[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3930 Engrossed in Senate (ES)]


  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
  
109th CONGRESS
  2d Session
                                S. 3930

_______________________________________________________________________

                                 AN ACT


 
To authorize trial by military commission for violations of the law of 
                      war, and for other purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Military 
Commissions Act of 2006''.
    (b) Table of Contents.--The table of contents for this Act is as 
follows:

Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military 
                            commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to 
                            protection of certain United States 
                            Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status 
                            Review Tribunals of propriety of detention.

SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH MILITARY 
              COMMISSIONS.

    The authority to establish military commissions under chapter 47A 
of title 10, United States Code, as added by section 3(a), may not be 
construed to alter or limit the authority of the President under the 
Constitution of the United States 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.

SEC. 3. MILITARY COMMISSIONS.

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

                  ``CHAPTER 47A--MILITARY COMMISSIONS

``Subchapter
``I. General Provisions.....................................       948a
``II. Composition of Military Commissions...................       948h
``III. Pre-Trial Procedure..................................       948q
``IV. Trial Procedure.......................................       949a
``V. Sentences..............................................       949s
``VI. Post-Trial Procedure and Review of Military                  950a
                            Commissions.
``VII. Punitive Matters.....................................       950p

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.
``Sec. 948a. Definitions
    ``In this chapter:
            ``(1) Unlawful enemy combatant.--(A) The term `unlawful 
        enemy combatant' means--
                    ``(i) a person who has engaged in hostilities or 
                who has purposefully and materially supported 
                hostilities against the United States or its co-
                belligerents who is not a lawful enemy combatant 
                (including a person who is part of the Taliban, al 
                Qaeda, or associated forces); or
                    ``(ii) a person who, before, on, or after the date 
                of the enactment of the Military Commissions Act of 
                2006, has been determined to be an unlawful enemy 
                combatant by a Combatant Status Review Tribunal or 
                another competent tribunal established under the 
                authority of the President or the Secretary of Defense.
            ``(B) Co-belligerent.--In this paragraph, the term `co-
        belligerent', with respect to the United States, means any 
        State or armed force joining and directly engaged with the 
        United States in hostilities or directly supporting hostilities 
        against a common enemy.
            ``(2) Lawful enemy combatant.--The term `lawful enemy 
        combatant' means a person 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.
            ``(3) Alien.--The term `alien' means a person who is not a 
        citizen of the United States.
            ``(4) 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)).
            ``(5) Geneva conventions.--The term `Geneva Conventions' 
        means the international conventions signed at Geneva on August 
        12, 1949.
``Sec. 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) Authority for Military Commissions Under This Chapter.--The 
President is authorized to establish military commissions under this 
chapter for offenses triable by military commission as provided in this 
chapter.
    ``(c) 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 in this chapter. The judicial construction and 
application of that chapter are not binding on military commissions 
established under this chapter.
    ``(d) 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 this chapter.
    ``(e) 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.
    ``(f) Status of Commissions Under Common Article 3.--A military 
commission established under this chapter is a regularly constituted 
court, affording all the necessary `judicial guarantees which are 
recognized as indispensable by civilized peoples' for purposes of 
common Article 3 of the Geneva Conventions.
    ``(g) Geneva Conventions Not Establishing Source of Rights.--No 
alien unlawful enemy combatant subject to trial by military commission 
under this chapter may invoke the Geneva Conventions as a source of 
rights.
``Sec. 948c. Persons subject to military commissions
    ``Any alien unlawful enemy combatant is subject to trial by 
military commission under this chapter.
``Sec. 948d. Jurisdiction of military commissions
    ``(a) Jurisdiction.--A military commission under this chapter shall 
have jurisdiction to try any offense made punishable by this chapter or 
the law of war when committed by an alien unlawful enemy combatant 
before, on, or after September 11, 2001.
    ``(b) Lawful Enemy Combatants.--Military commissions under this 
chapter shall not have jurisdiction over lawful enemy combatants. 
Lawful enemy combatants who violate the law of war are subject to 
chapter 47 of this title. Courts-martial established under that chapter 
shall have jurisdiction to try a lawful enemy combatant for any offense 
made punishable under this chapter.
    ``(c) Determination of Unlawful Enemy Combatant Status 
Dispositive.--A finding, whether before, on, or after the date of the 
enactment of the Military Commissions Act of 2006, by a Combatant 
Status Review Tribunal or another competent tribunal established under 
the authority of the President or the Secretary of Defense that a 
person is an unlawful enemy combatant is dispositive for purposes of 
jurisdiction for trial by military commission under this chapter.
    ``(d) Punishments.--A military commission under this chapter may, 
under such limitations as the Secretary of Defense may prescribe, 
adjudge any punishment not forbidden by this chapter, including the 
penalty of death when authorized under this chapter or the law of war.
``Sec. 948e. Annual report to congressional committees
    ``(a) 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 under this chapter during such 
year.
    ``(b) Form.--Each report under this section shall be submitted in 
unclassified form, but may include a classified annex.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional 
                            members.
``Sec. 948h. Who may convene military commissions
    ``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.
``Sec. 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.
    ``(b) Detail of Members.--When convening a military commission 
under this chapter, the convening authority shall detail as members of 
the commission such members of the armed forces eligible under 
subsection (a), 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.
``Sec. 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) Qualifications.--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 of the commission 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 of the commission.
    ``(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.
``Sec. 948k. Detail of trial counsel and defense counsel
    ``(a) Detail of Counsel Generally.--(1) Trial counsel and military 
defense counsel shall be detailed for each 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 after the swearing of 
charges against the accused.
    ``(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 
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--
                    ``(A) is 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) is 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--
                    ``(A) is a member of the bar of a Federal court or 
                of the highest court of a State; and
                    ``(B) is 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.
``Sec. 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 commission 
qualified court reporters, who shall make a verbatim recording of the 
proceedings of and testimony taken before the 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 commission and, as necessary, 
for trial counsel and defense counsel 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 commission, who shall also be responsible for 
preparing the record of the proceedings.
``Sec. 948m. Number of members; excuse of members; absent and 
              additional members
    ``(a) Number of Members.--(1) A military commission under this 
chapter shall, except as provided in paragraph (2), have at least five 
members.
    ``(2) In a case in which the 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.

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; treatment of 
                            statements obtained by torture and other 
                            statements.
``948s. Service of charges.
``Sec. 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 the 
        signer's 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 against him as soon as practicable.
``Sec. 948r. Compulsory self-incrimination prohibited; treatment of 
              statements obtained by torture and other statements
    ``(a) In General.--No person shall be required to testify against 
himself at a proceeding of a military commission under this chapter.
    ``(b) Exclusion of Statements Obtained by Torture.--A statement 
obtained by use of torture shall not be admissible in a military 
commission under this chapter, except against a person accused of 
torture as evidence that the statement was made.
    ``(c) Statements Obtained Before Enactment of Detainee Treatment 
Act of 2005.--A statement obtained before December 30, 2005 (the date 
of the enactment of the Defense Treatment Act of 2005) in which the 
degree of coercion is disputed may be admitted only if the military 
judge finds that--
            ``(1) the totality of the circumstances renders the 
        statement reliable and possessing sufficient probative value; 
        and
            ``(2) the interests of justice would best be served by 
        admission of the statement into evidence.
    ``(d) Statements Obtained After Enactment of Detainee Treatment Act 
of 2005.--A statement obtained on or after December 30, 2005 (the date 
of the enactment of the Defense Treatment Act of 2005) in which the 
degree of coercion is disputed may be admitted only if the military 
judge finds that--
            ``(1) the totality of the circumstances renders the 
        statement reliable and possessing sufficient probative value;
            ``(2) the interests of justice would best be served by 
        admission of the statement into evidence; and
            ``(3) the interrogation methods used to obtain the 
        statement do not amount to cruel, inhuman, or degrading 
        treatment prohibited by section 1003 of the Detainee Treatment 
        Act of 2005.
``Sec. 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. Such charges shall be served in English and, if appropriate, in 
another language that the accused understands. Such service shall be 
made sufficiently in advance of trial to prepare a defense.

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``Sec. 949a. Rules
    ``(a) Procedures 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, in consultation with the Attorney General. 
Such procedures shall, so far as the Secretary considers practicable or 
consistent with military or intelligence activities, apply the 
principles of law and the rules of evidence in trial by general courts-
martial. Such procedures and rules of evidence may not be contrary to 
or inconsistent with this chapter.
    ``(b) Rules for Military Commission.--(1) Notwithstanding any 
departures from the law and the rules of evidence in trial by general 
courts-martial authorized by subsection (a), the procedures and rules 
of evidence in trials by military commission under this chapter shall 
include the following:
            ``(A) The accused shall be permitted to present evidence in 
        his defense, to cross-examine the witnesses who testify against 
        him, and to examine and respond to evidence admitted against 
        him on the issue of guilt or innocence and for sentencing, as 
        provided for by this chapter.
            ``(B) The accused shall 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) The accused shall receive the assistance of counsel 
        as provided for by section 948k.
            ``(D) The accused shall be permitted to represent himself, 
        as provided for by paragraph (3).
    ``(2) In establishing procedures and rules of evidence for military 
commission proceedings, the Secretary of Defense may prescribe the 
following provisions:
            ``(A) Evidence shall be admissible if the military judge 
        determines that the evidence would have probative value to a 
        reasonable person.
            ``(B) Evidence shall not be excluded from trial by military 
        commission on the grounds that the evidence was not seized 
        pursuant to a search warrant or other authorization.
            ``(C) 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.
            ``(D) Evidence shall be admitted as authentic so long as--
                    ``(i) the military judge of the military commission 
                determines that there is sufficient basis to find 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.
            ``(E)(i) Except as provided in clause (ii), 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 if the proponent of the 
        evidence makes known to the adverse party, sufficiently in 
        advance to provide the adverse party with a fair opportunity to 
        meet the evidence, the intention of the proponent to offer the 
        evidence, and the particulars of the evidence (including 
        information on the general circumstances under which the 
        evidence was obtained). The disclosure of evidence under the 
        preceding sentence is subject to the requirements and 
        limitations applicable to the disclosure of classified 
        information in section 949j(c) of this title.
            ``(ii) Hearsay evidence not otherwise admissible under the 
        rules of evidence applicable in trial by general courts-martial 
        shall not be admitted in a trial by military commission if the 
        party opposing the admission of the evidence demonstrates that 
        the evidence is unreliable or lacking in probative value.
            ``(F) The military judge shall exclude any evidence the 
        probative value of which is substantially outweighed--
                    ``(i) by the danger of unfair prejudice, confusion 
                of the issues, or misleading the commission; or
                    ``(ii) by considerations of undue delay, waste of 
                time, or needless presentation of cumulative evidence.
    ``(3)(A) The accused in a military commission under this chapter 
who exercises the right to self-representation under paragraph (1)(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 
(1)(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.
    ``(d) Notification to Congressional Committees of Changes to 
Procedures.--Not later than 60 days before the date on which any 
proposed modification of the procedures in effect for military 
commissions under this chapter goes into effect, the Secretary of 
Defense shall submit to the Committee on Armed Services of the Senate 
and the Committee on Armed Services of the House of Representatives a 
report describing the modification.
``Sec. 949b. Unlawfully influencing action of military commission
    ``(a) In General.--(1) No authority convening a military commission 
under this chapter may censure, reprimand, or admonish the 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 his 
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 his judicial acts; or
            ``(C) the exercise of professional judgment by trial 
        counsel or defense counsel.
    ``(3) Paragraphs (1) and (2) do 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.
``Sec. 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, but only if 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 
        classified information that is 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) Civilian defense counsel shall protect any classified 
information received during the course of representation of the accused 
in accordance with all applicable law governing the protection of 
classified information and may not divulge such information to any 
person not authorized to receive it.
    ``(5) If the accused is represented by civilian counsel, detailed 
military counsel shall act as associate counsel.
    ``(6) 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 that 
person's sole discretion, may detail additional military counsel to 
represent the accused.
    ``(7) Defense counsel may cross-examine each witness for the 
prosecution who testifies before a military commission under this 
chapter.
``Sec. 949d. Sessions
    ``(a) Sessions Without Presence of Members.--(1) At any time after 
the service of charges which have been referred for trial by military 
commission 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 (c) and (e), any 
proceedings under paragraph (1) shall--
            ``(A) be conducted in the presence of the accused, defense 
        counsel, and trial counsel; and
            ``(B) be made part of the record.
    ``(b) Proceedings in Presence of Accused.--Except as provided in 
subsections (c) and (e), all proceedings of a military commission under 
this chapter, including any consultation of the members with the 
military judge or counsel, shall--
            ``(1) be in the presence of the accused, defense counsel, 
        and trial counsel; and
            ``(2) be made a part of the record.
    ``(c) Deliberation or Vote of Members.--When the members of a 
military commission under this chapter deliberate or vote, only the 
members may be present.
    ``(d) 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, but only in accordance with this subsection.
    ``(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.
    ``(e) 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.
    ``(f) Protection of Classified Information.--
            ``(1) National security privilege.--(A) Classified 
        information shall be protected and is privileged from 
        disclosure if disclosure would be detrimental to the national 
        security. The rule in the preceding sentence applies to all 
        stages of the proceedings of military commissions under this 
        chapter.
            ``(B) The privilege referred to in subparagraph (A) may be 
        claimed by the head of the executive or military department or 
        government agency concerned based on a finding by the head of 
        that department or agency that--
                    ``(i) the information is properly classified; and
                    ``(ii) disclosure of the information would be 
                detrimental to the national security.
            ``(C) A person who may claim the privilege referred to in 
        subparagraph (A) may authorize a representative, witness, or 
        trial counsel to claim the privilege and make the finding 
        described in subparagraph (B) on behalf of such person. The 
        authority of the representative, witness, or trial counsel to 
        do so is presumed in the absence of evidence to the contrary.
            ``(2) Introduction of classified information.--
                    ``(A) Alternatives to disclosure.--To protect 
                classified information from disclosure, the military 
                judge, upon motion of trial counsel, shall authorize, 
                to the extent practicable--
                            ``(i) the deletion of specified items of 
                        classified information from documents to be 
                        introduced as evidence before the military 
                        commission;
                            ``(ii) the substitution of a portion or 
                        summary of the information for such classified 
                        documents; or
                            ``(iii) the substitution of a statement of 
                        relevant facts that the classified information 
                        would tend to prove.
                    ``(B) Protection of sources, methods, or 
                activities.--The military judge, upon motion of trial 
                counsel, shall permit trial counsel to introduce 
                otherwise admissible evidence before the military 
                commission, while protecting from disclosure the 
                sources, methods, or activities by which the United 
                States acquired the evidence if the military judge 
                finds that (i) the sources, methods, or activities by 
                which the United States acquired the evidence are 
                classified, and (ii) the evidence is reliable. The 
                military judge may require trial counsel to present to 
                the military commission and the defense, to the extent 
                practicable and consistent with national security, an 
                unclassified summary of the sources, methods, or 
                activities by which the United States acquired the 
                evidence.
                    ``(C) Assertion of national security privilege at 
                trial.--During the examination of any witness, trial 
                counsel may object to any question, line of inquiry, or 
                motion to admit evidence that would require the 
                disclosure of classified information. Following such an 
                objection, the military judge shall take suitable 
                action to safeguard such classified information. Such 
                action may include the review of trial counsel's claim 
                of privilege by the military judge in camera and on an 
                ex parte basis, and the delay of proceedings to permit 
                trial counsel to consult with the department or agency 
                concerned as to whether the national security privilege 
                should be asserted.
            ``(3) Consideration of privilege and related materials.--A 
        claim of privilege under this subsection, and any materials 
        submitted in support thereof, shall, upon request of the 
        Government, be considered by the military judge in camera and 
        shall not be disclosed to the accused.
            ``(4) Additional regulations.--The Secretary of Defense may 
        prescribe additional regulations, consistent with this 
        subsection, for the use and protection of classified 
        information during proceedings of military commissions under 
        this chapter. A report on any regulations so prescribed, or 
        modified, shall be submitted to the Committees on Armed 
        Services of the Senate and the House of Representatives not 
        later than 60 days before the date on which such regulations or 
        modifications, as the case may be, go into effect.
``Sec. 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.
``Sec. 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 commission. The military judge 
shall determine the relevance and validity of challenges for cause. The 
military judge 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.--Each accused and the trial counsel 
are entitled to one peremptory challenge. 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, each accused and the trial counsel are entitled 
to one peremptory challenge against members not previously subject to 
peremptory challenge.
``Sec. 949g. Oaths
    ``(a) In General.--(1) Before performing their respective duties 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 the same, 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 prescribed in 
regulations of the Secretary of Defense. Those 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.
``Sec. 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.
``Sec. 949i. Pleas of the accused
    ``(a) Entry of 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 commission unless the plea of guilty is withdrawn prior 
to announcement of the sentence, in which event the proceedings shall 
continue as though the accused had pleaded not guilty.
``Sec. 949j. Opportunity to obtain witnesses and other evidence
    ``(a) Right of Defense Counsel.--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.
    ``(b) Process for Compulsion.--Process issued in a military 
commission under this chapter to compel witnesses to appear and testify 
and to compel the production of other evidence--
            ``(1) shall be similar to that which courts of the United 
        States having criminal jurisdiction may lawfully issue; and
            ``(2) shall run to any place where the United States shall 
        have jurisdiction thereof.
    ``(c) Protection of Classified Information.--(1) With respect to 
the discovery obligations of trial counsel under this section, the 
military judge, upon motion of trial counsel, shall authorize, to the 
extent practicable--
            ``(A) the deletion of specified items of classified 
        information from documents to be made available to the accused;
            ``(B) the substitution of a portion or summary of the 
        information for such classified documents; or
            ``(C) the substitution of a statement admitting relevant 
        facts that the classified information would tend to prove.
    ``(2) The military judge, upon motion of trial counsel, shall 
authorize trial counsel, in the course of complying with discovery 
obligations under this section, to protect from disclosure the sources, 
methods, or activities by which the United States acquired evidence if 
the military judge finds that the sources, methods, or activities by 
which the United States acquired such evidence are classified. The 
military judge may require trial counsel to provide, to the extent 
practicable, an unclassified summary of the sources, methods, or 
activities by which the United States acquired such evidence.
    ``(d) Exculpatory Evidence.--(1) As soon as practicable, trial 
counsel shall disclose to the defense the existence of any evidence 
known to trial counsel that reasonably tends to exculpate the accused. 
Where exculpatory evidence is classified, the accused shall be provided 
with an adequate substitute in accordance with the procedures under 
subsection (c).
    ``(2) In this subsection, the term `evidence known to trial 
counsel', in the case of exculpatory evidence, means exculpatory 
evidence that the prosecution would be required to disclose in a trial 
by general court-martial under chapter 47 of this title.
``Sec. 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 of the commission as to the 
defense of lack of mental responsibility under this section and shall 
charge them to find the accused--
            ``(1) guilty;
            ``(2) not guilty; or
            ``(3) 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.
``Sec. 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.
``Sec. 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) No person may be sentenced by a military 
commission to suffer death, except insofar as--
            ``(A) the penalty of death is expressly authorized under 
        this chapter 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 is convicted of the offense by the 
        concurrence of all the members present at the time the vote is 
        taken; and
            ``(D) all the members present at the time the vote is taken 
        concur in the sentence of death.
    ``(2) 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.
    ``(3) All other 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.
    ``(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.
    ``(2) In any case described in paragraph (1) in which 12 members 
are not reasonably available because of physical conditions or military 
exigencies, the convening authority shall specify a lesser number of 
members for the military commission (but not fewer than 9 members), and 
the military commission may be assembled, and the trial held, with not 
fewer than the number of members so specified. In such a case, the 
convening authority shall make a detailed written statement, to be 
appended to the record, stating why a greater number of members were 
not reasonably available.
``Sec. 949n. Military commission to announce action
    ``A military commission under this chapter shall announce its 
findings and sentence to the parties as soon as determined.
``Sec. 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 of the commission if the trial counsel is unable 
to authenticate it by reason of his death, disability, or absence. 
Where appropriate, and as provided 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 be given a redacted version of the record consistent with the 
requirements of section 949d of this title. Defense counsel shall have 
access to the unredacted record, as provided in regulations prescribed 
by the Secretary of Defense.

                       ``SUBCHAPTER V--SENTENCES

``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.
``Sec. 949s. Cruel or unusual punishments prohibited
    ``Punishment by flogging, or by branding, marking, or tattooing on 
the body, or any other cruel or unusual punishment, may not be adjudged 
by a military commission 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.
``Sec. 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.
``Sec. 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.

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

``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Appellate referral; waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District 
                            of Columbia Circuit and the Supreme Court.
``950h. Appellate counsel.
``950i. Execution of sentence; procedures for execution of sentence of 
                            death.
``950j. Finality or proceedings, findings, and sentences.
``Sec. 950a. Error of law; lesser included offense
    ``(a) Error of Law.--A finding or sentence of a military commission 
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.
``Sec. 950b. Review by the convening authority
    ``(a) Notice to Convening Authority of Findings and Sentence.--The 
findings and sentence of a military commission under this chapter shall 
be reported in writing promptly to the convening authority after the 
announcement of the sentence.
    ``(b) Submittal of Matters by Accused to Convening Authority.--(1) 
The accused may submit to the convening authority matters for 
consideration by the convening authority with respect to the findings 
and the sentence of the military commission under this chapter.
    ``(2)(A) Except as provided in subparagraph (B), a submittal under 
paragraph (1) shall be made in writing within 20 days after the accused 
has been given an authenticated record of trial under section 949o(c) 
of this title.
    ``(B) If the accused shows that additional time is required for the 
accused to make a submittal under paragraph (1), the convening 
authority 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)(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 on the sentence 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.
    ``(3) 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, may--
            ``(A) dismiss any charge or specification by setting aside 
        a finding of guilty thereto; or
            ``(B) change a finding of guilty to a charge to a finding 
        of guilty to an offense that is a lesser included offense of 
        the offense stated in the charge.
    ``(4) The convening authority shall serve on the accused or on 
defense counsel notice of any action taken by the convening authority 
under this subsection.
    ``(d) Order of Revision or Rehearing.--(1) Subject to paragraphs 
(2) and (3), the convening authority 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.
``Sec. 950c. Appellate referral; waiver or withdrawal of appeal
    ``(a) Automatic Referral for Appellate Review.--Except as provided 
under subsection (b), in each case in which the final decision of a 
military commission (as approved by the convening authority) includes a 
finding of guilty, the convening authority shall refer the case to the 
Court of Military Commission Review. Any such referral shall be made in 
accordance with procedures prescribed under regulations of the 
Secretary.
    ``(b) Waiver of Right of Review.--(1) In each case subject to 
appellate review under section 950f of this title, except a case in 
which the sentence as approved under section 950b of this title extends 
to death, the accused may file with the convening authority a statement 
expressly waiving the right of the accused to such review.
    ``(2) A waiver under paragraph (1) shall be signed by both the 
accused and a defense counsel.
    ``(3) A waiver under paragraph (1) must be filed, if at all, within 
10 days after notice on the action is served on the accused 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.
    ``(c) 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.
    ``(d) 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.
``Sec. 950d. Appeal by the United States
    ``(a) Interlocutory Appeal.--(1) Except as provided in paragraph 
(2), in a trial by military commission under this chapter, the United 
States may take an interlocutory appeal to the Court of Military 
Commission Review of any order or ruling of the military judge that--
            ``(A) terminates 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 (d), (e), or (f) 
        of section 949d of this title or section 949j(c) 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 such 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 Court of Military Commission Review. In ruling on an 
appeal under this section, the Court may act only with respect to 
matters of law.
    ``(d) Appeal From Adverse Ruling.--The United States may appeal an 
adverse ruling on an appeal under subsection (c) to the United States 
Court of Appeals for the District of Columbia Circuit by filing a 
petition for review in the Court of Appeals within 10 days after the 
date of such ruling. Review under this subsection shall be at the 
discretion of the Court of Appeals.
``Sec. 950e. Rehearings
    ``(a) Composition of Military Commission for Rehearing.--Each 
rehearing under this chapter shall take place before a military 
commission 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.
``Sec. 950f. Review by Court of Military Commission Review
    ``(a) Establishment.--The Secretary of Defense shall establish a 
Court of Military Commission Review which shall be composed of one or 
more panels, and each such panel shall be composed of not less than 
three appellate military judges. For the purpose of reviewing military 
commission decisions under this chapter, the court may sit in panels or 
as a whole in accordance with rules prescribed by the Secretary.
    ``(b) Appellate Military Judges.--The Secretary shall assign 
appellate military judges to a Court of Military Commission Review. 
Each appellate military judge shall meet the qualifications for 
military judges prescribed by section 948j(b) of this title or shall be 
a civilian with comparable qualifications. No person may be serve as an 
appellate military judge in any case in which that person acted as a 
military judge, counsel, or reviewing official.
    ``(c) Cases To Be Reviewed.--The Court of Military Commission 
Review, in accordance with procedures prescribed under regulations of 
the Secretary, shall review the record in each case that is referred to 
the Court by the convening authority under section 950c of this title 
with respect to any matter of law raised by the accused.
    ``(d) Scope of Review.--In a case reviewed by the Court of Military 
Commission Review under this section, the Court may act only with 
respect to matters of law.
``Sec. 950g. Review by the United States Court of Appeals for the 
              District of Columbia Circuit and the Supreme Court
    ``(a) Exclusive Appellate Jurisdiction.--(1)(A) Except as provided 
in subparagraph (B), the United States Court of Appeals for the 
District of Columbia Circuit shall have exclusive jurisdiction to 
determine the validity of a final judgment rendered by a military 
commission (as approved by the convening authority) under this chapter.
    ``(B) The Court of Appeals may not review the final judgment until 
all other appeals under this chapter have been waived or exhausted.
    ``(2) A petition for review must be filed by the accused in the 
Court of Appeals not later than 20 days after the date on which--
            ``(A) written notice of the final decision of the Court of 
        Military Commission Review is served on the accused or on 
        defense counsel; or
            ``(B) the accused submits, in the form prescribed by 
        section 950c of this title, a written notice waiving the right 
        of the accused to review by the Court of Military Commission 
        Review under section 950f of this title.
    ``(b) Standard for Review.--In a case reviewed by it under this 
section, the Court of Appeals may act only with respect to matters of 
law.
    ``(c) Scope of Review.--The jurisdiction of the Court of Appeals on 
an appeal under subsection (a) shall be limited to the consideration 
of--
            ``(1) whether the final decision was consistent with the 
        standards and procedures specified in this chapter; and
            ``(2) to the extent applicable, the Constitution and the 
        laws of the United States.
    ``(d) Supreme Court.--The Supreme Court may review by writ of 
certiorari the final judgment of the Court of Appeals pursuant to 
section 1257 of title 28.
``Sec. 950h. 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 for counsel 
appearing before military commissions under this chapter.
    ``(b) Representation of United States.--Appellate counsel appointed 
under subsection (a)--
            ``(1) shall represent the United States in any appeal or 
        review proceeding under this chapter before the Court of 
        Military Commission Review; and
            ``(2) may, when requested to do so by the Attorney General 
        in a case arising under this chapter, represent the United 
        States before the United States Court of Appeals for the 
        District of Columbia Circuit or the Supreme Court.
    ``(c) Representation of Accused.--The accused shall be represented 
by appellate counsel appointed under subsection (a) before the Court of 
Military Commission Review, the United States Court of Appeals for the 
District of Columbia Circuit, and the Supreme Court, and by civilian 
counsel if retained by the accused. Any such civilian counsel shall 
meet the qualifications under paragraph (3) of section 949c(b) of this 
title for civilian counsel appearing before military commissions under 
this chapter and shall be subject to the requirements of paragraph (4) 
of that section.
``Sec. 950i. Execution of sentence; procedures for execution of 
              sentence of death
    ``(a) In General.--The Secretary of Defense is authorized to carry 
out a sentence imposed by a military commission under this chapter in 
accordance with such procedures as the Secretary may prescribe.
    ``(b) 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.
    ``(c) Execution of Sentence of Death Only Upon Final Judgment of 
Legality of Proceedings.--(1) If the sentence of a military commission 
under this chapter extends to death, the sentence may not be executed 
until there is a final judgment as to the legality of the proceedings 
(and with respect to death, approval under subsection (b)).
    ``(2) A judgment 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 Court of Appeals for the District of Columbia 
        Circuit has expired and the accused has not filed a timely 
        petition for such review and the case is not otherwise under 
        review by that Court; or
            ``(B) review is completed in accordance with the judgment 
        of the United States Court of Appeals for the District of 
        Columbia Circuit and--
                    ``(i) a petition for a writ of certiorari is not 
                timely filed;
                    ``(ii) such a petition is denied by the Supreme 
                Court; or
                    ``(iii) review is otherwise completed in accordance 
                with the judgment of the Supreme Court.
    ``(d) 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.
``Sec. 950j. Finality or 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 the enactment of the Military Commissions 
Act of 2006, 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.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950p.  Statement of substantive offenses.
``950q.  Principals.
``950r.  Accessory after the fact.
``950s.  Conviction of lesser included offense.
``950t.  Attempts.
``950u.  Solicitation.
``950v.  Crimes triable by military commissions.
``950w.  Perjury and obstruction of justice; contempt.
``Sec. 950p. Statement of substantive offenses
    ``(a) Purpose.--The provisions of this subchapter codify offenses 
that have traditionally been triable by military commissions. This 
chapter does not establish new crimes that did not exist before its 
enactment, but rather codifies those crimes for trial by military 
commission.
    ``(b) Effect.--Because the provisions of this subchapter (including 
provisions that incorporate definitions in other provisions of law) are 
declarative of existing law, they do not preclude trial for crimes that 
occurred before the date of the enactment of this chapter.
``Sec. 950q. Principals
    ``Any person is punishable as a principal under this chapter who--
            ``(1) commits an offense punishable by this chapter, or 
        aids, abets, counsels, commands, or procures its commission;
            ``(2) causes an act to be done which if directly performed 
        by him would be punishable by this chapter; or
            ``(3) is a superior commander who, with regard to acts 
        punishable under this chapter, knew, had reason to know, or 
        should have known, that a subordinate was about to commit such 
        acts or had done so and who failed to take the necessary and 
        reasonable measures to prevent such acts or to punish the 
        perpetrators thereof.
``Sec. 950r. Accessory after the fact
    ``Any person subject to this chapter who, knowing that an offense 
punishable by this chapter has been committed, receives, comforts, or 
assists the offender in order to hinder or prevent his apprehension, 
trial, or punishment shall be punished as a military commission under 
this chapter may direct.
``Sec. 950s. Conviction of lesser included offense
    ``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.
``Sec. 950t. 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.
``Sec. 950u. Solicitation
    ``Any person subject to this chapter who solicits or advises 
another or others to commit one or more substantive offenses triable by 
military commission 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.
``Sec. 950v. Crimes triable by military commissions
    ``(a) Definitions and Construction.--In this section:
            ``(1) Military objective.--The term `military objective' 
        means--
                    ``(A) combatants; and
                    ``(B) those objects during an armed conflict--
                            ``(i) which, by their nature, location, 
                        purpose, or use, effectively contribute to the 
                        opposing force's war-fighting or war-sustaining 
                        capability; and
                            ``(ii) the total or partial destruction, 
                        capture, or neutralization of which would 
                        constitute a definite military advantage to the 
                        attacker under the circumstances at the time of 
                        the attack.
            ``(2) Protected person.--The term `protected person' means 
        any person entitled to protection under one or more of the 
        Geneva Conventions, including--
                    ``(A) civilians not taking an active part in 
                hostilities;
                    ``(B) military personnel placed hors de combat by 
                sickness, wounds, or detention; and
                    ``(C) military medical or religious personnel.
            ``(3) Protected property.--The term `protected property' 
        means property specifically protected by the law of war (such 
        as buildings dedicated to religion, education, art, science or 
        charitable purposes, historic monuments, hospitals, or places 
        where the sick and wounded are collected), if such property is 
        not being used for military purposes or is not otherwise a 
        military objective. Such 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.
            ``(4) Construction.--The intent specified for an offense 
        under paragraph (1), (2), (3), (4), or (12) of subsection (b) 
        precludes the applicability of such offense with regard to--
                    ``(A) collateral damage; or
                    ``(B) death, damage, or injury incident to a lawful 
                attack.
    ``(b) Offenses.--The following offenses shall be triable by 
military commission under this chapter at any time without limitation:
            ``(1) 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.
            ``(2) 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.
            ``(3) 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.
            ``(4) 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.
            ``(5) 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.
            ``(6) 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.
            ``(7) 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.
            ``(8) 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.
            ``(9) 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.
            ``(10) 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.
            ``(11) 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.
            ``(12) Cruel or inhuman treatment.--
                    ``(A) Offense.--Any person subject to this chapter 
                who commits an act intended to inflict severe or 
                serious physical or mental pain or suffering (other 
                than pain or suffering incidental to lawful sanctions), 
                including serious physical abuse, upon another within 
                his custody or control 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.
                    ``(B) Definitions.--In this paragraph:
                            ``(i) The term `serious physical pain or 
                        suffering' means bodily injury that involves--
                                    ``(I) a substantial risk of death;
                                    ``(II) extreme physical pain;
                                    ``(III) a burn or physical 
                                disfigurement of a serious nature 
                                (other than cuts, abrasions, or 
                                bruises); or
                                    ``(IV) significant loss or 
                                impairment of the function of a bodily 
                                member, organ, or mental faculty.
                            ``(ii) The term `severe mental pain or 
                        suffering' has the meaning given that term in 
                        section 2340(2) of title 18.
                            ``(iii) The term `serious mental pain or 
                        suffering' has the meaning given the term 
                        `severe mental pain or suffering' in section 
                        2340(2) of title 18, except that--
                                    ``(I) the term `serious' shall 
                                replace the term `severe' where it 
                                appears; and
                                    ``(II) as to conduct occurring 
                                after the date of the enactment of the 
                                Military Commissions Act of 2006, the 
                                term `serious and non-transitory mental 
                                harm (which need not be prolonged)' 
                                shall replace the term `prolonged 
                                mental harm' where it appears.
            ``(13) 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 
                paragraph, the term `serious bodily injury' means 
                bodily injury which involves--
                            ``(i) a substantial risk of death;
                            ``(ii) extreme physical pain;
                            ``(iii) protracted and obvious 
                        disfigurement; or
                            ``(iv) protracted loss or impairment of the 
                        function of a bodily member, organ, or mental 
                        faculty.
            ``(14) 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.
            ``(15) 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.
            ``(16) 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.
            ``(17) 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.
            ``(18) 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.
            ``(19) 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.
            ``(20) 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 
        necessity, shall be punished as a military commission under 
        this chapter may direct.
            ``(21) 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.
            ``(22) Sexual assault or abuse.--Any person subject to this 
        chapter who forcibly or with coercion or threat of force 
        engages in sexual contact with one or more persons, or causes 
        one or more persons to engage in sexual contact, shall be 
        punished as a military commission under this chapter may 
        direct.
            ``(23) 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.
            ``(24) 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.
            ``(25) 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 paragraph (24)), 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 paragraph, the term `material support or 
                resources' has the meaning given that term in section 
                2339A(b) of title 18.
            ``(26) 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.
            ``(27) Spying.--Any person subject to this chapter who with 
        intent or reason to believe that it is to be used to the injury 
        of the United States or to the advantage of a foreign power, 
        collects or attempts to collect 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.
            ``(28) Conspiracy.--Any person subject to this chapter who 
        conspires to commit one or more substantive offenses triable by 
        military commission under this chapter, 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.
``Sec. 950w. Perjury and obstruction of justice; contempt
    ``(a) 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 military commissions under this 
chapter.
    ``(b) 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.''.
            (2) Tables of chapters amendments.--The tables of chapters 
        at the beginning of subtitle A, and at the beginning of 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:

``47A. Military Commissions.................................    948a''.
    (b) Submittal of Procedures to Congress.--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)).

SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

    (a) Conforming Amendments.--Chapter 47 of title 10, United States 
Code (the Uniform Code of Military Justice), is amended as follows:
            (1) Applicability to lawful enemy combatants.--Section 
        802(a) (article 2(a)) is amended by adding at the end the 
        following new paragraph:
            ``(13) Lawful enemy combatants (as that term is defined in 
        section 948a(2) of this title) who violate the law of war.''.
            (2) Exclusion of applicability to chapter 47a 
        commissions.--Sections 821, 828, 848, 850(a), 904, and 906 
        (articles 21, 28, 48, 50(a), 104, and 106) are amended by 
        adding at the end the following new sentence: ``This section 
        does not apply to a military commission established under 
        chapter 47A of this title.''.
            (3) Inapplicability of requirements relating to 
        regulations.--Section 836 (article 36) is amended--
                    (A) in subsection (a), by inserting ``, except as 
                provided in chapter 47A of this title,'' after ``but 
                which may not''; and
                    (B) in subsection (b), by inserting before the 
                period at the end ``, except insofar as applicable to 
                military commissions established under chapter 47A of 
                this title''.
    (b) 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 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.''.

SEC. 5. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR CERTAIN CLAIMS.

    (a) In General.--No person may invoke the Geneva Conventions or any 
protocols thereto in any habeas corpus or other civil action or 
proceeding to which the United States, or a current or former officer, 
employee, member of the Armed Forces, or other agent of the United 
States is a party as a source of rights in any court of the United 
States or its States or territories.
    (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).

SEC. 6. IMPLEMENTATION OF TREATY OBLIGATIONS.

    (a) Implementation of Treaty Obligations.--
            (1) In general.--The acts enumerated in subsection (d) of 
        section 2441 of title 18, United States Code, as added by 
        subsection (b) of this section, and in subsection (c) of this 
        section, constitute violations of common Article 3 of the 
        Geneva Conventions prohibited by United States law.
            (2) Prohibition on grave breaches.--The provisions of 
        section 2441 of title 18, United States Code, as amended by 
        this section, fully satisfy the obligation under Article 129 of 
        the Third Geneva Convention for the United States to provide 
        effective penal sanctions for grave breaches which are 
        encompassed in common Article 3 in the context of an armed 
        conflict not of an international character. No foreign or 
        international source of law shall supply a basis for a rule of 
        decision in the courts of the United States in interpreting the 
        prohibitions enumerated in subsection (d) of such section 2441.
            (3) Interpretation by the president.--
                    (A) As provided by the Constitution and by this 
                section, the President has the authority for the United 
                States to interpret the meaning and application of the 
                Geneva Conventions and to promulgate higher standards 
                and administrative regulations for violations of treaty 
                obligations which are not grave breaches of the Geneva 
                Conventions.
                    (B) The President shall issue interpretations 
                described by subparagraph (A) by Executive Order 
                published in the Federal Register.
                    (C) Any Executive Order published under this 
                paragraph shall be authoritative (except as to grave 
                breaches of common Article 3) as a matter of United 
                States law, in the same manner as other administrative 
                regulations.
                    (D) Nothing in this section shall be construed to 
                affect the constitutional functions and 
                responsibilities of Congress and the judicial branch of 
                the United States.
            (4) Definitions.--In this subsection:
                    (A) Geneva conventions.--The term ``Geneva 
                Conventions'' means--
                            (i) 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 3217);
                            (ii) 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);
                            (iii) the Convention Relative to the 
                        Treatment of Prisoners of War, done at Geneva 
                        August 12, 1949 (6 UST 3316); and
                            (iv) the Convention Relative to the 
                        Protection of Civilian Persons in Time of War, 
                        done at Geneva August 12, 1949 (6 UST 3516).
                    (B) Third geneva convention.--The term ``Third 
                Geneva Convention'' means the international convention 
                referred to in subparagraph (A)(iii).
    (b) Revision to War Crimes Offense Under Federal Criminal Code.--
            (1) In general.--Section 2441 of title 18, United States 
        Code, is amended--
                    (A) 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
                    (B) by adding at the end the following new 
                subsection:
    ``(d) Common Article 3 Violations.--
            ``(1) Prohibited conduct.--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 or inhuman treatment.--The act of a 
                person who commits, or conspires or attempts to commit, 
                an act intended to inflict severe or serious physical 
                or mental pain or suffering (other than pain or 
                suffering incidental to lawful sanctions), including 
                serious physical abuse, upon another within his custody 
                or control.
                    ``(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 
                subsection, one or more persons taking no active part 
                in the hostilities, including those placed out of 
                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 subsection, one or more persons 
                taking no active part in the hostilities, including 
                those placed out of combat by sickness, wounds, 
                detention, or any other cause, by disfiguring the 
                person or persons by any mutilation thereof or by 
                permanently disabling any member, limb, or organ of his 
                body, without any legitimate medical or dental purpose.
                    ``(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 a 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 paragraphs (1)(A) and 
                (1)(B) 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;
                    ``(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;
                    ``(D) the term `serious physical pain or suffering' 
                shall be applied for purposes of paragraph (1)(B) as 
                meaning bodily injury that involves--
                            ``(i) a substantial risk of death;
                            ``(ii) extreme physical pain;
                            ``(iii) a burn or physical disfigurement of 
                        a serious nature (other than cuts, abrasions, 
                        or bruises); or
                            ``(iv) significant loss or impairment of 
                        the function of a bodily member, organ, or 
                        mental faculty; and
                    ``(E) the term `serious mental pain or suffering' 
                shall be applied for purposes of paragraph (1)(B) in 
                accordance with the meaning given the term `severe 
                mental pain or suffering' (as defined in section 
                2340(2) of this title), except that--
                            ``(i) the term `serious' shall replace the 
                        term `severe' where it appears; and
                            ``(ii) as to conduct occurring after the 
                        date of the enactment of the Military 
                        Commissions Act of 2006, the term `serious and 
                        non-transitory mental harm (which need not be 
                        prolonged)' shall replace the term `prolonged 
                        mental harm' where it appears.
            ``(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) or 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.
            ``(5) Definition of grave breaches.--The definitions in 
        this subsection are intended only to define the grave breaches 
        of common Article 3 and not the full scope of United States 
        obligations under that Article.''.
            (2) Retroactive applicability.--The amendments made by this 
        subsection, except as specified in subsection (d)(2)(E) of 
        section 2441 of title 18, United States Code, shall take effect 
        as of November 26, 1997, as if enacted immediately after the 
        amendments made by section 583 of Public Law 105-118 (as 
        amended by section 4002(e)(7) of Public Law 107-273).
    (c) Additional Prohibition on Cruel, Inhuman, or Degrading 
Treatment or Punishment.--
            (1) In general.--No individual in the custody or under the 
        physical control of the United States Government, regardless of 
        nationality or physical location, shall be subject to cruel, 
        inhuman, or degrading treatment or punishment.
            (2) Cruel, inhuman, or degrading treatment or punishment 
        defined.--In this subsection, the term ``cruel, inhuman, or 
        degrading treatment or punishment'' means cruel, unusual, and 
        inhumane treatment or punishment prohibited by the Fifth, 
        Eighth, and Fourteenth Amendments to the Constitution of the 
        United States, as defined in the United States Reservations, 
        Declarations and Understandings to the United Nations 
        Convention Against Torture and Other Forms of Cruel, Inhuman or 
        Degrading Treatment or Punishment done at New York, December 
        10, 1984.
            (3) Compliance.--The President shall take action to ensure 
        compliance with this subsection, including through the 
        establishment of administrative rules and procedures.

SEC. 7. HABEAS CORPUS MATTERS.

    (a) In General.--Section 2241 of title 28, United States Code, is 
amended by striking both the subsection (e) added by section 1005(e)(1) 
of Public Law 109-148 (119 Stat. 2742) and the subsection (e) added by 
added by section 1405(e)(1) of Public Law 109-163 (119 Stat. 3477) and 
inserting the following new subsection (e):
    ``(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 by the United States who has been 
determined by the United States to have been properly detained as an 
enemy combatant or is awaiting such determination.
    ``(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, transfer, treatment, trial, or conditions 
of confinement of an alien who is or was detained by the United States 
and has been determined by the United States to have been properly 
detained as an enemy combatant or is awaiting such determination.''.
    (b) Effective Date.--The amendment 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, 
transfer, treatment, trial, or conditions of detention of an alien 
detained by the United States since September 11, 2001.

SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING TO 
              PROTECTION OF CERTAIN UNITED STATES GOVERNMENT PERSONNEL.

    (a) Counsel and Investigations.--Section 1004(b) of the Detainee 
Treatment Act of 2005 (42 U.S.C. 2000dd-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) Protection of Personnel.--Section 1004 of the Detainee 
Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with respect to 
any criminal prosecution that--
            (1) relates to the detention and interrogation of aliens 
        described in such section;
            (2) is grounded in section 2441(c)(3) of title 18, United 
        States Code; and
            (3) relates to actions occurring between September 11, 
        2001, and December 30, 2005.

SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS.

    Section 1005(e)(3) 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--
            (1) 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'';
            (2) by striking subparagraph (B) and inserting the 
        following new subparagraph (B):
                    ``(B) Grant of review.--Review under this paragraph 
                shall be as of right.'';
            (3) in subparagraph (C)--
                    (A) in clause (i)--
                            (i) by striking ``pursuant to the military 
                        order'' and inserting ``by a military 
                        commission''; and
                            (ii) by striking ``at Guantanamo Bay, 
                        Cuba''; and
                    (B) in clause (ii), by striking ``pursuant to such 
                military order'' and inserting ``by the military 
                commission''; and
            (4) in subparagraph (D)(i), by striking ``specified in the 
        military order'' and inserting ``specified for a military 
        commission''.

SEC. 10. 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''.

            Passed the Senate September 28, 2006.

            Attest:

                                                             Secretary.
109th CONGRESS

  2d Session

                                S. 3930

_______________________________________________________________________

                                 AN ACT

To authorize trial by military commission for violations of the law of 
                      war, and for other purposes.