherwise takes advantage of the location of, protected property with the intent to shield a military objective from attack, or to shield, favor, or impede military operations, shall be punished as a military commission under this chapter may direct.

950rr.

Torture

(a)

Offense

Any person subject to this chapter 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 punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. (b)

Severe mental pain or suffering defined

In this section, the term severe mental pain or suffering has the meaning given that term in section 2340(2) of title 18.

950ss.

Cruel, unusual, or inhumane treatment or punishment

Any person subject to this chapter who subjects another person in their custody or under their physical control, regardless of nationality or physical location, to cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the Constitution of the United States shall be punished, if death results to the victim, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to the victim, by such punishment, other than death, as a military commission under this chapter may direct.

950tt.

Intentionally causing serious bodily injury

(a)

Offense

Any person subject to this chapter who intentionally causes serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct. (b)

Serious bodily injury defined

In this section, the term serious bodily injury means bodily injury which involves— (1)a substantial risk of death; (2)extreme physical pain; (3)protracted and obvious disfigurement; or (4)protracted loss or impairment of the function of a bodily member, organ, or mental faculty.

950uu.

Mutilating or maiming

Any person subject to this chapter who intentionally injures one or more protected persons by disfiguring the person or persons by any mutilation of the person or persons, or by permanently disabling any member, limb, or organ of the body of the person or persons, without any legitimate medical or dental purpose, shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950vv.

Murder in violation of the law of war

Any person subject to this chapter who intentionally kills one or more persons, including lawful combatants, in violation of the law of war shall be punished by death or such other punishment as a military commission under this chapter may direct.

950ww.

Destruction of property in violation of the law of war

Any person subject to this chapter who intentionally destroys property belonging to another person in violation of the law of war shall punished as a military commission under this chapter may direct.

950xx.

Using treachery or perfidy

Any person subject to this chapter 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 punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950yy.

Improperly using a flag of truce

Any person subject to this chapter who uses a flag of truce to feign an intention to negotiate, surrender, or otherwise suspend hostilities when there is no such intention shall be punished as a military commission under this chapter may direct.

950zz.

Improperly using a distinctive emblem

Any person subject to this chapter 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 punished as a military commission under this chapter may direct.

950aaa.

Intentionally mistreating a dead body

Any person subject to this chapter who intentionally mistreats the body of a dead person, without justification by legitimate military necessary, shall be punished as a military commission under this chapter may direct.

950bbb.

Rape

Any person subject to this chapter 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 punished as a military commission under this chapter may direct.

950ccc.

Hijacking or hazarding a vessel or aircraft

Any person subject to this chapter who intentionally seizes, exercises unauthorized control over, or endangers the safe navigation of a vessel or aircraft that is not a legitimate military objective shall be punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950ddd.

Terrorism

Any person subject to this chapter who intentionally kills or inflicts great bodily harm on one or more protected 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 punished, if death results to one or more of the victims, by death or such other punishment as a military commission under this chapter may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a military commission under this chapter may direct.

950eee.

Providing material support for terrorism

(a)

Offense

Any person subject to this chapter 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 set forth in section 950ddd of this title), 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 so set forth), shall be punished as a military commission under this chapter may direct. (b)

Material support or resources defined

In this section, the term material support or resources has the meaning given that term in section 2339A(b) of title 18.

950fff.

Wrongfully aiding the enemy

Any person subject to this chapter who, in breach of an allegiance or duty to the United States, knowingly and intentionally aids an enemy of the United States, or one of the co-belligerents of the enemy, shall be punished as a military commission under this chapter may direct.

950ggg.

Spying

Any person subject to this chapter who, in violation of the law of war and 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 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 the co-belligerents of the enemy, shall be punished by death or such other punishment as a military commission under this chapter may direct.

950hhh.

Contempt

A military commission under this chapter 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.

950iii.

Perjury and obstruction of justice

A military commission under this chapter may try offenses and impose such punishment as the military commission may direct for perjury, false testimony, or obstruction of justice related to the military commission.

. (2)

Tables of chapters amendments

The tables of chapters at the beginning of subtitle A and part II of subtitle A of title 10, United States Code, are each amended by inserting after the item relating to chapter 47 the following new item: “Chapter 47A. Military Commissions948a”. (b)

Submittal of procedures to Congress

(1)

Submittal of procedures

Not later than 90 days after the date of the enactment of this Act, the Secretary of Defense shall submit to the Committees on Armed Services of the Senate and the House of Representatives a report setting forth the procedures for military commissions prescribed under chapter 47A of title 10, United States Code (as added by subsection (a)). (2)

Submittal of modifications

Not later than 60 days before the date on which any proposed modification of the procedures described in paragraph (1) shall go into effect, the Secretary shall submit to the committees of Congress referred to in that paragraph a report describing such modification.

5.

Amendments to other laws

(a)

Detainee Treatment Act of 2005

Section 1004(b) of the Detainee Treatment Act of 2005 (title X of Public Law 109–148; 119 Stat. 2740; 42 U.S.C. 200dd–1(b)) is amended— (1)by striking may provide and inserting shall provide; (2)by inserting or investigation after criminal prosecution; and (3)by inserting whether before United States courts or agencies, foreign courts or agencies, or international courts or agencies, after described in that subsection,. (b)

Uniform Code of Military Justice

Chapter 47 of title, 10, United States Code (the Uniform Code of Military Justice), is amended as follows: (1)Section 802 (article 2 of the Uniform Code of Military Justice) is amended by adding at the end the following new paragraph: (13)Lawful enemy combatants (as that term is defined in section 948a(3) of this title) who violate the law of war. . (2)Section 821 (article 21 of the Uniform Code of Military Justice) is amended by striking by statute or law of war. (3)Section 836(a) (article 36(a) of the Uniform Code of Military Justice) is amended by inserting (other than military commissions under chapter 47A of this title) after other military tribunals. (c)

Punitive Article of Conspiracy

Section 881 of title 10, United States Code (article 81 of the Uniform Code of Military Justice)), is amended— (1)by inserting (a) before Any person; and (2)by adding at the end the following new subsection: (b)Any person subject to this chapter or chapter 47A of this title who conspires with any other person to commit an offense under the law of war, and who knowingly does an overt act to effect the object of the conspiracy, shall be punished, if death results to one or more of the victims, by death or such other punishment as a court-martial or military commission may direct, and, if death does not result to any of the victims, by such punishment, other than death, as a court-martial or military commission may direct. . (d)

Review of judgments of military commissions

(1)

Review by supreme court

Section 1259 of title 28, United States Code, is amended by adding at the end the following new paragraph: (5)Cases tried by military commission and reviewed by the United States Court of Appeals for the Armed Forces under section 950f of title 10. . (2)

Detainee treatment act of 2005

Section 1005(e) of the Detainee Treatment Act of 2005 (title X of Public Law 109–148; 119 Stat. 2740; 10 U.S.C. 801 note) is amended— (A)in paragraphs (3) and (4), by striking United States Court of Appeals for the District of Columbia Circuit each place it appears and inserting United States Court of Appeals for the Armed Forces; and (B)in paragraph (3)— (i)in subparagraph (A), by striking pursuant to Military Commission Order No. 1. dated August 31, 2005 (or any successor military order) and inserting by a military commission under chapter 47A of title 10, United States Code; (ii)by striking subparagraph (B) and inserting the following new subparagraph (B): (ii)

Grant of review

Review under this paragraph shall be as of right. ; (iii)in subparagraph (C)— (I)in clause (i)— (aa)by striking pursuant to the military order and inserting by a military commission; and (bb)by striking at Guantanamo Bay, Cuba; and (II)in clause (ii), by striking pursuant to such military order and inserting by the military commission; and (iv)in subparagraph (D)(i), by striking specified in the military order and inserting specified for a military commission.

6.

Habeas corpus matters

(a)

In general

Section 2241 of title 28, United States Code, is amended— (1)by striking subsection (e) (as added by section 1005(e)(1) of Public Law 109–148 (119 Stat. 2742)) and by striking subsection (e) (as added by added by section 1405(e)(1) of Public Law 109–163 (119 Stat. 3477)); and (2)by adding at the end the following new subsection: (e)(1)No court, justice, or judge shall have jurisdiction to hear or consider an application for a writ of habeas corpus filed by or on behalf of an alien detained outside of the United States who— (A)is currently in United States custody; or (B)has been determined by the United States to have been properly detained as an enemy combatant. (2)Except as provided in paragraphs (2) and (3) of section 1005(e) of the Detainee Treatment Act of 2005 (10 U.S.C. 801 note), no court, justice, or judge shall have jurisdiction to hear or consider any other action against the United States or its agents relating to any aspect of the detention, treatment, or trial of an alien detained outside of the United States who— (A)is currently in United States custody; or (B)has been determined by the United States to have been properly detained as an enemy combatant. (3)In this subsection, the term United States, when used in a geographic sense, has the meaning given that term in section 1005(g) of the Detainee Treatment Act of 2005. . (b)

Effective date

The amendments made by subsection (a) shall take effect on the date of the enactment of this Act, and shall apply to all cases, without exception, pending on or after the date of the enactment of this Act which relate to any aspect of the detention, treatment, or trial of an alien detained outside the United States (as that term is defined in section 2241(e)(3) of title 28, United States Code (as added by subsection (a)) since September 11, 2001.

7.

Treaty obligations not establishing grounds for certain claims

(a)

In general

No person may invoke the Geneva Conventions or any protocols thereto as an individually enforceable right in any civil action against an officer, employee, member of the Armed Forces or another agent of the United States Government, or against the United States, for the purpose of any claim for damages for death, injury, or damage to property in any court of the United States or its States or territories. This subsection does not affect the obligations of the United States under the Geneva Conventions. (b)

Geneva conventions defined

In this section, the term Geneva conventions means— (1)the Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, done at Geneva August 12, 1949 (6 UST 3114); (2)the Convention for the Amelioration of the Condition of the Wounded, Sick, and Shipwrecked Members of the Armed Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217); (3)the Convention Relative to the Treatment of Prisoners of War, done at Geneva August 12, 1949 (6 UST 3316); and (4)the Convention Relative to the Protection of Civilian Persons in Time of War, done at Geneva August 12, 1949 (6 UST 3516).

8.

Revision to war crimes offense under Federal criminal code

(a)

In general

Section 2441 of title 18, United States Code, is amended— (1)in subsection (c), by striking paragraph (3) and inserting the following new paragraph (3): (3)which constitutes a grave breach of common Article 3 (as defined in subsection (d)) when committed in the context of and in association with an armed conflict not of an international character; or ; and (2)by adding at the end the following new subsection: (d)

Common article 3 violations

(1)

Grave breach of common article 3

In subsection (c)(3), the term grave breach of common Article 3 means any conduct (such conduct constituting a grave breach of common Article 3 of the international conventions done at Geneva August 12, 1949), as follows: (A)

Torture

The act of a 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. (B)

Cruel, unusual, or inhumane treatment or punishment

The act of a person who subjects another person in the custody or under the physical control of the United States Government, regardless of nationality or physical location, to cruel, unusual, or inhumane treatment or punishment prohibited by the Fifth, Eighth, and 14th Amendments to the Constitution of the United States. (C)

Performing biological experiments

The act of a 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 or dental purpose and in so doing endangers the body or health of such person or persons. (D)

Murder

The act of a 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 hostilities, including those placed out of active combat by sickness, wounds, detention, or any other cause. (E)

Mutilation or maiming

The act of a 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 hostilities, including those placed out of active combat by sickness, wounds, detention, or any other cause, by disfiguring such person or persons by any mutilation thereof or by permanently disabling any member, limb, or organ of the body of such person or persons, without any legitimate medical or dental purpose. (F)

Intentionally causing serious bodily injury

The act of a person who intentionally causes, or conspires or attempts to cause, serious bodily injury to one or more persons, including lawful combatants, in violation of the law of war. (G)

Rape

The act of a 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. (H)

Sexual assault or abuse

The act of 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. (I)

Taking hostages

The act of a 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. (2)

Definitions

In the case of an offense under subsection (a) by reason of subsection (c)(3)— (A)the term severe mental pain or suffering shall be applied for purposes of paragraph (1)(A) in accordance with the meaning given that term in section 2340(2) of this title; (B)the term serious bodily injury shall be applied for purposes of paragraph (1)(F) in accordance with the meaning given that term in section 113(b)(2) of this title; and (C)the term sexual contact shall be applied for purposes of paragraph (1)(G) in accordance with the meaning given that term in section 2246(3) of this title. (3)

Inapplicability of certain provisions with respect to collateral damage or incident of lawful attack

The intent specified for the conduct stated in subparagraphs (D), (E), and (F) of paragraph (1) precludes the applicability of those subparagraphs to an offense under subsection (a) by reasons of subsection (c)(3) with respect to— (A)collateral damage; or (B)death, damage, or injury incident to a lawful attack. (4)

Inapplicability of taking hostages to prisoner exchange

Paragraph (1)(I) does not apply to an offense under subsection (a) by reason of subsection (c)(3) in the case of a prisoner exchange during wartime. . (b)

Construction

Such section is further amended by adding at the end the following new subsections: (e)

Inapplicability of foreign sources of law in interpretation

No foreign source of law shall be considered in defining or interpreting the obligations of the United States under this title. (f)

Nature of criminal sanctions

The criminal sanctions in this section provide penal sanctions under the domestic law of the United States for grave breaches of the international conventions done at Geneva August 12, 1949. Such criminal sanctions do not alter the obligations of the United States under those international conventions. . (c)

Protection of certain United States Government personnel

Such section is further amended by adding at the end the following new subsection: (g)

Protection of certain United States Government personnel

The provisions of section 1004 of the Detainee Treatment Act of 2005 (42 U.S.C. 2000dd–1) shall apply with respect to any criminal prosecution relating to the detention and interrogation of individuals described in such provisions that is grounded in an offense under subsection (a) by reason of subsection (c)(3) with respect to actions occurring between September 11, 2001, and December 30, 2005. .

9.

Detention covered by review of decisions of Combatant Status Review Tribunals of propriety of detention

Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005 (title X of Public Law 109–148; 119 Stat. 2742; 10 U.S.C. 801 note) is amended by striking the Department of Defense at Guantanamo Bay, Cuba and inserting the United States.

10.

Severability

If any provision of this Act or amendment made by a provision of this Act, or the application of such provision or amendment to any person or circumstance, is held to be unconstitutional, the remainder of this Act and the amendments made by this Act, and the application of such provisions and amendments to any other person or circumstance, shall not be affected thereby.

September 14, 2006 Read twice and placed on the calendar