[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[S. 4060 Introduced in Senate (IS)]







109th CONGRESS
  2d Session
                                S. 4060

 To amend the Military Commissions Act of 2006 to improve and enhance 
     due process and appellate procedures, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 16, 2006

   Mr. Dodd introduced the following bill; which was read twice and 
              referred to the Committee on Armed Services

_______________________________________________________________________

                                 A BILL



 To amend the Military Commissions Act of 2006 to improve and enhance 
     due process and appellate procedures, and for other purposes.

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

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Effective Terrorists Prosecution Act 
of 2006''.

SEC. 2. DEFINITION OF UNLAWFUL ENEMY COMBATANT.

    Paragraph (1) of section 948a of title 10, United States Code (as 
enacted by the Military Commissions Act of 2006 (Public Law 109-366)), 
is amended to read as follows:
            ``(1) Unlawful enemy combatant.--The term `unlawful enemy 
        combatant' means an individual who directly participates in 
        hostilities as part of an armed conflict against the United 
        States who is not a lawful enemy combatant. The term is used 
        solely to designate individuals triable by military commission 
        under this chapter.''.

SEC. 3. DETERMINATION OF UNLAWFUL ENEMY COMBATANT STATUS BY COMBATANT 
              STATUS REVIEW TRIBUNAL NOT DISPOSITIVE FOR PURPOSES OF 
              JURISDICTION OF MILITARY COMMISSIONS.

    Section 948d of title 10, United States Code (as enacted by the 
Military Commissions Act of 2006 (Public Law 109-366)), is amended--
            (1) by striking subsection (c); and
            (2) by redesignating subsection (d) as subsection (c).

SEC. 4. EXCLUSION FROM TRIAL BY MILITARY COMMISSION OF STATEMENTS 
              OBTAINED BY COERCION.

    Section 948r of title 10, United States Code (as enacted by the 
Military Commissions Act of 2006 (Public Law 109-366)), is amended by 
striking subsections (c) and (d) and inserting the following new 
subsection (c):
    ``(c) Exclusion of Statements Obtained by Coercion.--A statement 
obtained by use of coercion shall not be admissible in a military 
commission under this chapter, except against a person accused of 
coercion as evidence that the statement was made.''.

SEC. 5. DISCRETION OF MILITARY JUDGE TO EXCLUDE HEARSAY EVIDENCE 
              DETERMINED TO BE UNRELIABLE OR LACKING IN PROBATIVE 
              VALUE.

    Section 949a(b)(2)(E)(ii) of title 10, United States Code (as 
enacted by the Military Commissions Act of 2006 (Public Law 109-366)), 
is amended by striking ``if the party opposing the admission of the 
evidence demonstrates that the evidence is unreliable or lacking in 
probative value'' and inserting ``if the military judge determines, 
upon motion by counsel, that the evidence is unreliable or lacking in 
probative value''.

SEC. 6. DISCRETION OF MILITARY JUDGE TO TAKE CERTAIN ACTIONS IN EVENT 
              THAT A SUBSTITUTE FOR CLASSIFIED EXCULPATORY EVIDENCE IS 
              INSUFFICIENT TO PROTECT THE RIGHT OF A DEFENDANT TO A 
              FAIR TRIAL.

    Section 949j(d)(1) of title 10, United States Code (as enacted by 
the Military Commissions Act of 2006 (Public Law 109-366)), is amended 
by adding at the end the following: ``If the military judge determines 
that the substitute is not sufficient to protect the right of the 
defendant to a fair trial, the military judge may--
            ``(A) dismiss the charges in their entirety;
            ``(B) dismiss the charges or specifications or both to 
        which the information relates; or
            ``(C) take such other actions as may be required in the 
        interest of justice.''.

SEC. 7. REVIEW OF MILITARY COMMISSION DECISIONS BY UNITED STATES COURT 
              OF APPEALS FOR THE ARMED FORCES RATHER THAN COURT OF 
              MILITARY COMMISSION REVIEW.

    (a) Review.--
            (1) In general.--Section 950f of title 10, United States 
        Code (as enacted by the Military Commissions Act of 2006 
        (Public Law 109-366)), is amended to read as follows:
``Sec. 950f. Review by Court of Appeals for the Armed Forces
    ``(a) Cases To Be Reviewed.--The United States Court of Appeals for 
the Armed Forces, in accordance with procedures prescribed under 
regulations of the Secretary, shall review the record in each case that 
is referred to the Court by the convening authority under section 950c 
of this title with respect to any matter of law raised by the accused.
    ``(b) Scope of Review.--In a case reviewed by the United States 
Court of Appeals for the Armed Forces under this section, the Court may 
only act with respect to matters of law.''.
            (2) Clerical amendment.--The table of sections at the 
        beginning of subchapter VI of chapter 47A of such title (as so 
        enacted) is amended by striking the item relating to section 
        950f and inserting the following new item:

``950f. Review by Court of Appeals for the Armed Forces.''.
    (b) Conforming Amendments.--
            (1) In general.--Chapter 47A of title 10, United States 
        Code (as so enacted), is further amended as follows:
                    (A) In section 950c(a), by striking ``the Court of 
                Military Commission Review'' and inserting ``the United 
                States Court of Appeals for the Armed Forces''.
                    (B) In section 950d, by striking ``the Court of 
                Military Commission Review'' each place it appears and 
                inserting ``the United States Court of Appeals for the 
                Armed Forces''.
                    (C) In section 950g(a)(2), by striking ``the Court 
                of Military Commission Review'' each place it appears 
                and inserting ``the United States Court of Appeals for 
                the Armed Forces''.
                    (D) In section 950h, by striking ``the Court of 
                Military Commission Review'' each place it appears and 
                inserting ``the United States Court of Appeals for the 
                Armed Forces''.
            (2) Uniform code of military justice.--Section 867a(a) of 
        title 10, United States Code (article 67a(a) of the Uniform 
        Code of Military Justice), is amended by striking ``Decisions'' 
        and inserting ``Except as provided in sections 950d and 950g of 
        this title, decisions''.

SEC. 8. IMPLEMENTATION OF TREATY OBLIGATIONS.

    (a) In General.--Section 6(a) of the Military Commissions Act of 
2006 (Public Law 109-366) is amended--
            (1) in paragraph (2)--
                    (A) in the first sentence, by inserting after 
                ``international character'' the following: ``and 
                preserve the capacity of the United States to prosecute 
                nationals of enemy powers for engaging in acts against 
                members of the United States Armed Forces and United 
                States citizens that have been prosecuted by the United 
                States as war crimes in the past''; and
                    (B) by striking the second sentence; and
            (2) in paragraph (3)--
                    (A) in subparagraph (A)--
                            (i) by striking ``the President has the 
                        authority for the United States to interpret 
                        the meaning and application of the Geneva 
                        Conventions and to promulgate'' and inserting 
                        ``the President has the authority, subject to 
                        congressional oversight and judicial review, to 
                        promulgate''; and
                            (ii) by striking ``higher standards and'';
                    (B) in subparagraph (B), by striking 
                ``interpretations'' and inserting ``rules''; and
                    (C) by amending subparagraph (D) to read as 
                follows:
                    ``(D) The President shall notify other parties to 
                the Geneva Conventions that the United States expects 
                members of the United States Armed Forces and other 
                United States citizens detained in a conflict not of an 
                international character to be treated in a manner 
                consistent with the standards described in subparagraph 
                (A) and embodied in section 2441 of title 18, United 
                States Code, as amended by subsection (b).''.
    (b) Modifications of War Crimes Offenses.--
            (1) Inclusion of denial of trial rights among offenses.--
        Paragraph (1) of section 2441(d) of title 18, United States 
        Code (as enacted by the Military Commissions Act of 2006), is 
        amended by adding at the end the following new subparagraph:
                    ``(J) Denial of trial rights.--The act of a person 
                who intentionally denies one or more persons the right 
                to be tried before a regularly constituted court 
                affording all the judicial guarantees which are 
                recognized as indispensable by civilized peoples as 
                prescribed by common Article 3 of the Geneva 
                Conventions.''.
            (2) Definition of serious physical pain or suffering.--
        Clause (ii) of subparagraph ((D) of paragraph (2) of such 
        section (as so enacted) is amended to read as follows:
                            ``(ii) serious physical pain;''.

SEC. 9. RESTORATION OF HABEAS CORPUS FOR INDIVIDUALS DETAINED BY THE 
              UNITED STATES.

    (a) Restoration.--Subsection (e) of section 2241 of title 28, 
United States Code, as amended by section 7(a) of the Military 
Commissions Act of 2006 (Public Law 109-366), is repealed.
    (b) Conforming Amendment.--Subsection (b) of section 7 of the 
Military Commissions Act of 2006 (Public Law 109-366) is repealed.

SEC. 10. EXPEDITED JUDICIAL REVIEW OF MILITARY COMMISSIONS ACT OF 2006.

    Notwithstanding any other provision of law, the following rules 
shall apply to any civil action, including an action for declaratory 
judgment, that challenges any provision of the Military Commissions Act 
of 2006 (Public Law 109-366), or any amendment made by that Act, on the 
ground that such provision or amendment violates the Constitution or 
the laws of the United States:
            (1) The action shall be filed in the United States District 
        Court for the District of Columbia and shall be heard in that 
        Court by a court of three judges convened pursuant to section 
        2284 of title 28, United States Code.
            (2) An interlocutory or final judgment, decree, or order of 
        the United States District Court for the District of Columbia 
        in an action under paragraph (1) shall be reviewable as a 
        matter of right by direct appeal to the Supreme Court of the 
        United States. Any such appeal shall be taken by a notice of 
        appeal filed within 10 days after the date on which such 
        judgment, decree, or order is entered. The jurisdictional 
        statement with respect to any such appeal shall be filed within 
        30 days after the date on which such judgment, decree, or order 
        is entered.
            (3) It shall be the duty of the United States District 
        Court for the District of Columbia and the Supreme Court of the 
        United States to advance on the docket and to expedite to the 
        greatest possible extent the disposition of any action or 
        appeal, respectively, brought under this section.

SEC. 11. EFFECTIVE DATE.

    The amendments made by this Act shall take effect on October 17, 
2006, the date of the enactment of the Military Commissions Act of 2006 
(Public Law 109-366), immediately after the enactment of that Act and 
shall apply to all cases, without exception, that are pending on or 
after such date.
                                 <all>