[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 3930 Placed on Calendar Senate (PCS)]
Calendar No. 634
109th CONGRESS
2d Session
S. 3930
To authorize trial by military commission for violations of the law of
war, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
September 22, 2006
Mr. McConnell (for himself, Mr. Frist, and Mr. Warner) introduced the
following bill; which was read the first time pursuant to the order of
September 21, 2006, as modified on September 22, 2006
September 25, 2006
Read the second time and placed on the calendar
_______________________________________________________________________
A BILL
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.
This Act may be cited as the ``Military Commissions Act of 2006''.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The Constitution of the United States grants to
Congress the power ``To define and punish ... Offenses against
the Law of Nations'', as well as the power ``To declare War ...
To raise and support Armies ... [and] To provide and maintain a
Navy''.
(2) The military commission is the traditional tribunal for
the trial of persons engaged in hostilities for violations of
the law of war.
(3) Congress has, in the past, both authorized the use of
military commission by statute and recognized the existence and
authority of military commissions.
(4) Military commissions have been convened both by the
President and by military commanders in the field to try
offenses against the law of war.
(5) It is in the national interest for Congress to exercise
its authority under the Constitution to enact legislation
authorizing and regulating the use of military commissions to
try and punish violations of the law of war.
SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS.
(a) In General.--The President is authorized to establish military
commissions for the trial of alien unlawful enemy combatants engaged in
hostilities against the United States for violations of the law of war
and other offenses specifically made triable by military commission as
provided in chapter 47 of title 10, United States Code, and chapter 47A
of title 10, United States Code (as enacted by this Act).
(b) Construction.--The authority in subsection (a) may not be
construed to alter or limit the authority of the President under the
Constitution and laws of the United States to establish military
commissions for areas declared to be under martial law or in occupied
territories should circumstances so require.
(c) Scope of Punishment Authority.--A military commission
established pursuant to subsection (a) shall have authority to impose
upon any person found guilty under a proceeding under chapter 47A of
title 10, United States Code (as so enacted), a sentence that is
appropriate for the offense or offenses for which there is a finding of
guilt, including a sentence of death if authorized under such chapter,
imprisonment for life or a term of years, payment of a fine or
restitution, or such other lawful punishment or condition of punishment
as the military commission shall direct.
(d) Execution of Punishment.--The Secretary of Defense is
authorized to carry out a sentence of punishment imposed by a military
commission established pursuant to subsection (a) in accordance with
such procedures as the Secretary may prescribe.
(e) Annual Report on Trials by Military Commissions.--
(1) Annual report required.--Not later than December 31
each year, the Secretary of Defense shall submit to the
Committees on Armed Services of the Senate and the House of
Representatives a report on any trials conducted by military
commissions established pursuant to subsection (a) during such
year.
(2) Form.--Each report under this subsection shall be
submitted in unclassified form, but may include a classified
annex.
SEC. 4. MILITARY COMMISSIONS.
(a) Military Commissions.--
(1) In general.--Subtitle A of title 10, United States
Code, is amended by inserting after chapter 47 the following
new chapter:
``CHAPTER 47A--MILITARY COMMISSIONS
``SUBCHAPTER................................................ Sec.
``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..................................... 950aa.
``SUBCHAPTER I--GENERAL PROVISIONS
``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``Sec. 948a. Definitions
``In this chapter:
``(1) Alien.--The term `alien' means an individual who is
not a citizen of the United States.
``(2) Classified information.--The term `classified
information' means the following:
``(A) Any information or material that has been
determined by the United States Government pursuant to
statute, Executive order, or regulation to require
protection against unauthorized disclosure for reasons
of national security.
``(B) Any restricted data, as that term is defined
in section 11 y. of the Atomic Energy Act of 1954 (42
U.S.C. 2014(y)).
``(3) Lawful enemy combatant.--The term `lawful enemy
combatant' means an individual who is--
``(A) a member of the regular forces of a State
party engaged in hostilities against the United States;
``(B) a member of a militia, volunteer corps, or
organized resistance movement belonging to a State
party engaged in such hostilities, which are under
responsible command, wear a fixed distinctive sign
recognizable at a distance, carry their arms openly,
and abide by the law of war; or
``(C) a member of a regular armed force who
professes allegiance to a government engaged in such
hostilities, but not recognized by the United States.
``(4) Unlawful enemy combatant.--The term `unlawful enemy
combatant' means an individual engaged in hostilities against
the United States who is not a lawful enemy combatant.
``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) Construction of Provisions.--The procedures for military
commissions set forth in this chapter are based upon the procedures for
trial by general courts-martial under chapter 47 of this title (the
Uniform Code of Military Justice). Chapter 47 of this title does not,
by its terms, apply to trial by military commission except as
specifically provided therein or in this chapter, and many of the
provisions of chapter 47 of this title are by their terms inapplicable
to military commissions. The judicial construction and application of
chapter 47 of this title is therefore not binding on military
commissions established under this chapter.
``(c) Inapplicability of Certain Provisions.--(1) The following
provisions of this title shall not apply to trial by military
commission under this chapter:
``(A) Section 810 (article 10 of the Uniform Code of
Military Justice), relating to speedy trial, including any rule
of courts-martial relating to speedy trial.
``(B) Sections 831(a), (b), and (d) (articles 31(a), (b),
and (d) of the Uniform Code of Military Justice), relating to
compulsory self-incrimination.
``(C) Section 832 (article 32 of the Uniform Code of
Military Justice), relating to pretrial investigation.
``(2) Other provisions of chapter 47 of this title shall apply to
trial by military commission under this chapter only to the extent
provided by the terms of such provisions or by this chapter.
``(d) Status of Military 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.
``(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) Geneva Conventions Not Establishing Source of Rights.--No
alien enemy unlawful combatant subject to trial by military commission
under this chapter may invoke the Geneva Conventions as a source of
rights at his trial by military commission.
``Sec. 948c. Persons subject to military commissions
``Any alien unlawful enemy combatant engaged in hostilities or
having supported hostilities against the United States is subject to
trial by military commission as set forth in this chapter.
``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,
sections 904 and 906 of this title (articles 104 and 106 of the Uniform
Code of Military Justice), 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) Punishments.--A miliary commission under this chapter may,
under such limitations as the President may prescribe, adjudge any
punishment not forbidden by this chapter, including the penalty of
death when authorized under this chapter, chapter 47 of this title, or
the law of war.
``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, including commissioned officers of the reserve components of
the armed forces on active duty, commissioned officers of the National
Guard on active duty in Federal service, or retired commissioned
officers recalled to active duty.
``(b) Detail of Members.--When convening a military commission
under this chapter, the convening authority shall detail as members
thereof such members of the armed forces eligible under subsection (a)
who, as in the opinion of the convening authority, are best qualified
for the duty by reason of age, education, training, experience, length
of service, and judicial temperament. No member of an armed force is
eligible to serve as a member of a military commission when such member
is the accuser or a witness for the prosecution or has acted as an
investigator or counsel in the same case.
``(c) Excuse of Members.--Before a military commission under this
chapter is assembled for the trial of a case, the convening authority
may excuse a member from participating in the case.
``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) Eligibility.--A military judge shall be a commissioned
officer of the armed forces who is a member of the bar of a Federal
court, or a member of the bar of the highest court of a State, and who
is certified to be qualified for duty under section 826 of this title
(article 26 of the Uniform Code of Military Justice) as a military
judge in general courts-martial by the Judge Advocate General of the
armed force of which such military judge is a member.
``(c) Ineligibility of Certain Individuals.--No person is eligible
to act as military judge in a case of a military commission under this
chapter if he is the accuser or a witness or has acted as investigator
or a counsel in the same case.
``(d) Consultation With Members; Ineligibility to Vote.--A military
judge detailed to a military commission under this chapter may not
consult with the members except in the presence of the accused (except
as otherwise provided in section 949d of this title), trial counsel,
and defense counsel, nor may he vote with the members.
``(e) Other Duties.--A commissioned officer who is certified to be
qualified for duty as a military judge of a military commission under
this chapter may perform such other duties as are assigned to him by or
with the approval of the Judge Advocate General of the armed force of
which such officer is a member or the designee of such Judge Advocate
General.
``(f) Prohibition on Evaluation of Fitness by Convening
Authority.--The convening authority of a military commission under this
chapter shall not prepare or review any report concerning the
effectiveness, fitness, or efficiency of a military judge detailed to
the military commission which relates to his performance of duty as a
military judge on the military commission.
``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.
``(4) The Secretary of Defense shall prescribe regulations
providing for the manner in which trial counsel and military defense
counsel are detailed for military commissions under this chapter and
for the persons who are authorized to detail such counsel for such
military commissions.
``(b) Trial Counsel.--Subject to subsection (e), trial counsel
detailed for a military commission under this chapter must be--
``(1) a judge advocate (as that term is defined in section
801 of this title (article 1 of the Uniform Code of Military
Justice)) who is--
``(A) a graduate of an accredited law school or is
a member of the bar of a Federal court or of the
highest court of a State; and
``(B) certified as competent to perform duties as
trial counsel before general courts-martial by the
Judge Advocate General of the armed force of which he
is a member; or
``(2) a civilian who is--
``(A) a member of the bar of a Federal court or of
the highest court of a State; and
``(B) otherwise qualified to practice before the
military commission pursuant to regulations prescribed
by the Secretary of Defense.
``(c) Military Defense Counsel.--Subject to subsection (e),
military defense counsel detailed for a military commission under this
chapter must be a judge advocate (as so defined) who is--
``(1) a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a
State; and
``(2) certified as competent to perform duties as defense
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member.
``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The Chief
Prosecutor in a military commission under this chapter shall meet the
requirements set forth in subsection (b)(1).
``(2) The Chief Defense Counsel in a military commission under this
chapter shall meet the requirements set forth in subsection (c)(1).
``(e) Ineligibility of Certain Individuals.--No person who has
acted as an investigator, military judge, or member of a military
commission under this chapter in any case may act later as trial
counsel or military defense counsel in the same case. No person who has
acted for the prosecution before a military commission under this
chapter may act later in the same case for the defense, nor may any
person who has acted for the defense before a military commission under
this chapter act later in the same case for the prosecution.
``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 military
commission qualified court reporters, who shall prepare a verbatim
record of the proceedings of and testimony taken before the military
commission.
``(b) Interpreters.--Under such regulations as the Secretary of
Defense may prescribe, the convening authority of a military commission
under this chapter may detail to or employ for the military commission
interpreters who shall interpret for the military commission, and, as
necessary, for trial counsel and defense counsel for the military
commission, and for the accused.
``(c) Transcript; Record.--The transcript of a military commission
under this chapter shall be under the control of the convening
authority of the military commission, who shall also be responsible for
preparing the record of the proceedings of the military commission.
``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; statements obtained
by torture or other methods of coercion.
``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 his
knowledge and belief.
``(b) Notice to Accused.--Upon the swearing of the charges and
specifications in accordance with subsection (a), the accused shall be
informed of the charges and specifications against him as soon as
practicable.
``Sec. 948r. Compulsory self-incrimination prohibited; statements
obtained by torture or other methods of coercion
``(a) In General.--No person shall be required to testify against
himself at a proceeding of a military commission under this chapter.
``(b) Statements Obtained by Torture.--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 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 Detainee 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 it 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 Detainee 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 it 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 violate the cruel, unusual, or inhumane
treatment or punishment prohibited by the Fifth, Eighth, and
14th Amendments to the United States Constitution.
``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 in English and, if appropriate, in another language that the
accused understands, sufficiently in advance of trial to prepare a
defense.
``SUBCHAPTER IV--TRIAL PROCEDURE
``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``Sec. 949a. Rules
``(a) Procedures and Rules of Evidence.--Pretrial, trial, and post-
trial procedures, including elements and modes of proof, for cases
triable by military commission under this chapter may be prescribed by
the Secretary of Defense. Such procedures may not be contrary to or
inconsistent with this chapter. Except as otherwise provided in this
chapter or chapter 47 of this title, the procedures and rules of
evidence applicable in trials by general courts-martial of the United
States shall apply in trials by military commission under this chapter.
``(b) Exceptions.--(1) The Secretary of Defense, in consultation
with the Attorney General, may make such exceptions in the
applicability in trials by military commission under this chapter from
the procedures and rules of evidence otherwise applicable in general
courts-martial as may be required by the unique circumstances of the
conduct of military and intelligence operations during hostilities or
by other practical need.
``(2) Notwithstanding any exceptions authorized by paragraph (1),
the procedures and rules of evidence in trials by military commission
under this chapter shall include, at a minimum, the following rights:
``(A) To examine and respond to all evidence considered by
the military commission on the issue of guilt or innocence and
for sentencing.
``(B) To be present at all sessions of the military
commission (other than those for deliberations or voting),
except when excluded under section 949d of this title.
``(C) To the assistance of counsel.
``(D) To self-representation, if the accused knowingly and
competently waives the assistance of counsel, subject to the
provisions of paragraph (4).
``(E) To the suppression of evidence that is not reliable
or probative.
``(F) To the suppression of evidence the probative value of
which is substantially outweighed by--
``(i) the danger of unfair prejudice, confusion of
the issues, or misleading the members; or
``(ii) considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
``(3) In making exceptions in the applicability in trials by
military commission under this chapter from the procedures and rules
otherwise applicable in general courts-martial, the Secretary of
Defense may provide the following:
``(A) Evidence seized outside the United States shall not
be excluded from trial by military commission on the grounds
that the evidence was not seized pursuant to a search warrant
or authorization.
``(B) A statement of the accused that is otherwise
admissible shall not be excluded from trial by military
commission on grounds of alleged coercion or compulsory self-
incrimination so long as the evidence complies with the
provisions of section 948r of this title.
``(C) Evidence shall be admitted as authentic so long as--
``(i) the military judge of the military commission
determines that there is sufficient evidence that the
evidence is what it is claimed to be; and
``(ii) the military judge instructs the members
that they may consider any issue as to authentication
or identification of evidence in determining the
weight, if any, to be given to the evidence.
``(D)(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 this
clause is subject to the requirements and limitations
applicable to the disclosure of classified information in
section 949j(b) 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.
``(4)(A) The accused in a military commission under this chapter
who exercises the right to self-representation under paragraph (2)(D)
shall conform his deportment and the conduct of the defense to the
rules of evidence, procedure, and decorum applicable to trials by
military commission.
``(B) Failure of the accused to conform to the rules described in
subparagraph (A) may result in a partial or total revocation by the
military judge of the right of self-representation under paragraph
(2)(D). In such case, the detailed defense counsel of the accused or an
appropriately authorized civilian counsel shall perform the functions
necessary for the defense.
``(c) Delegation of Authority to Prescribe Regulations.--The
Secretary of Defense may delegate the authority of the Secretary to
prescribe regulations under this chapter.
``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 their
functions in the conduct of the proceedings.
``(2) No person may attempt to coerce or, by any unauthorized
means, influence--
``(A) the action of a military commission under this
chapter, or any member thereof, in reaching the findings or
sentence in any case;
``(B) the action of any convening, approving, or reviewing
authority with respect to their judicial acts; or
``(C) the exercise of professional judgment by trial
counsel or defense counsel.
``(3) The provisions of this subsection shall not apply with
respect to--
``(A) general instructional or informational courses in
military justice if such courses are designed solely for the
purpose of instructing members of a command in the substantive
and procedural aspects of military commissions; or
``(B) statements and instructions given in open proceedings
by a military judge or counsel.
``(b) Prohibition on Consideration of Actions on Commission in
Evaluation of Fitness.--In the preparation of an effectiveness,
fitness, or efficiency report or any other report or document used in
whole or in part for the purpose of determining whether a commissioned
officer of the armed forces is qualified to be advanced in grade, or in
determining the assignment or transfer of any such officer or whether
any such officer should be retained on active duty, no person may--
``(1) consider or evaluate the performance of duty of any
member of a military commission under this chapter; or
``(2) give a less favorable rating or evaluation to any
commissioned officer because of the zeal with which such
officer, in acting as counsel, represented any accused before a
military commission under this chapter.
``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, provided that such civilian counsel--
``(A) is a United States citizen;
``(B) is admitted to the practice of law in a State,
district, or possession of the United States, or before a
Federal court;
``(C) has not been the subject of any sanction of
disciplinary action by any court, bar, or other competent
governmental authority for relevant misconduct;
``(D) has been determined to be eligible for access to
information classified at the level Secret or higher; and
``(E) has signed a written agreement to comply with all
applicable regulations or instructions for counsel, including
any rules of court for conduct during the proceedings.
``(4) If the accused is represented by civilian counsel, military
counsel detailed shall act as associate counsel.
``(5) The accused is not entitled to be represented by more than
one military counsel. However, the person authorized under regulations
prescribed under section 948k of this title to detail counsel, in such
person's sole discretion, may detail additional military counsel to
represent the accused.
``(6) Defense counsel may cross-examine each witness for the
prosecution who testifies before a military commission under this
chapter.
``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 (b), (c), and (d), any
proceedings under paragraph (1) shall be conducted in the presence of
the accused, defense counsel, and trial counsel, and shall be made part
of the record.
``(b) Deliberation or Vote of Members.--When the members of a
military commission under this chapter deliberate or vote, only the
members may be present.
``(c) Closure of Proceedings.--(1) The military judge may close to
the public all or part of the proceedings of a military commission
under this chapter.
``(2) The military judge may close to the public all or a portion
of the proceedings under paragraph (1) only upon making a specific
finding that such closure is necessary to--
``(A) protect information the disclosure of which could
reasonably be expected to cause damage to the national
security, including intelligence or law enforcement sources,
methods, or activities; or
``(B) ensure the physical safety of individuals.
``(3) A finding under paragraph (2) may be based upon a
presentation, including a presentation ex parte or in camera, by either
trial counsel or defense counsel.
``(d) Exclusion of Accused From Certain Proceedings.--The military
judge may exclude the accused from any portion of a proceeding upon a
determination that, after being warned by the military judge, the
accused persists in conduct that justifies exclusion from the
courtroom--
``(1) to ensure the physical safety of individuals; or
``(2) to prevent disruption of the proceedings by the
accused.
``(e) 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. This rule 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 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 military commission. The
military judge shall determine the relevance and validity of challenges
for cause, and may not receive a challenge to more than one person at a
time. Challenges by trial counsel shall ordinarily be presented and
decided before those by the accused are offered.
``(b) Peremptory Challenges.--The accused and trial counsel are
each entitled to one peremptory challenge, but the military judge may
not be challenged except for cause.
``(c) Challenges Against Additional Members.--Whenever additional
members are detailed to a military commission under this chapter, and
after any challenges for cause against such additional members are
presented and decided, the accused and trial counsel are each entitled
to one peremptory challenge against members not previously subject to
peremptory challenge.
``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 thereof, and
whether the oath shall be taken for all cases in which duties are to be
performed or for a particular case, shall be as provided in regulations
prescribed by the Secretary of Defense. The regulations may provide
that--
``(A) an oath to perform faithfully duties as a military
judge, trial counsel, or defense counsel may be taken at any
time by any judge advocate or other person certified to be
qualified or competent for the duty; and
``(B) if such an oath is taken, such oath need not again be
taken at the time the judge advocate or other person is
detailed to that duty.
``(b) Witnesses.--Each witness before a military commission under
this chapter shall be examined on oath.
``(c) Oath Defined.--In this section, the term `oath' includes an
affirmation.
``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) Plea of Not Guilty.--If an accused in a military commission
under this chapter after a plea of guilty sets up matter inconsistent
with the plea, or if it appears that the accused has entered the plea
of guilty through lack of understanding of its meaning and effect, or
if the accused fails or refuses to plead, a plea of not guilty shall be
entered in the record, and the military commission shall proceed as
though the accused had pleaded not guilty.
``(b) Finding of Guilt After Guilty Plea.--With respect to any
charge or specification to which a plea of guilty has been made by the
accused in a military commission under this chapter and accepted by the
military judge, a finding of guilty of the charge or specification may
be entered immediately without a vote. The finding shall constitute the
finding of the military commission unless the plea of guilty is
withdrawn prior to announcement of the sentence, in which event the
proceedings shall continue as though the accused had pleaded not
guilty.
``Sec. 949j. Opportunity to obtain witnesses and other evidence
``(a) In General.--(1) Defense counsel in a military commission
under this chapter shall have a reasonable opportunity to obtain
witnesses and other evidence as provided in regulations prescribed by
the Secretary of Defense.
``(2) Process issued in military commissions under this chapter to
compel witnesses to appear and testify and to compel the production of
other evidence--
``(A) shall be similar to that which courts of the United
States having criminal jurisdiction may lawfully issue; and
``(B) shall run to any place where the United States shall
have jurisdiction thereof.
``(b) 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 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.
``(c) 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 (b).
``(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 courts-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 as to the defense of lack of
mental responsibility under this section and shall charge the members
to find the accused--
``(1) guilty;
``(2) not guilty; or
``(3) subject to subsection (d), not guilty by reason of
lack of mental responsibility.
``(d) Majority Vote Required for Finding.--The accused shall be
found not guilty by reason of lack of mental responsibility under
subsection (c)(3) only if a majority of the members present at the time
the vote is taken determines that the defense of lack of mental
responsibility has been established.
``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) Except as provided in paragraphs (2) and (3),
sentences shall be determined by a military commission by the
concurrence of two-thirds of the members present at the time the vote
is taken.
``(2) No person may be sentenced to death by a military commission,
except insofar as--
``(A) the penalty of death has been expressly authorized
under this chapter, chapter 47 of this title, or the law of war
for an offense of which the accused has been found guilty;
``(B) trial counsel expressly sought the penalty of death
by filing an appropriate notice in advance of trial;
``(C) the accused was convicted of the offense by the
concurrence of all the members present at the time the vote is
taken; and
``(D) all members present at the time the vote was taken
concurred in the sentence of death.
``(3) No person may be sentenced to life imprisonment, or to
confinement for more than 10 years, by a military commission under this
chapter except by the concurrence of three-fourths of the members
present at the time the vote is taken.
``(c) Number of Members Required for Penalty of Death.--(1) Except
as provided in paragraph (2), in a case in which the penalty of death
is sought, the number of members of the military commission under this
chapter shall be not less than 12 members.
``(2) In any case described in paragraph (1) in which 12 members
are not reasonably available for a military commission because of
physical conditions or military exigencies, the convening authority
shall specify a lesser number of members for the military commission
(but not fewer than 5 members), and the military commission may be
assembled, and the trial held, with not less than the number of members
so specified. In any such case, the convening authority shall make a
detailed written statement, to be appended to the record, stating why a
greater number of members were not reasonably available.
``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 if the trial counsel is unable to authenticate
it by reason of his death, disability, or absence. Where appropriate,
and as provided in regulations prescribed by the Secretary of Defense,
the record of a military commission under this chapter may contain a
classified annex.
``(b) Complete Record Required.--A complete record of the
proceedings and testimony shall be prepared in every military
commission under this chapter.
``(c) Provision of Copy to Accused.--A copy of the record of the
proceedings of the military commission under this chapter shall be
given the accused as soon as it is authenticated. If the record
contains classified information, or a classified annex, the accused
shall receive a redacted version of the record consistent with the
requirements of section 949d(e) 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. 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; suspension of sentence.
``950j. Finality of 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 accused has
been give an authenticated record of trial under section 949o(c) of
this title.
``(B) If the accused shows that additional time is required for the
accused to make a submittal under paragraph (1), the convening
authority may, for good cause, extend the applicable period under
subparagraph (A) for not more than an additional 20 days.
``(3) The accused may waive his right to make a submittal to the
convening authority under paragraph (1). Such a waiver shall be made in
writing, and may not be revoked. For the purposes of subsection (c)(2),
the time within which the accused may make a submittal under this
subsection shall be deemed to have expired upon the submittal of a
waiver under this paragraph to the convening authority.
``(c) Action by Convening Authority.--(1) The authority under this
subsection to modify the findings and sentence of a military commission
under this chapter is a matter of the sole discretion and prerogative
of the convening authority.
``(2) The convening authority is not required to take action on the
findings of a military commission under this chapter. If the convening
authority takes action on the findings, the convening authority may, in
his sole discretion, only--
``(A) dismiss any charge or specification by setting aside
a finding of guilty thereto; or
``(B) change a finding of guilty to a charge to a finding
of guilty to an offense that is a lesser included offense of
the offense stated in the charge.
``(3)(A) The convening authority shall take action on the sentence
of a military commission under this chapter.
``(B) Subject to regulations prescribed by the Secretary of
Defense, action under this paragraph may be taken only after
consideration of any matters submitted by the accused under subsection
(b) or after the time for submitting such matters expires, whichever is
earlier.
``(C) In taking action under this paragraph, the convening
authority may, in his sole discretion, approve, disapprove, commute, or
suspend the sentence in whole or in part. The convening authority may
not increase a sentence beyond that which is found by the military
commission.
``(4) The convening authority shall serve on the accused or on
defense counsel notice of any action taken by the convening authority
under this subsection.
``(d) Order of Revision or Rehearing.--(1) Subject to paragraphs
(2) and (3), the convening authority of a military commission under
this chapter may, in his sole discretion, order a proceeding in
revision or a rehearing.
``(2)(A) Except as provided in subparagraph (B), a proceeding in
revision may be ordered by the convening authority if--
``(i) there is an apparent error or omission in the record;
or
``(ii) the record shows improper or inconsistent action by
the military commission with respect to the findings or
sentence that can be rectified without material prejudice to
the substantial rights of the accused.
``(B) In no case may a proceeding in revision--
``(i) reconsider a finding of not guilty of a specification
or a ruling which amounts to a finding of not guilty;
``(ii) reconsider a finding of not guilty of any charge,
unless there has been a finding of guilty under a specification
laid under that charge, which sufficiently alleges a violation;
or
``(iii) increase the severity of the sentence unless the
sentence prescribed for the offense is mandatory.
``(3) A rehearing may be ordered by the convening authority if the
convening authority disapproves the findings and sentence and states
the reasons for disapproval of the findings. If the convening authority
disapproves the finding and sentence and does not order a rehearing,
the convening authority shall dismiss the charges. A rehearing as to
the findings may not be ordered by the convening authority when there
is a lack of sufficient evidence in the record to support the findings.
A rehearing as to the sentence may be ordered by the convening
authority if the convening authority disapproves the sentence.
``Sec. 950c. Waiver or withdrawal of appeal
``(a) Waiver of Right of Review.--(1) An accused may file with the
convening authority a statement expressly waiving the right of the
accused to appellate review by the Court of Military Commission Review
under section 950f of this title of the final decision of the military
commission under this chapter.
``(2) A waiver under paragraph (1) shall be signed by both the
accused and a defense counsel.
``(3) A waiver under paragraph (1) must be filed, if at all, within
10 days after notice of the action is served on the accused or on
defense counsel under section 950b(c)(4) of this title. The convening
authority, for good cause, may extend the period for such filing by not
more than 30 days.
``(b) Withdrawal of Appeal.--Except in a case in which the sentence
as approved under section 950b of this title extends to death, the
accused may withdraw an appeal at any time.
``(c) Effect of Waiver or Withdrawal.--A waiver of the right to
appellate review or the withdrawal of an appeal under this section bars
review under section 950f of this title.
``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 under section 950f of this title of any order or
ruling of the military judge that--
``(A) terminates proceedings of the military commission
with respect to a charge or specification;
``(B) excludes evidence that is substantial proof of a fact
material in the proceeding; or
``(C) relates to a matter under subsection (c), (d), or (e)
of section 949d of this title.
``(2) The United States may not appeal under paragraph (1) an order
or ruling that is, or amounts to, a finding of not guilty by the
military commission with respect to a charge or specification.
``(b) Notice of Appeal.--The United States shall take an appeal of
an order or ruling under subsection (a) by filing a notice of appeal
with the military judge within five days after the date of the order or
ruling.
``(c) Appeal.--An appeal under this section shall be forwarded, by
means specified in regulations prescribed the Secretary of Defense,
directly to the Court of Military Commission Review. In ruling on an
appeal under this section, the Court may act only with respect to
matters of law.
``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 serve as an
appellate military judge in any case in which that person acted as a
military judge, counsel, or reviewing official.
``(c) Right of Appeal.--The accused may appeal from a final
decision of a military commission, and the United States may appeal as
provided in section 950d of this title, to the Court of Military
Commission Review in accordance with procedures prescribed under
regulations of the Secretary.
``(d) Scope of Review.--In 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) Review by United States Court of Appeals for the District of
Columbia Circuit.--(1) Subject to the provisions of this subsection,
the United States Court of Appeals for the District of Columbia Circuit
shall have exclusive jurisdiction to determine the final validity of
any judgment rendered by a military commission under this chapter.
``(2) The United States Court of Appeals for the District of
Columbia Circuit may not determine the final validity of a judgment of
a military commission under this subsection until all other appeals
from the judgment under this chapter have been waived or exhausted.
``(3)(A) An accused may seek a determination by the United States
Court of Appeals for the District of Columbia Circuit of the final
validity of the judgment of the military commission under this
subsection only upon petition to the Court for such determination.
``(B) A petition on a judgment under subparagraph (A) shall be
filed by the accused in the Court not later than 20 days after the date
on which--
``(i) written notice of the final decision of the military
commission is served on the accused or defense counsel; or
``(ii) 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.
``(C) The accused may not file a petition under subparagraph (A) if
the accused has waived the right to appellate review under section
950c(a) of this title.
``(4) The determination by the United States Court of Appeals for
the District of Columbia Circuit of the final validity of a judgment of
a military commission under this subsection shall be governed by the
provisions of section 1005(e)(3) of the Detainee Treatment Act of 2005
(42 U.S.C. 801 note).
``(b) Review by Supreme Court.--The Supreme Court of the United
States may review by writ of certiorari pursuant to section 1257 of
title 28 the final judgment of the United States Court of Appeals for
the District of Columbia Circuit in a determination under subsection
(a).
``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 of counsel for
appearing before military commissions under this chapter.
``(b) Representation of United States.--Appellate counsel may
represent the United States in any appeal or review proceeding under
this chapter. Appellate Government counsel may represent the United
States before the United States Court of Appeals for the District of
Columbia Circuit and the Supreme Court in cases arising under this
chapter when requested to do so by the Attorney General.
``(c) Representation of Accused.--The accused shall be represented
before the United States Court of Appeals for the District of Columbia
Circuit or the Supreme Court by military appellate counsel, or by
civilian counsel if retained by him.
``Sec. 950i. Execution of sentence; suspension of sentence
``(a) Execution of Sentence of Death Only Upon Approval by the
President.--If the sentence of a military commission under this chapter
extends to death, that part of the sentence providing for death may not
be executed until approved by the President. In such a case, the
President may commute, remit, or suspend the sentence, or any part
thereof, as he sees fit.
``(b) Execution of Sentence of Death Only Upon Final Judgment of
Legality of Proceedings.--(1) If the sentence of a military commission
under this chapter extends to death, the sentence may not be executed
until there is a final judgement as to the legality of the proceedings
(and with respect to death, approval under subsection (a)).
``(2) A judgement as to legality of proceedings is final for
purposes of paragraph (1) when--
``(A) the time for the accused to file a petition for
review by the United States Court of Appeals for the 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 the 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 (A) a petition for a writ of certiorari is
not timely filed, (B) such a petition is denied by the Supreme
Court, or (C) review is otherwise completed in accordance with
the judgment of the Supreme Court.
``(c) Suspension of Sentence.--The Secretary of the Defense, or the
convening authority acting on the case (if other than the Secretary),
may suspend the execution of any sentence or part thereof in the case,
except a sentence of death.
``Sec. 950j. Finality of proceedings, findings, and sentences
``(a) Finality.--The appellate review of records of trial provided
by this chapter, and the proceedings, findings, and sentences of
military commissions as approved, reviewed, or affirmed as required by
this chapter, are final and conclusive. Orders publishing the
proceedings of military commissions under this chapter are binding upon
all departments, courts, agencies, and officers of the United States,
except as otherwise provided by the President.
``(b) Provisions of Chapter Sole Basis for Review of Military
Commission Procedures and Actions.--Except as otherwise provided in
this chapter and notwithstanding any other provision of law (including
section 2241 of title 28 or any other habeas corpus provision), no
court, justice, or judge shall have jurisdiction to hear or consider
any claim or cause of action whatsoever, including any action pending
on or filed after the date of enactment of this chapter, relating to
the prosecution, trial, or judgment of a military commission under this
chapter, including challenges to the lawfulness of procedures of
military commissions under this chapter.
``SUBCHAPTER VII--PUNITIVE MATTERS
``Sec.
``950aa. Definitions; construction of certain offenses; common
circumstances.
``950bb. Statement of substantive offenses.
``950cc. Principals.
``950dd. Accessory after the fact.
``950ee. Conviction of lesser offenses.
``950ff. Attempts.
``950gg. Solicitation.
``950hh. Murder of protected persons.
``950ii. Attacking civilians.
``950jj. Attacking civilian objects.
``950kk. Attacking protected property.
``950ll. Pillaging.
``950mm. Denying quarter.
``950nn. Taking hostages.
``950oo. Employing poison or similar weapons.
``950pp. Using protected persons as a shield.
``950qq. Using protected property as a shield.
``950rr. Torture.
``950ss. Cruel or inhuman treatment.
``950tt. Intentionally causing serious bodily injury.
``950uu. Mutilating or maiming.
``950vv. Murder in violation of the law of war.
``950ww. Destruction of property in violation of the law of war.
``950xx. Using treachery or perfidy.
``950yy. Improperly using a flag of truce.
``950zz. Improperly using a distinctive emblem.
``950aaa. Intentionally mistreating a dead body.
``950bbb. Rape.
``950ccc. Hijacking or hazarding a vessel or aircraft.
``950ddd. Terrorism.
``950eee. Providing material support for terrorism.
``950fff. Wrongfully aiding the enemy.
``950ggg. Spying.
``950hhh. Conspiracy.
``950iii. Contempt.
``950jjj. Perjury and obstruction of justice.
``Sec. 950aa. Definitions; construction of certain offenses; common
circumstances
``(a) Definitions.--In this subchapter:
``(1) The term `military objective' means combatants and
those objects during an armed conflict which, by their nature,
location, purpose, or use, effectively contribute to the war-
fighting or war-sustaining capability of an opposing force and
whose total or partial destruction, capture, or neutralization
would constitute a definite military advantage to the attacker
under the circumstances at the time of an attack.
``(2) The term `protected person' means any person entitled
to protection under one or more of the Geneva Conventions,
including civilians not taking an active part in hostilities,
military personnel placed out of combat by sickness, wounds, or
detention, and military medical or religious personnel.
``(3) The term `protected property' means any property
specifically protected by the law of war, including buildings
dedicated to religion, education, art, science, or charitable
purposes, historic monuments, hospitals, and places where the
sick and wounded are collected, but only if and to the extent
such property is not being used for military purposes or is not
otherwise a military objective. The term includes objects
properly identified by one of the distinctive emblems of the
Geneva Conventions, but does not include civilian property that
is a military objective.
``(b) Construction of Certain Offenses.--The intent required for
offenses under sections 950hh, 950ii, 950jj, 950kk, and 950ss of this
title precludes their applicability with regard to collateral damage or
to death, damage, or injury incident to a lawful attack.
``(c) Common Circumstances.--An offense specified in this
subchapter is triable by military commission under this chapter only if
the offense is committed in the context of and associated with armed
conflict.
``Sec. 950bb. 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. 950cc. Principals
``Any person is punishable as a principle under this chapter who--
``(1) commits an offense punishable by this chapter, or
aids, abets, counsels, commands, or procures its commission;
``(2) causes an act to be done which if directly performed
by him would be punishable by this chapter; or
``(3) is a superior commander who, with regard to acts
punishable under this chapter, knew, had reason to know, or
should have known, that a subordinate was about to commit such
acts or had done so and the superior failed to take the
necessary and reasonable measures to prevent such acts or to
punish the perpetrators thereof.
``Sec. 950dd. 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. 950ee. Conviction of lesser offenses
``An accused may be found guilty of an offense necessarily included
in the offense charged or of an attempt to commit either the offense
charged or an attempt to commit either the offense charged or an
offense necessarily included therein.
``Sec. 950ff. 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. 950gg. Solicitation
``Any person subject to this chapter who solicits or advises
another or others to commit one or more substantive offenses triable by
military commission under this chapter shall, if the offense solicited
or advised is attempted or committed, be punished with the punishment
provided for the commission of the offense, but, if the offense
solicited or advised is not committed or attempted, he shall be
punished as a military commission under this chapter may direct.
``Sec. 950hh. Murder of protected persons
``Any person subject to this chapter who intentionally kills one or
more protected persons shall be punished by death or such other
punishment as a military commission under this chapter may direct.
``Sec. 950ii. Attacking civilians
``Any person subject to this chapter who intentionally engages in
an attack upon a civilian population as such, or individual civilians
not taking active part in hostilities, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may direct, and,
if death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter may
direct.
``Sec. 950jj. Attacking civilian objects
``Any person subject to this chapter who intentionally engages in
an attack upon a civilian object that is not a military objective shall
be punished as a military commission under this chapter may direct.
``Sec. 950kk. Attacking protected property
``Any person subject to this chapter who intentionally engages in
an attack upon protected property shall be punished as a military
commission under this chapter may direct.
``Sec. 950ll. Pillaging
``Any person subject to this chapter who intentionally and in the
absence of military necessity appropriates or seizes property for
private or personal use, without the consent of a person with authority
to permit such appropriation or seizure, shall be punished as a
military commission under this chapter may direct.
``Sec. 950mm. Denying quarter
``Any person subject to this chapter who, with effective command or
control over subordinate groups, declares, orders, or otherwise
indicates to those groups that there shall be no survivors or surrender
accepted, with the intent to threaten an adversary or to conduct
hostilities such that there would be no survivors or surrender
accepted, shall be punished as a military commission under this chapter
may direct.
``Sec. 950nn. Taking hostages
``Any person subject to this chapter who, having knowingly seized
or detained one or more persons, threatens to kill, injure, or continue
to detain such person or persons with the intent of compelling any
nation, person other than the hostage, or group of persons to act or
refrain from acting as an explicit or implicit condition for the safety
or release of such person or persons, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may direct, and,
if death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter may
direct.
``Sec. 950oo. Employing poison or similar weapons
``Any person subject to this chapter who intentionally, as a method
of warfare, employs a substance or weapon that releases a substance
that causes death or serious and lasting damage to health in the
ordinary course of events, through its asphyxiating, bacteriological,
or toxic properties, shall be punished, if death results to one or more
of the victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does not result
to any of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``Sec. 950pp. Using protected persons as a shield
``Any person subject to this chapter who positions, or otherwise
takes advantage of, a protected person with the intent to shield a
military objective from attack. or to shield, favor, or impede military
operations, shall be punished, if death results to one or more of the
victims, by death or such other punishment as a military commission
under this chapter may direct, and, if death does not result to any of
the victims, by such punishment, other than death, as a military
commission under this chapter may direct.
``Sec. 950qq. Using protected property as a shield
``Any person subject to this chapter who positions, or otherwise
takes advantage of the location of, protected property with the intent
to shield a military objective from attack, or to shield, favor, or
impede military operations, shall be punished as a military commission
under this chapter may direct.
``Sec. 950rr. Torture
``(a) Offense.--Any person subject to this chapter who commits an
act specifically intended to inflict severe physical or mental pain or
suffering (other than pain or suffering incidental to lawful sanctions)
upon another person within his custody or physical control for the
purpose of obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination of any
kind, shall be punished, if death results to one or more of the
victims, by death or such other punishment as a military commission
under this chapter may direct, and, if death does not result to any of
the victims, by such punishment, other than death, as a military
commission under this chapter may direct.
``(b) Severe Mental Pain or Suffering Defined.--In this section,
the term `severe mental pain or suffering' has the meaning given that
term in section 2340(2) of title 18.
``Sec. 950ss. Cruel or inhuman treatment
``(a) Offense.--Any person subject to this chapter 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 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 section:
``(1) The term `severe mental pain or suffering' has the
meaning given that term in section 2340(2) of title 18.
``(2) The term `serious physical pain or suffering' means
bodily injury that involves--
``(A) a substantial risk of death;
``(B) extreme physical pain;
``(C) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
``(D) significant loss or impairment of the
function of a bodily member, organ, or mental faculty.
``(3) 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--
``(A) the term `serious' shall replace the term
`severe' where it appears; and
``(B) as to conduct occurring after the date of the
enactment of the Military Commission 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.
``Sec. 950tt. Intentionally causing serious bodily injury
``(a) Offense.--Any person subject to this chapter who
intentionally causes serious bodily injury to one or more persons,
including lawful combatants, in violation of the law of war shall be
punished, if death results to one or more of the victims, by death or
such other punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims, by such
punishment, other than death, as a military commission under this
chapter may direct.
``(b) Serious Bodily Injury Defined.--In this section, the term
`serious bodily injury' means bodily injury which involves--
``(1) a substantial risk of death;
``(2) extreme physical pain;
``(3) protracted and obvious disfigurement; or
``(4) protracted loss or impairment of the function of a
bodily member, organ, or mental faculty.
``Sec. 950uu. Mutilating or maiming
``Any person subject to this chapter who intentionally injures one
or more protected persons by disfiguring the person or persons by any
mutilation of the person or persons, or by permanently disabling any
member, limb, or organ of the body of the person or persons, without
any legitimate medical or dental purpose, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may direct, and,
if death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter may
direct.
``Sec. 950vv. Murder in violation of the law of war
``Any person subject to this chapter who intentionally kills one or
more persons, including lawful combatants, in violation of the law of
war shall be punished by death or such other punishment as a military
commission under this chapter may direct.
``Sec. 950ww. Destruction of property in violation of the law of war
``Any person subject to this chapter who intentionally destroys
property belonging to another person in violation of the law of war
shall punished as a military commission under this chapter may direct.
``Sec. 950xx. Using treachery or perfidy
``Any person subject to this chapter who, after inviting the
confidence or belief of one or more persons that they were entitled to,
or obliged to accord, protection under the law of war, intentionally
makes use of that confidence or belief in killing, injuring, or
capturing such person or persons shall be punished, if death results to
one or more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death does
not result to any of the victims, by such punishment, other than death,
as a military commission under this chapter may direct.
``Sec. 950yy. Improperly using a flag of truce
``Any person subject to this chapter who uses a flag of truce to
feign an intention to negotiate, surrender, or otherwise suspend
hostilities when there is no such intention shall be punished as a
military commission under this chapter may direct.
``Sec. 950zz. Improperly using a distinctive emblem
``Any person subject to this chapter who intentionally uses a
distinctive emblem recognized by the law of war for combatant purposes
in a manner prohibited by the law of war shall be punished as a
military commission under this chapter may direct.
``Sec. 950aaa. Intentionally mistreating a dead body
``Any person subject to this chapter who intentionally mistreats
the body of a dead person, without justification by legitimate military
necessary, shall be punished as a military commission under this
chapter may direct.
``Sec. 950bbb. Rape
``Any person subject to this chapter who forcibly or with coercion
or threat of force wrongfully invades the body of a person by
penetrating, however slightly, the anal or genital opening of the
victim with any part of the body of the accused, or with any foreign
object, shall be punished as a military commission under this chapter
may direct.
``Sec. 950ccc. Hijacking or hazarding a vessel or aircraft
``Any person subject to this chapter who intentionally seizes,
exercises unauthorized control over, or endangers the safe navigation
of a vessel or aircraft that is not a legitimate military objective
shall be punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under this
chapter may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a military commission
under this chapter may direct.
``Sec. 950ddd. Terrorism
``Any person subject to this chapter who intentionally kills or
inflicts great bodily harm on one or more protected persons, or
intentionally engages in an act that evinces a wanton disregard for
human life, in a manner calculated to influence or affect the conduct
of government or civilian population by intimidation or coercion, or to
retaliate against government conduct, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may direct, and,
if death does not result to any of the victims, by such punishment,
other than death, as a military commission under this chapter may
direct.
``Sec. 950eee. Providing material support for terrorism
``(a) Offense.--Any person subject to this chapter who provides
material support or resources, knowing or intending that they are to be
used in preparation for, or in carrying out, an act of terrorism (as
set forth in section 950ddd of this title), or who intentionally
provides material support or resources to an international terrorist
organization engaged in hostilities against the United States, knowing
that such organization has engaged or engages in terrorism (as so set
forth), shall be punished as a military commission under this chapter
may direct.
``(b) Material Support or Resources Defined.--In this section, the
term `material support or resources' has the meaning given that term in
section 2339A(b) of title 18.
``Sec. 950fff. Wrongfully aiding the enemy
``Any person subject to this chapter who, in breach of an
allegiance or duty to the United States, knowingly and intentionally
aids an enemy of the United States, or one of the co-belligerents of
the enemy, shall be punished as a military commission under this
chapter may direct.
``Sec. 950ggg. Spying
``Any person subject to this chapter who, in violation of the law
of war and with intent or reason to believe that it is to be used to
the injury of the United States or to the advantage of a foreign power,
collects or attempts to collect information by clandestine means or
while acting under false pretenses, for the purpose of conveying such
information to an enemy of the United States, or one of the co-
belligerents of the enemy, shall be punished by death or such other
punishment as a military commission under this chapter may direct.
``Sec. 950hhh. Conspiracy
``Any person subject to this chapter who conspires to commit one or
more substantive offenses triable by military commission under this
subchapter, and who knowingly does any overt act to effect the object
of the conspiracy, shall be punished, if death results to one or more
of the victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does not result
to any of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``Sec. 950iii. 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.
``Sec. 950jjj. Perjury and obstruction of justice
``A military commission under this chapter may try offenses and
impose such punishment as the military commission may direct for
perjury, false testimony, or obstruction of justice related to the
military commission.''.
(2) Tables of chapters amendments.--The tables of chapters
at the beginning of subtitle A and part II of subtitle A of
title 10, United States Code, are each amended by inserting
after the item relating to chapter 47 the following new item:
``Chapter 47A. Military Commissions......................... 948a.''.
(b) Submittal of Procedures to Congress.--
(1) Submittal of procedures.--Not later than 90 days after
the date of the enactment of this Act, the Secretary of Defense
shall submit to the Committees on Armed Services of the Senate
and the House of Representatives a report setting forth the
procedures for military commissions prescribed under chapter
47A of title 10, United States Code (as added by subsection
(a)).
(2) Submittal of modifications.--Not later than 60 days
before the date on which any proposed modification of the
procedures described in paragraph (1) shall go into effect, the
Secretary shall submit to the committees of Congress referred
to in that paragraph a report describing such modification.
SEC. 5. AMENDMENTS TO OTHER LAWS.
(a) Detainee Treatment Act of 2005.--Section 1004(b) of the
Detainee Treatment Act of 2005 (title X of Public Law 109-148; 119
Stat. 2740; 42 U.S.C. 200dd-1(b)) is amended--
(1) by striking ``may provide'' and inserting ``shall
provide'';
(2) by inserting ``or investigation'' after ``criminal
prosecution''; and
(3) by inserting ``whether before United States courts or
agencies, foreign courts or agencies, or international courts
or agencies,'' after ``described in that subsection,''.
(b) Uniform Code of Military Justice.--Chapter 47 of title, 10,
United States Code (the Uniform Code of Military Justice), is amended
as follows:
(1) Section 802 (article 2 of the Uniform Code of Military
Justice) is amended by adding at the end the following new
paragraph:
``(13) Lawful enemy combatants (as that term is defined in
section 948a(3) of this title) who violate the law of war.''.
(2) Section 821 (article 21 of the Uniform Code of Military
Justice) is amended by striking ``by statute or law of war''.
(3) Section 836(a) (article 36(a) of the Uniform Code of
Military Justice) is amended by inserting ``(other than
military commissions under chapter 47A of this title)'' after
``other military tribunals''.
(c) Punitive Article of Conspiracy.--Section 881 of title 10,
United States Code (article 81 of the Uniform Code of Military
Justice)), is amended--
(1) by inserting ``(a)'' before ``Any person''; and
(2) by adding at the end the following new subsection:
``(b) Any person subject to this chapter or chapter 47A of this
title who conspires with any other person to commit an offense under
the law of war, and who knowingly does an overt act to effect the
object of the conspiracy, shall be punished, if death results to one or
more of the victims, by death or such other punishment as a court-
martial or military commission may direct, and, if death does not
result to any of the victims, by such punishment, other than death, as
a court-martial or military commission may direct.''.
(d) Review of Judgments of Military Commissions.--
(1) Review by supreme court.--Section 1259 of title 28,
United States Code, is amended by adding at the end the
following new paragraph:
``(5) Cases tried by military commission and reviewed by
the United States Court of Appeals for the District of Columbia
Circuit under section 950g of title 10.''.
(2) Detainee treatment act of 2005.--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--
(A) 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'';
(B) by striking subparagraph (B) and
inserting the following new subparagraph (B):
``(B) Grant of review.--Review under this paragraph
shall be as of right.'';
(C) in subparagraph (C)--
(i) 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
(ii) in clause (ii), by striking
``pursuant to such military order'' and
inserting ``by the military
commission''; and
(D) in subparagraph (D)(i), by striking
``specified in the military order'' and
inserting ``specified for a military
commission''.
SEC. 6. HABEAS CORPUS MATTERS.
(a) In General.--Section 2241 of title 28, United States Code, is
amended--
(1) by striking subsection (e) (as added by section
1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by
striking subsection (e) (as added by added by section
1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and
(2) by adding at the end the following new subsection:
``(e)(1) No court, justice, or judge shall have jurisdiction to
hear or consider an application for a writ of habeas corpus filed by or
on behalf of an alien detained by the United States who--
``(A) is currently in United States custody; and
``(B) 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 detained by the United States who--
``(A) is currently in United States custody; and
``(B) 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 amendments made by subsection (a) shall
take effect on the date of the enactment of this Act, and shall apply
to all cases, without exception, pending on or after the date of the
enactment of this Act which relate to any aspect of the detention,
transfer, treatment, trial, or conditions of detention of an alien
detained by the United States since September 11, 2001.
SEC. 7. 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 or 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 3217);
(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. 8. 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 (as to non-grave breach provisions 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) 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) 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
Commission 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.''.
(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 appropriate
action to ensure compliance with this subsection, including
through the establishment of administrative rules and
procedures.
SEC. 9. DETENTION COVERED BY REVIEW OF DECISIONS OF COMBATANT STATUS
REVIEW TRIBUNALS OF PROPRIETY OF DETENTION.
Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005
(title X of Public Law 109-148; 119 Stat. 2742; 10 U.S.C. 801 note) is
amended by striking ``the Department of Defense at Guantanamo Bay,
Cuba'' and inserting ``the United States''.
SEC. 10. SEVERABILITY.
If any provision of this Act or amendment made by a provision of
this Act, or the application of such provision or amendment to any
person or circumstance, is held to be unconstitutional, the remainder
of this Act and the amendments made by this Act, and the application of
such provisions and amendments to any other person or circumstance,
shall not be affected thereby.
Calendar No. 634
109th CONGRESS
2d Session
S. 3930
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A BILL
To authorize trial by military commission for violations of the law of
war, and for other purposes.
_______________________________________________________________________
September 25, 2006
Read the second time and placed on the calendar