II 109th CONGRESS 2d Session S. 4060 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.
1.
Short title
This Act may be cited as the Effective Terrorists Prosecution Act of 2006.
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. .
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).
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. .
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.
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. .
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:
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.
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; .
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.
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.
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.