1.This Act may be cited as the
Military Commissions Act of
2006
.
2.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.
3.Authorization
for military commissions
(a)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)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 authorityA 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)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)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)Each
report under this subsection shall be submitted in unclassified form, but may
include a classified annex.
4.
(a)
(1)Subtitle A of title 10, United States Code, is amended by
inserting after chapter 47 the following new chapter:
47A
SUBCHAPTER
Sec.
I. General Provisions948a.
II. Composition of Military
Commissions948h.
III. Pre-Trial Procedure948q.
IV. Trial Procedure949a.
V. Sentences949s.
VI. Post-Trial Procedure and Review of Military
Commissions950a.
VII. Punitive Matters950aa.
I
Sec.
948a. Definitions.
948b. Military commissions generally.
948c. Persons subject to military commissions.
948d. Jurisdiction of military commissions.
948a.In this chapter:
(1)The term alien means an
individual who is not a citizen of the United States.
(2)The term classified information means
the following:
(A)Any information
or material that has been determined by the United States Government pursuant
to statute, Executive order, or regulation to require protection against
unauthorized disclosure for reasons of national security.
(B)Any restricted
data, as that term is defined in section 11 y. of the Atomic Energy Act of 1954
(42 U.S.C. 2014(y)).
(3)The term 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)The term unlawful enemy combatant means an
individual engaged in hostilities against the United States who is not a lawful
enemy combatant.
948b.Military
commissions generally
(a)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
provisionsThe 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 3A 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 precedentsThe 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 rightsNo 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.
948c.Persons
subject to military commissionsAny alien unlawful enemy combatant engaged
in hostilities or having supported hostilities against the United States is
subject to trial by military commission as set forth in this chapter.
948d.Jurisdiction
of military commissions
(a)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)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)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.
IIComposition of
Military Commissions
Sec.
948h. Who may convene military commissions.
948i. Who may serve on military commissions.
948j. Military judge of a military commission.
948k. Detail of trial counsel and defense counsel.
948l. Detail or employment of reporters and
interpreters.
948m. Number of members; excuse of members; absent and
additional members.
948h.Who may
convene military commissionsMilitary commissions under this chapter may
be convened by the Secretary of Defense or by any officer or official of the
United States designated by the Secretary for that purpose.
948i.Who may serve
on military commissions
(a)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)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)Before a military commission under this chapter is
assembled for the trial of a case, the convening authority may excuse a member
from participating in the case.
948j.Military
judge of a military commission
(a)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)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 individualsNo 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 voteA 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)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 authorityThe convening
authority of a military commission under this chapter shall not prepare or
review any report concerning the effectiveness, fitness, or efficiency of a
military judge detailed to the military commission which relates to his
performance of duty as a military judge on the military commission.
948k.Detail of
trial counsel and defense counsel
(a)Detail of
counsel generally(1)Trial counsel and
military defense counsel shall be detailed for each military commission under
this chapter.
(2)Assistant trial counsel and assistant
and associate defense counsel may be detailed for a military commission under
this chapter.
(3)Military defense counsel for a
military commission under this chapter shall be detailed as soon as practicable
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)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)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 individualsNo person who has acted as an
investigator, military judge, or member of a military commission under this
chapter in any case may act later as trial counsel or military defense counsel
in the same case. No person who has acted for the prosecution before a military
commission under this chapter may act later in the same case for the defense,
nor may any person who has acted for the defense before a military commission
under this chapter act later in the same case for the prosecution.
948l.Detail or
employment of reporters and interpreters
(a)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)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)The transcript of a
military commission under this chapter shall be under the control of the
convening authority of the military commission, who shall also be responsible
for preparing the record of the proceedings of the military commission.
948m.Number of
members; excuse of members; absent and additional members
(a)(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)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 membersWhenever a military commission under this
chapter is reduced below the number of members required by subsection (a), the
trial may not proceed unless the convening authority details new members
sufficient to provide not less than such number. The trial may proceed with the
new members present after the recorded evidence previously introduced before
the members has been read to the military commission in the presence of the
military judge, the accused (except as provided in section 949d of this title),
and counsel for both sides.
III
Sec.
948q. Charges and specifications.
948r. Compulsory self-incrimination
prohibited; statements obtained by torture or other methods of
coercion.
948s. Service of charges.
948q.Charges and
specifications
(a)Charges and
specificationsCharges 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)Upon the swearing of the charges and specifications in
accordance with subsection (a), the accused shall be informed of the charges
and specifications against him as soon as practicable.
948r.Compulsory
self-incrimination prohibited; statements obtained by torture or other methods
of coercion
(a)No person shall be required to testify against himself at
a proceeding of a military commission under this chapter.
(b)Statements
obtained by tortureA 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 2005A
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 2005A
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.
948s.The trial counsel
assigned to a case before a military commission under this chapter shall cause
to be served upon the accused and military defense counsel a copy of the
charges upon which trial is to be had in English and, if appropriate, in
another language that the accused understands, sufficiently in advance of trial
to prepare a defense.
IV
Sec.
949a. Rules.
949b. Unlawfully influencing action of military
commission.
949c. Duties of trial counsel and defense counsel.
949d. Sessions.
949e. Continuances.
949f. Challenges.
949g. Oaths.
949h. Former jeopardy.
949i. Pleas of the accused.
949j. Opportunity to obtain witnesses and other
evidence.
949k. Defense of lack of mental responsibility.
949l. Voting and rulings.
949m. Number of votes required.
949n. Military commission to announce action.
949o. Record of trial.
949a.
(a)Procedures and
Rules of EvidencePretrial, 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)(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 regulationsThe Secretary of Defense may
delegate the authority of the Secretary to prescribe regulations under this
chapter.
949b.Unlawfully
influencing action of military commission
(a)(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
fitnessIn the preparation of an effectiveness, fitness, or
efficiency report or any other report or document used in whole or in part for
the purpose of determining whether a commissioned officer of the armed forces
is qualified to be advanced in grade, or in determining the assignment or
transfer of any such officer or whether any such officer should be retained on
active duty, no person may—
(1)consider or
evaluate the performance of duty of any member of a military commission under
this chapter; or
(2)give a less
favorable rating or evaluation to any commissioned officer because of the zeal
with which such officer, in acting as counsel, represented any accused before a
military commission under this chapter.
949c.Duties of
trial counsel and defense counsel
(a)The trial counsel of a military commission under this
chapter shall prosecute in the name of the United States.
(b)(1)The accused shall be
represented in his defense before a military commission under this chapter as
provided in this subsection.
(2)The accused shall be represented by
military counsel detailed under section 948k of this title.
(3)The accused may be represented by
civilian counsel if retained by the accused, provided that such civilian
counsel—
(A)is a United States citizen;
(B)is admitted to the practice of law in
a State, district, or possession of the United States, or before a Federal
court;
(C)has not been the subject of any
sanction of disciplinary action by any court, bar, or other competent
governmental authority for relevant misconduct;
(D)has been determined to be eligible for
access to information classified at the level Secret or higher; and
(E)has signed a written agreement to
comply with all applicable regulations or instructions for counsel, including
any rules of court for conduct during the proceedings.
(4)If the accused is represented by
civilian counsel, military counsel detailed shall act as associate
counsel.
(5)The accused is not entitled to be
represented by more than one military counsel. However, the person authorized
under regulations prescribed under section 948k of this title to detail
counsel, in such person's sole discretion, may detail additional military
counsel to represent the accused.
(6)Defense counsel may cross-examine
each witness for the prosecution who testifies before a military commission
under this chapter.
949d.
(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 membersWhen the members of a military commission under
this chapter deliberate or vote, only the members may be present.
(c)(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 proceedingsThe 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
disclosureTo 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 activitiesThe 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 trialDuring 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 materialsA 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)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.
949e.The military judge in a military commission
under this chapter may, for reasonable cause, grant a continuance to any party
for such time, and as often, as may appear to be just.
949f.
(a)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)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 membersWhenever additional members are
detailed to a military commission under this chapter, and after any challenges
for cause against such additional members are presented and decided, the
accused and trial counsel are each entitled to one peremptory challenge against
members not previously subject to peremptory challenge.
949g.
(a)(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)Each
witness before a military commission under this chapter shall be examined on
oath.
(c)In this section, the term oath includes an
affirmation.
949h.
(a)No person may, without his consent, be tried by a
military commission under this chapter a second time for the same
offense.
(b)No proceeding in which the accused has been found guilty by
military commission under this chapter upon any charge or specification is a
trial in the sense of this section until the finding of guilty has become final
after review of the case has been fully completed.
949i.
(a)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 pleaWith respect to any charge or
specification to which a plea of guilty has been made by the accused in a
military commission under this chapter and accepted by the military judge, a
finding of guilty of the charge or specification may be entered immediately
without a vote. The finding shall constitute the finding of the military
commission unless the plea of guilty is withdrawn prior to announcement of the
sentence, in which event the proceedings shall continue as though the accused
had pleaded not guilty.
949j.Opportunity
to obtain witnesses and other evidence
(a)(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)(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.
949k.Defense of
lack of mental responsibility
(a)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)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 defenseWhenever 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 findingThe accused shall be found not guilty by
reason of lack of mental responsibility under subsection (c)(3) only if a
majority of the members present at the time the vote is taken determines that
the defense of lack of mental responsibility has been established.
949l.
(a)Vote by secret
written ballotVoting by members of a military commission under
this chapter on the findings and on the sentence shall be by secret written
ballot.
(b)(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 voteBefore a vote is taken of the findings of a
military commission under this chapter, the military judge shall, in the
presence of the accused and counsel, instruct the members as to the elements of
the offense and charge the members—
(1)that the accused
must be presumed to be innocent until his guilt is established by legal and
competent evidence beyond a reasonable doubt;
(2)that in the case
being considered, if there is a reasonable doubt as to the guilt of the
accused, the doubt must be resolved in favor of the accused and he must be
acquitted;
(3)that, if there is
reasonable doubt as to the degree of guilt, the finding must be in a lower
degree as to which there is no reasonable doubt; and
(4)that the burden
of proof to establish the guilt of the accused beyond a reasonable doubt is
upon the United States.
949m.
(a)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)(1)Except as provided in
paragraphs (2) and (3), sentences shall be determined by a military commission
by the concurrence of two-thirds of the members present at the time the vote is
taken.
(2)No person may be sentenced to death
by a military commission, except insofar as—
(A)the penalty of death has been
expressly authorized under this chapter, chapter 47 of this title, or the law
of war for an offense of which the accused has been found guilty;
(B)trial counsel expressly sought the
penalty of death by filing an appropriate notice in advance of trial;
(C)the accused was convicted of the
offense by the concurrence of all the members present at the time the vote is
taken; and
(D)all members present at the time the
vote was taken concurred in the sentence of death.
(3)No person may be sentenced to life
imprisonment, or to confinement for more than 10 years, by a military
commission under this chapter except by the concurrence of three-fourths of the
members present at the time the vote is taken.
(c)Number of
members required for penalty of death(1)Except as provided in
paragraph (2), in a case in which the penalty of death is sought, the number of
members of the military commission under this chapter shall be not less than 12
members.
(2)In any case described in paragraph
(1) in which 12 members are not reasonably available for a military commission
because of physical conditions or military exigencies, the convening authority
shall specify a lesser number of members for the military commission (but not
fewer than 5 members), and the military commission may be assembled, and the
trial held, with not less than the number of members so specified. In any such
case, the convening authority shall make a detailed written statement, to be
appended to the record, stating why a greater number of members were not
reasonably available.
949n.Military
commission to announce actionA military commission under this chapter
shall announce its findings and sentence to the parties as soon as
determined.
949o.
(a)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)A complete record of the proceedings and testimony shall
be prepared in every military commission under this chapter.
(c)Provision of
copy to accusedA 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.
V
Sec.
949s. Cruel or unusual punishments prohibited.
949t. Maximum limits.
949u. Execution of confinement.
949s.Cruel or
unusual punishments prohibitedPunishment by flogging, or by branding,
marking, or tattooing on the body, or any other cruel or unusual punishment,
may not be adjudged by a military commission under this chapter or inflicted
under this chapter upon any person subject to this chapter. The use of irons,
single or double, except for the purpose of safe custody, is prohibited under
this chapter.
949t.The punishment which a
military commission under this chapter may direct for an offense may not exceed
such limits as the President or Secretary of Defense may prescribe for that
offense.
949u.
(a)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 forcesPersons 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.
VIPost-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.
950a.Error of law;
lesser included offense
(a)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)Any reviewing authority with the power to approve or
affirm a finding of guilty by a military commission under this chapter may
approve or affirm, instead, so much of the finding as includes a lesser
included offense.
950b.Review by the
convening authority
(a)Notice to
convening authority of findings and sentenceThe findings and
sentence of a military commission under this chapter shall be reported in
writing promptly to the convening authority after the announcement of the
sentence.
(b)Submittal of
matters by accused to convening authority(1)The accused may submit
to the convening authority matters for consideration by the convening authority
with respect to the findings and the sentence of the military commission under
this chapter.
(2)(A)Except as provided in
subparagraph (B), a submittal under paragraph (1) shall be made in writing
within 20 days after accused has been give an authenticated record of trial
under section 949o(c) of this title.
(B)If the accused shows that additional
time is required for the accused to make a submittal under paragraph (1), the
convening authority may, for good cause, extend the applicable period under
subparagraph (A) for not more than an additional 20 days.
(3)The accused may waive his right to
make a submittal to the convening authority under paragraph (1). Such a waiver
shall be made in writing, and may not be revoked. For the purposes of
subsection (c)(2), the time within which the accused may make a submittal under
this subsection shall be deemed to have expired upon the submittal of a waiver
under this paragraph to the convening authority.
(c)Action by
convening authority(1)The authority under
this subsection to modify the findings and sentence of a military commission
under this chapter is a matter of the sole discretion and prerogative of the
convening authority.
(2)The convening authority is not
required to take action on the findings of a military commission under this
chapter. If the convening authority takes action on the findings, the convening
authority may, in his sole discretion, only—
(A)dismiss any charge or specification by
setting aside a finding of guilty thereto; or
(B)change a finding of guilty to a charge
to a finding of guilty to an offense that is a lesser included offense of the
offense stated in the charge.
(3)(A)The convening authority
shall take action on the sentence of a military commission under this
chapter.
(B)Subject to regulations prescribed by
the Secretary of Defense, action under this paragraph may be taken only after
consideration of any matters submitted by the accused under subsection (b) or
after the time for submitting such matters expires, whichever is
earlier.
(C)In taking action under this
paragraph, the convening authority may, in his sole discretion, approve,
disapprove, commute, or suspend the sentence in whole or in part. The convening
authority may not increase a sentence beyond that which is found by the
military commission.
(4)The convening authority shall serve
on the accused or on defense counsel notice of any action taken by the
convening authority under this subsection.
(d)Order of
revision or rehearing(1)Subject to paragraphs
(2) and (3), the convening authority of a military commission under this
chapter may, in his sole discretion, order a proceeding in revision or a
rehearing.
(2)(A)Except as provided in
subparagraph (B), a proceeding in revision may be ordered by the convening
authority if—
(i)there is an apparent error or omission
in the record; or
(ii)the record shows improper or
inconsistent action by the military commission with respect to the findings or
sentence that can be rectified without material prejudice to the substantial
rights of the accused.
(B)In no case may a proceeding in
revision—
(i)reconsider a finding of not guilty of
a specification or a ruling which amounts to a finding of not guilty;
(ii)reconsider a finding of not guilty of
any charge, unless there has been a finding of guilty under a specification
laid under that charge, which sufficiently alleges a violation; or
(iii)increase the severity of the
sentence unless the sentence prescribed for the offense is mandatory.
(3)A rehearing may be ordered by the
convening authority if the convening authority disapproves the findings and
sentence and states the reasons for disapproval of the findings. If the
convening authority disapproves the finding and sentence and does not order a
rehearing, the convening authority shall dismiss the charges. A rehearing as to
the findings may not be ordered by the convening authority when there is a lack
of sufficient evidence in the record to support the findings. A rehearing as to
the sentence may be ordered by the convening authority if the convening
authority disapproves the sentence.
950c.Waiver or
withdrawal of appeal
(a)Waiver of right
of review(1)An accused may file
with the convening authority a statement expressly waiving the right of the
accused to appellate review by the 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)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 withdrawalA waiver of the right to appellate review or
the withdrawal of an appeal under this section bars review under section 950f
of this title.
950d.Appeal by the
United States
(a)(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)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)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.
950e.
(a)Composition of
military commission for rehearingEach 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)(1)Upon a rehearing—
(A)the accused may not be tried for any
offense of which he was found not guilty by the first military commission;
and
(B)no
sentence in excess of or more than the original sentence may be imposed
unless—
(i)the sentence is based upon a finding of
guilty of an offense not considered upon the merits in the original
proceedings; or
(ii)the sentence prescribed for the offense is
mandatory.
(2)Upon a rehearing, if the sentence approved
after the first military commission was in accordance with a pretrial agreement
and the accused at the rehearing changes his plea with respect to the charges
or specifications upon which the pretrial agreement was based, or otherwise
does not comply with pretrial agreement, the sentence as to those charges or
specifications may include any punishment not in excess of that lawfully
adjudged at the first military commission.
950f.Review by
Court of Military Commission Review
(a)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 judgesThe 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)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)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.
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)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).
950h.
(a)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 StatesAppellate 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 accusedThe 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.
950i.Execution of
sentence; suspension of sentence
(a)Execution of
sentence of death only upon approval by the PresidentIf 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)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.
950j.Finality of
proceedings, findings, and sentences
(a)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
actionsExcept as otherwise provided in this chapter and
notwithstanding any other provision of law (including section 2241 of title 28
or any other habeas corpus provision), no court, justice, or judge shall have
jurisdiction to hear or consider any claim or cause of action whatsoever,
including any action pending on or filed after the date of enactment of this
chapter, relating to the prosecution, trial, or judgment of a military
commission under this chapter, including challenges to the lawfulness of
procedures of military commissions under this chapter.
VII
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.
950aa.Definitions;
construction of certain offenses; common circumstances
(a)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 offensesThe 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)An offense specified in this subchapter is triable
by military commission under this chapter only if the offense is committed in
the context of and associated with armed conflict.
950bb.Statement of
substantive offenses
(a)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)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.
950cc.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.
950dd.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.
950ee.Conviction
of lesser offensesAn 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.
950ff.
(a)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)An act, done with specific intent to commit an offense
under this chapter, amounting to more than mere preparation and tending, even
though failing, to effect its commission, is an attempt to commit that
offense.
(c)Any person subject to this chapter may be convicted
of an attempt to commit an offense although it appears on the trial that the
offense was consummated.
950gg.Any person subject to this chapter who
solicits or advises another or others to commit one or more substantive
offenses triable by military commission under this chapter shall, if the
offense solicited or advised is attempted or committed, be punished with the
punishment provided for the commission of the offense, but, if the offense
solicited or advised is not committed or attempted, he shall be punished as a
military commission under this chapter may direct.
950hh.Murder of
protected personsAny person
subject to this chapter who intentionally kills one or more protected persons
shall be punished by death or such other punishment as a military commission
under this chapter may direct.
950ii.Any person subject
to this chapter who intentionally engages in an attack upon a civilian
population as such, or individual civilians not taking active part in
hostilities, shall be punished, if death results to one or more of the victims,
by death or such other punishment as a military commission under this chapter
may direct, and, if death does not result to any of the victims, by such
punishment, other than death, as a military commission under this chapter may
direct.
950jj.Attacking
civilian objectsAny person
subject to this chapter who intentionally engages in an attack upon a civilian
object that is not a military objective shall be punished as a military
commission under this chapter may direct.
950kk.Attacking
protected propertyAny person
subject to this chapter who intentionally engages in an attack upon protected
property shall be punished as a military commission under this chapter may
direct.
950ll.Any person subject to this chapter who
intentionally and in the absence of military necessity appropriates or seizes
property for private or personal use, without the consent of a person with
authority to permit such appropriation or seizure, shall be punished as a
military commission under this chapter may direct.
950mm.Any person subject to
this chapter who, with effective command or control over subordinate groups,
declares, orders, or otherwise indicates to those groups that there shall be no
survivors or surrender accepted, with the intent to threaten an adversary or to
conduct hostilities such that there would be no survivors or surrender
accepted, shall be punished as a military commission under this chapter may
direct.
950nn.Any person subject to
this chapter who, having knowingly seized or detained one or more persons,
threatens to kill, injure, or continue to detain such person or persons with
the intent of compelling any nation, person other than the hostage, or group of
persons to act or refrain from acting as an explicit or implicit condition for
the safety or release of such person or persons, shall be punished, if death
results to one or more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if death does not
result to any of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
950oo.Employing
poison or similar weaponsAny
person subject to this chapter who intentionally, as a method of warfare,
employs a substance or weapon that releases a substance that causes death or
serious and lasting damage to health in the ordinary course of events, through
its asphyxiating, bacteriological, or toxic properties, shall be punished, if
death results to one or more of the victims, by death or such other punishment
as a military commission under this chapter may direct, and, if death does not
result to any of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
950pp.Using
protected persons as a shieldAny person subject to this chapter who
positions, or otherwise takes advantage of, a protected person with the intent
to shield a military objective from attack. or to shield, favor, or impede
military operations, shall be punished, if death results to one or more of the
victims, by death or such other punishment as a military commission under this
chapter may direct, and, if death does not result to any of the victims, by
such punishment, other than death, as a military commission under this chapter
may direct.
950qq.Using
protected property as a shieldAny person subject to this chapter who
positions, or otherwise takes advantage of the location of, protected property
with the intent to shield a military objective from attack, or to shield,
favor, or impede military operations, shall be punished as a military
commission under this chapter may direct.
950rr.
(a)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 definedIn this section, the term severe
mental pain or suffering has the meaning given that term in section
2340(2) of title 18.
950ss.Cruel or
inhuman treatment
(a)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)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.
950tt.Intentionally
causing serious bodily injury
(a)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 definedIn this section, the term serious bodily
injury means bodily injury which involves—
(1)a substantial
risk of death;
(2)extreme physical
pain;
(3)protracted and
obvious disfigurement; or
(4)protracted loss
or impairment of the function of a bodily member, organ, or mental
faculty.
950uu.Any person subject
to this chapter who intentionally injures one or more protected persons by
disfiguring the person or persons by any mutilation of the person or persons,
or by permanently disabling any member, limb, or organ of the body of the
person or persons, without any legitimate medical or dental purpose, shall be
punished, if death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter may direct, and,
if death does not result to any of the victims, by such punishment, other than
death, as a military commission under this chapter may direct.
950vv.Murder in
violation of the law of warAny person subject to this chapter who
intentionally kills one or more persons, including lawful combatants, in
violation of the law of war shall be punished by death or such other punishment
as a military commission under this chapter may direct.
950ww.Destruction
of property in violation of the law of warAny person subject to this chapter who
intentionally destroys property belonging to another person in violation of the
law of war shall punished as a military commission under this chapter may
direct.
950xx.Using
treachery or perfidyAny
person subject to this chapter who, after inviting the confidence or belief of
one or more persons that they were entitled to, or obliged to accord,
protection under the law of war, intentionally makes use of that confidence or
belief in killing, injuring, or capturing such person or persons shall be
punished, if death results to one or more of the victims, by death or such
other punishment as a military commission under this chapter may direct, and,
if death does not result to any of the victims, by such punishment, other than
death, as a military commission under this chapter may direct.
950yy.Improperly
using a flag of truceAny
person subject to this chapter who uses a flag of truce to feign an intention
to negotiate, surrender, or otherwise suspend hostilities when there is no such
intention shall be punished as a military commission under this chapter may
direct.
950zz.Improperly
using a distinctive emblemAny
person subject to this chapter who intentionally uses a distinctive emblem
recognized by the law of war for combatant purposes in a manner prohibited by
the law of war shall be punished as a military commission under this chapter
may direct.
950aaa.Intentionally
mistreating a dead bodyAny
person subject to this chapter who intentionally mistreats the body of a dead
person, without justification by legitimate military necessary, shall be
punished as a military commission under this chapter may direct.
950bbb.Any person subject to this chapter who
forcibly or with coercion or threat of force wrongfully invades the body of a
person by penetrating, however slightly, the anal or genital opening of the
victim with any part of the body of the accused, or with any foreign object,
shall be punished as a military commission under this chapter may
direct.
950ccc.Hijacking
or hazarding a vessel or aircraftAny person subject to this chapter who
intentionally seizes, exercises unauthorized control over, or endangers the
safe navigation of a vessel or aircraft that is not a legitimate military
objective shall be punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims, by such
punishment, other than death, as a military commission under this chapter may
direct.
950ddd.Any person subject to this chapter who
intentionally kills or inflicts great bodily harm on one or more protected
persons, or intentionally engages in an act that evinces a wanton disregard for
human life, in a manner calculated to influence or affect the conduct of
government or civilian population by intimidation or coercion, or to retaliate
against government conduct, shall be punished, if death results to one or more
of the victims, by death or such other punishment as a military commission
under this chapter may direct, and, if death does not result to any of the
victims, by such punishment, other than death, as a military commission under
this chapter may direct.
950eee.Providing
material support for terrorism
(a)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 definedIn this section, the term
material support or resources has the meaning given that term in
section 2339A(b) of title 18.
950fff.Wrongfully
aiding the enemyAny person
subject to this chapter who, in breach of an allegiance or duty to the United
States, knowingly and intentionally aids an enemy of the United States, or one
of the co-belligerents of the enemy, shall be punished as a military commission
under this chapter may direct.
950ggg.Any person subject to this chapter who, in
violation of the law of war and with intent or reason to believe that it is to
be used to the injury of the United States or to the advantage of a foreign
power, collects or attempts to collect information by clandestine means or
while acting under false pretenses, for the purpose of conveying such
information to an enemy of the United States, or one of the co-belligerents of
the enemy, shall be punished by death or such other punishment as a military
commission under this chapter may direct.
950hhh.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.
950iii.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.
950jjj.Perjury and
obstruction of justiceA
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 amendmentsThe tables of chapters at the beginning of
subtitle A and part II of subtitle A of title 10, United States Code, are each
amended by inserting after the item relating to chapter 47 the following new
item:
“Chapter 47A. Military Commissions948a.”.
(b)Submittal of
procedures to Congress
(1)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
modificationsNot later than 60 days before the date on which any
proposed modification of the procedures described in paragraph (1) shall go
into effect, the Secretary shall submit to the committees of Congress referred
to in that paragraph a report describing such modification.
5.
(a)Detainee
Treatment Act of 2005Section 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 JusticeChapter 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 ConspiracySection 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)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 2005Section 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)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
.
6.
(a)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)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.
7.Treaty
obligations not establishing grounds for certain claims
(a)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 definedIn 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).
8.Implementation
of treaty obligations
(a)Implementation
of treaty obligations
(1)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 breachesThe 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)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)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)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)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 treatmentThe 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 experimentsThe 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)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)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 injuryThe 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)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)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)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)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
attackThe 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 exchangeParagraph (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
applicabilityThe 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)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 definedIn 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)The
President shall take appropriate action to ensure compliance with this
subsection, including through the establishment of administrative rules and
procedures.
9.Detention
covered by review of decisions of Combatant Status Review Tribunals of
propriety of detentionSection
1005(e)(2)(B)(i) of the Detainee Treatment Act of 2005 (title X of Public Law
109–148; 119 Stat. 2742; 10 U.S.C. 801 note) is amended by striking the
Department of Defense at Guantanamo Bay, Cuba
and inserting the
United States
.
10.If any provision of this Act or amendment
made by a provision of this Act, or the application of such provision or
amendment to any person or circumstance, is held to be unconstitutional, the
remainder of this Act and the amendments made by this Act, and the application
of such provisions and amendments to any other person or circumstance, shall
not be affected thereby.
September 25, 2006
Read the second time and placed on the
calendar