[Congressional Record Volume 152, Number 87 (Thursday, June 29, 2006)]
[Senate]
[Pages S6796-S6801]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. SPECTER:
  S. 3614. A bill to provide comprehensive procedures for the 
adjudication of cases involving unprivileged combatants; to the 
Committee on Armed Services.
  Mr. SPECTER. Mr. President, I have sought recognition to discuss the 
case of Hamdan v. Rumsfeld which was decided by the Supreme Court of 
the United States today and to address the question as to where we go 
from here. There have already been many inquiries as to what is the 
import of this Supreme Court decision and what are the next steps in 
order to establish a framework to deal with the people who are detained 
at Guantanamo Bay.
  Since the opinions were released this morning, my staff and I have 
been reviewing them: 177 pages, 6 opinions. The essence of the decision 
of the Supreme Court of the United States on a 5-to-3 vote is that the 
President did not have the authority to establish the military 
commissions and that the authority rests with the Congress under the 
Constitution.
  The Court dealt with the issue of the resolution that authorizes the 
use of military force, a resolution which the administration has sought 
as authority for amending the Foreign Intelligence Surveillance Act, 
and when the Court dealt with the resolution authorizing the use of 
military force, the Court said that it did not give the President the 
authority to establish the military commissions. The Court did not deal 
with any issue of inherent authority. But the decision that the 
President lacked the authority to establish the military commissions 
makes it obvious that the conclusion of the Supreme Court is that there 
is no inherent authority, an inference and a proposition which may have 
some weight as we consider collateral matters, for example, on the 
electronic surveillance under NSA.
  The Constitution of the United States is explicit in article I, 
section 8, which states, and I am leaving out some of the irrelevant 
language: Congress has the authority ``to make rules concerning 
captures on land and water.'' So it is a congressional matter.
  In reaching its conclusion, the Supreme Court of the United States 
found that the military commissions violated the Code of Military 
Justice and also violated the terms of the Geneva Convention. The Court 
found that the military commissions violated the Code of Military 
Justice because they did not provide for very basic due process 
considerations. The Court said that the military commissions violated 
the Geneva Convention, which the Court found applicable, reversing the 
Court of Appeals for the District of Columbia where the Supreme Court 
said: The Geneva Convention, common article 3, plainly affords some 
minimal protection to individuals, associated with a signatory or even 
a nonsignatory, who are involved in a conflict.
  The Court dealt with the issue of jurisdiction by saying the 
Government contention that the Supreme Court had no jurisdiction was 
wrong. The Supreme Court referred to a provision of the Detainee 
Treatment Act of 2005, which provides:

       No court shall have jurisdiction to hear or consider an 
     application for habeas corpus filed by an alien detained at 
     Guantanamo Bay. . . .

  There was a reference to the statutory provision which gave exclusive 
jurisdiction, according to the statute, to the District of Columbia 
court.
  The statute provided specifically:

        . . . the United States Court of Appeals for the District 
     of Columbia Circuit shall have exclusive jurisdiction to 
     determine the validity of any final decision of a Combatant 
     Status Review Tribunal which determines that an alien is 
     properly detained as an enemy combatant.

  I argued as forcefully as I could when that amendment was considered, 
that it was really atrocious--without any hearings, without any 
extended floor debate, and I had 2 minutes to speak under the rules 
governing the amendment--that we would be taking away jurisdiction of 
the Federal courts except for the District of Columbia. On its face, 
that language would say that the Supreme Court of the United States had 
no jurisdiction.
  The Supreme Court made short shrift of that point, saying that it did 
have jurisdiction. When you deal with a constitutional issue, it is 
hard for this lawyer to understand how you can take away jurisdiction 
from the Supreme Court of the United States. How can you do that, when 
we know since Marbury v. Madison in 1803 that the Supreme Court of the 
United States is final arbiter of the Constitution? But this language, 
this clumsy language sought to vest exclusive jurisdiction in the Court 
of Appeals for the District of Columbia. The Supreme Court made short 
shrift of that.
  On a personal note, and relevant to this consideration as well, in 
Justice Scalia's dissent he cites my floor argument in a footnote 
saying, at page 12 of his opinion:

       An earlier part of the amendment provides that no court, 
     justice or judge shall have jurisdiction to consider the 
     application for writ of habeas corpus. . . .Under the 
     language of exclusive jurisdiction in the D.C. Circuit, the 
     U.S. Supreme Court would not have jurisdiction to hear the 
     Hamdan case. . . . Id., at [Senate Congressional Record] 
     S12796 (statement of Sen[ator] Specter).

  Interesting that Justice Scalia, who doesn't believe in congressional 
intent or congressional deliberation, would make that citation. But 
when I made the point that the statute, on its face, took away 
jurisdiction from the Supreme Court of the United States, I made it 
plain that I did not think it had any validity. A statute can not do 
that.
  What the statute was trying to do, in part, was to look to a 
favorable court. The DC Circuit was a favorable court--they engaged in 
a little court shopping--and there was an effort to take away the 
jurisdiction of the district court from habeas corpus proceedings.
  Under the logic of Hamdan, where you have a statutory provision that 
the DC Circuit has sole jurisdiction and the Supreme Court interprets 
that as not taking away jurisdiction of the Supreme Court, 
inferentially the same conclusion would follow for the district court.
  It doesn't say the district court does not have jurisdiction, just 
like it does not say the Supreme Court does not have jurisdiction. It 
just says exclusive jurisdiction is in the DC circuit. It is a little 
hard to see how that would work out if you filed a petition for a writ 
of habeas corpus in the DC Circuit. That

[[Page S6797]]

would be anomalous. Those petitions are filed in the district court.
  In any case, the Supreme Court claimed jurisdiction over the case and 
found that the procedures which the administration has prescribed do 
not comport with law.
  The Judiciary Committee held a hearing on Guantanamo and made a field 
trip there. A number of us, including myself, went to take a look at 
Guantanamo, to see it firsthand and to question people there. I had 
gone there with the expectation of having a field hearing there. I 
wanted to hear from the officials at Guantanamo. When I got to 
Guantanamo, after the flight in, I was told there would be no field 
hearing--which was a disappointment, and really contrary to what I had 
understood the arrangement to be. But we held a hearing and devoted a 
considerable amount of work to the issue. Knowing, or thinking that, 
the administration's military commissions would be struck down because 
they did so little and had no real relationship to due process, we 
prepared legislation.

  I had it put in final form last week when we considered the 
Department of Defense authorization bill, and one Senator did talk 
about legislation. I considered offering it at that time but decided 
that it was not a good time to do so. But we have it ready to go, ready 
for introduction.
  Senator Durbin and I introduced a bill to handle the Guantanamo 
detainees on February 13, 2002. The issue was not picked up again until 
the Judiciary Committee held hearings last June, and this bill, which I 
am introducing today, I believe, will satisfy the requirements of the 
Supreme Court of the United States.
  This bill provides for two divisions. One is for the people who are 
charged with specific offenses. We retain the description of a military 
commission. We provide that there would be three officers on the 
commission, one president--a presiding judge from the Judge Advocate 
General's Office. Also an attorney will be provided for the accused, 
there will be competent evidence, there will be cross-examination and a 
unanimous verdict.
  In the event of the use of classified information, we prescribe that 
the provisions of the Confidential Information Protection Act would 
govern, which is a statute which has been used in our courts for many 
years, which authorizes the presiding judge to sift through the 
information and make available to the defense whatever is appropriate 
and not classified. And if it is classified, then to make it available 
at the discretion of the judge to the attorney.
  The attorney for the accused would be cleared through regular 
channels to deal with classified information so that we would be 
protecting the classified information by having it viewed only by 
someone authorized to take a look at it, so that the defense lawyer 
would be able to use it in the defense of his client. That is not a 
perfect situation, but that is the way we have dealt with confidential 
information under the so-called Confidential Information Protection 
Act.
  In our legislation, we also deal with the enemy combatants. These are 
the individuals who have been detained at Guantanamo under an 
arrangement where there is no limit as to the length of their 
detention. That has caused considerable angst, considerable objection. 
But it is a very difficult matter. When we are in a war, fighting 
terrorists--and we should never lose our focus that we are in that war 
and that there are continuing dangers and we have to protect 
Americans--until somebody has a better idea, they are going to be 
detained. Some have been released and some of those released have been 
found on the battlefields killing Americans, so the detention of enemy 
combatants is an ongoing issue.
  Our legislation provides that there would be a classification 
tribunal so that there would be a review of their status, to make a 
determination on a periodic basis that they continue to be a threat to 
the United States, either on the continent or because they will go back 
and fight a war. We provide for an attorney, again, an attorney who 
would be cleared to view classified information.
  The issue of evidence is much more difficult because these enemy 
combatants are frequently taken into custody in a battlefield situation 
where competent evidence is not present, so we allow for hearsay.
  In the Supreme Court opinion, if there is a showing of necessity, 
there is leeway granted in terms of defining sufficient due process. 
The Supreme Court found, for example, that the President had 
demonstrated sufficiently that there could not be trials in the U.S. 
Federal district courts, so ruling that out was fine. It was 
acceptable. And leeway, too, for some deviation from all of the 
generalized rules might be acceptable. The Supreme Court really didn't 
reach the issue of granting leeway because they didn't have a specific 
situation, but there would have to be a showing of necessity, a showing 
that no other system would work.
  So in dealing with the enemy combatants, we are still struggling with 
how to handle the issue of indefinite detention, recognizing that they 
continue to be a threat.
  The legislation which I am introducing today has received 
considerable thought and considerable analysis. As I say, it picks up 
on legislation which Senator Durbin and I introduced on February 13, 
2002. But it still requires a great deal more analysis and a great deal 
more thought, which we will give it in due course on the legislative 
process. We have altered our schedule in the Judiciary Committee to 
reserve July 11 for a hearing, the second day we are back--on that 
Tuesday we really swing into action--we will take up an analysis of 
Hamdan v. Rumsfeld in greater detail than we could do this afternoon in 
a short floor statement and with only a few hours to digest the 6 
opinions and 177 pages. We will consider this legislation at that time.
  I ask unanimous consent that the full text of the bill be printed in 
the Congressional Record at the conclusion of my comments, and a short 
summary of the bill, which will enable the reader to follow without 
going through the extended text.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3614

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

     SECTION 1. SHORT TITLE; AUTHORITY; FINDINGS.

       (a) Short Title.--This Act may be cited as the 
     ``Unprivileged Combatant Act of 2006''.
       (b) Authority.--The requirements, conditions, and 
     restrictions established by this Act are made under the 
     authority of Congress under clauses 1, 10, 11, 12, 13, 14, 
     and 18 of article I, section 8 of the Constitution of the 
     United States.
       (c) Findings.--Congress finds the following:
       (1) Article I, section 8, of the Constitution provides that 
     the Congress has the power to ``constitute Tribunals inferior 
     to the Supreme Court; ... define and punish ... Offenses 
     against the Law of Nations; ... make Rules concerning 
     Captures on Land and Water; ... make all Laws which shall be 
     necessary and proper for carrying into Execution the 
     foregoing Powers and all other Powers vested by this 
     Constitution in the Government of the United States, or in 
     any Department or Officer thereof''.
       (2) The Supreme Court has repeatedly recognized military 
     tribunals, as stated in Madsen v. Kinsella 343 U.S. 341, 
     1952, ``[s]ince our nation's earliest days, such tribunals 
     have been constitutionally recognized agencies for meeting 
     many urgent governmental responsibilities related to 
     war....They have taken many forms and borne many names. 
     Neither their procedure nor their jurisdiction has been 
     prescribed by statute. It has been adapted in each instance 
     to the need that called it forth.'' Madsen, citing In re 
     Yamashita, 327 U.S. 1 (1946).
       (3) The President has inherent authority to convene 
     military tribunals arising from his role as Commander and 
     Chief of the Armed Forces under article II of the 
     Constitution and from title 10 of the United States Code. Due 
     to the extraordinary circumstances of the ongoing war on 
     terrorism, it is appropriate for Congress to provide 
     additional and explicit authorization of and procedures for 
     military tribunals to adjudicate and punish offenses relating 
     to the war on terrorism.
       (4) This Act is in direct response to the United State 
     Supreme Court's ruling in Rasul v. Bush. With the passage of 
     this Act, the 109th Congress will have addressed the concerns 
     of the Supreme Court's Rasul majority, and therefore alien 
     enemy combatants detained or prosecuted under this Act may 
     not challenge their detentions in the Federal courts of the 
     United States via the habeas or any other statute.

     SEC. 2. DEFINITIONS.

       As used in this Act, the following definitions apply:
       (1) Classification tribunal.--The term ``classification 
     tribunal'' means any tribunal conducted under section 9 or 
     any related proceeding.
       (2) Classification tribunal board.--The term 
     ``classification tribunal board'' means a board established 
     pursuant to section 9(d).

[[Page S6798]]

       (3) Classified information.--The term ``classified 
     information'' has the meaning given that term in section 1(a) 
     of the Classified Information Procedures Act (18 U.S.C. 
     App.).
       (4) Commission.--The term ``commission'' means a military 
     commission established pursuant to section 3.
       (5) Criminal prosecution.--The term ``criminal 
     prosecution'' means a prosecution for a violation of any 
     criminal law, including subchapter X of chapter 47 of title 
     10, United States Code (the Uniform Code of Military Justice) 
     or pursuant to the Department of Defenses Military Commission 
     Instruction number two.
       (6) Detainee.--The term ``detainee'' means a person who is 
     in the custody of the Department of Defense at Guantanamo 
     Bay, Cuba, and who has not been charged with a criminal 
     offense during that period.
       (7) International terrorism.--The term ``international 
     terrorism'' has the meaning given that term in section 101 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801).
       (8) Judge.--The term ``judge'' means a United States 
     military judge designated by the Secretary of Defense to hear 
     cases under this Act.
       (9) Protected information.--The term ``protected 
     information'' means information--
       (A) that is classified information;
       (B) protected by law or rule from unauthorized disclosure;
       (C) the disclosure of which may endanger the physical 
     safety of participants in Commission proceedings, including 
     prospective witnesses;
       (D) concerning intelligence and law enforcement sources, 
     methods, or activities; or
       (E) the disclosure of which would otherwise jeopardize 
     national security interests.
       (10) United states person.--The term ``United States 
     person'' has the meaning given that term in section 101 of 
     the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 
     1801).
       (11) Unprivileged combatant.--The term ``unprivileged 
     combatant'' means an individual--
       (A) who has been designated as an enemy combatant by a 
     Combatant Status Review Tribunal prior to the enactment of 
     this Act; or
       (B) who a Field Tribunal conducted by the United States 
     military as provided in this Act determines--
       (i) is not entitled to the protections set out in the 
     Convention Relative to the Treatment of Prisoners of War, 
     done at Geneva, August 12, 1948 (6 UST 3516) (referred to in 
     this Act as the ``Geneva Convention''); and
       (ii) has--

       (I) knowingly assisted, conspired with, or solicited for a 
     group or an individual hostile to the United States;
       (II) knowingly attempted to assist others in taking up arms 
     against the United States;
       (III) conspired with or solicited others to take up arms 
     against the United States; or
       (IV) has taken up arms against, or intentionally assisted 
     combat operations against, the United States.

       (12) Appropriate committees of congress.--The term 
     ``appropriate committees of Congress'' means the Committee on 
     the Judiciary and the Committee on Armed Services of the 
     Senate and the Committee on the Judiciary and the Committee 
     on Armed Services of the House of Representatives.

     SEC. 3. AUTHORIZING MILITARY COMMISSIONS.

       The President is authorized to establish military 
     commissions for the trial of individuals for offenses as 
     provided in this Act.

     SEC. 4. JURISDICTION.

       (a) Unprivileged Combatants.--This Act establishes 
     exclusive jurisdiction to hear any matter involving an 
     unprivileged combatant who has been detained by the 
     Department of Defense for not less than 180 consecutive days 
     at Guantanamo Bay, Cuba.
       (b) Offenses.--
       (1) Criminal prosecutions.--A commission shall have 
     jurisdiction to hear any criminal prosecution involving 
     international terrorism, including any offense under chapter 
     113B of title 18, United States Code.
       (2) Offenses against the laws of war.--A commission shall 
     have exclusive jurisdiction over violations of the laws of 
     war committed by unprivileged combatants.
       (3) Other offenses.--A commission shall have jurisdiction 
     over other offenses traditionally triable by military 
     commissions or pursuant to the Department of Defense's 
     Military Commission Instruction Number Two.

     SEC. 5. APPELLATE JURISDICTION.

       (a) Final Decisions.--The United States Court of Military 
     Appeals shall have exclusive jurisdiction of appeals from all 
     final decisions of a classification tribunal board or 
     commission under this Act.
       (b) Review by Supreme Court.--
       (1) Certiorari.--The decisions of the United States Court 
     of Military Appeals are subject to review by the Supreme 
     Court by writ of certiorari.
       (2) Exemption from certain petition requirements.--A person 
     who files a petition for a writ of certiorari under paragraph 
     (1) shall not be required to submit--
       (A) prepayment of any fees and costs or security therefor; 
     or
       (B) the affidavit required by section 1915(a) of title 28, 
     United States Code.
       (c) Conforming Amendments.--
       (1) In general.--Section 1005 of the Detainee Treatment Act 
     of 2005 (10 U.S.C. 801 note) is amended--
       (A) in subsection (e), by striking paragraphs (2) through 
     (4); and
       (B) by striking subsection (h) and inserting the following:
       ``(h) Effective Date.--This section shall take effect on 
     the date of enactment of this Act.''.
       (2) Habeas.--Section 2241(e) of title 28, United States 
     Code, is amended--
       (A) in the matter preceding paragraph (1), by striking 
     ``section 1005 of the Detainee Treatment Act of 2005'' and 
     inserting ``the Unprivileged Combatant Act of 2006'';
       (B) by striking paragraph (2)(B) and inserting the 
     following:
       ``(B) has been determined by a classification tribunal to 
     meet the requirements of paragraph (1) or (2) of section 9(a) 
     of the Unprivileged Combatant Act of 2006.''.

     SEC. 6. COMMISSION.

       (a) Commission Personnel.--
       (1) Members.--
       (A) Appointment.--The Secretary of Defense shall designate 
     no less than 12 United States military judges to serve as 
     members of a commission and to assume other duties assigned 
     in this Act.
       (B) Number of members.--Each commission shall consist of at 
     least 3 military officers, at least one of whom shall be a 
     military judge.
       (C) Alternate members.--For each such commission, there 
     shall also be 1 or 2 alternate members. The alternate member 
     or members shall attend all sessions of the commission. In 
     case of incapacity, resignation, or removal of any member, an 
     alternate member shall take the place of that member.
       (D) Qualifications.--Each member and alternate member of 
     the commission shall be a military officer.
       (E) Presiding officer.--
       (i) In general.--From among the members of the commission, 
     the Secretary of Defense shall designate a presiding officer 
     who is a military judge to preside over the proceedings of 
     that commission.
       (ii) Duties.--The duties of the presiding officer shall be 
     as follows:

       (I) The presiding officer shall admit or exclude evidence 
     at trial in accordance with the rules of this Act. The 
     presiding officer shall have authority to close proceedings 
     or portions of proceedings in accordance with this Act or for 
     any other reason necessary for the conduct of a full and fair 
     trial.
       (II) The presiding officer shall ensure that the 
     discipline, dignity, and decorum of the proceedings are 
     maintained, shall exercise control over the proceedings to 
     ensure proper implementation of the President's Military 
     Order and this Act, and shall have authority to act upon any 
     contempt or breach of commission rules and procedures. Any 
     attorney authorized to appear before a commission who is 
     thereafter found not to satisfy the requirements for 
     eligibility or who fails to comply with laws, rules, 
     regulations, or other orders applicable to the commission 
     proceedings or any other individual who violates such laws, 
     rules, regulations, or orders may be disciplined as the 
     presiding officer deems appropriate, including revocation of 
     eligibility to appear before that commission. The Court may 
     further revoke that attorney's or any other person's 
     eligibility to appear before any other commission convened 
     under this Act.
       (III) The presiding officer shall ensure the expeditious 
     conduct of the trial. In no circumstance shall accommodation 
     of counsel be allowed to delay proceedings unreasonably.
       (IV) The presiding officer may certify interlocutory 
     questions to the Military Commission Review Panel for the 
     Armed Forces as the presiding officer deems appropriate.

       (b) Powers of a Commission.--A commission shall have the 
     following powers:
       (1) To summon witnesses to the trial and to require their 
     attendance and testimony and to put questions to them.
       (2) To require the production of documents and other 
     evidentiary material.
       (3) To administer oaths to witnesses.
       (4) To appoint officers for the carrying out of any task 
     designated by the commission, including the power to have 
     evidence taken.

     SEC. 7. PERSONS IN CUSTODY.

       (a) In General.--Not later than 60 days after the date of 
     enactment of this Act, the Secretary of Defense shall 
     develop--
       (1) a complete listing of all persons who--
       (A) are being detained by the Department of Defense at 
     Guantanamo Bay, Cuba; and
       (B) the Government wishes to continue to detain as an 
     unprivileged combatant; and
       (2) a detailed summary of the evidence upon which the 
     determination to keep a person described in paragraph (1) in 
     custody was made.
       (b) Congressional Oversight.--Not later than 10 days after 
     developing the list described in subsection (a), the 
     Secretary of Defense shall submit an unclassified version of 
     that list to the appropriate committees of Congress. A 
     classified, unredacted version of that list shall also be 
     submitted to the appropriate committees of Congress for 
     review.
       (c) Updated List.--
       (1) In general.--Not less than once every 60 days after the 
     date the list described in subsection (a) is completed, the 
     Secretary of Defense shall update the list of the persons 
     described in subsection (a) and submit to the appropriate 
     committees of Congress a detailed report for each person on 
     such list that includes--

[[Page S6799]]

       (A) the name and nationality of each such person; and
       (B) with respect to each such person--
       (i) a detailed statement of why such person has not been 
     charged, repatriated, or released;
       (ii) a statement of when the United States intends to 
     charge, repatriate, or release such person;
       (iii) a description of the procedures to be employed by the 
     United States to determine whether to charge, repatriate, or 
     release such person and a schedule for the employment of such 
     procedures; and
       (iv) if the Secretary of Defense has transferred or has 
     plans to transfer such person from the custody of the 
     Secretary to another agency or department of the United 
     States, a description of such transfer.
       (2) Form of reports.--Each report required by this 
     subsection shall be submitted in an unclassified form, to the 
     maximum extent practicable, and may include a classified 
     annex, if necessary.
       (3) Appropriate committees of congress defined.--In this 
     subsection, the term ``appropriate committees of Congress'' 
     means--
       (A) the Committee on Armed Services, the Committee on the 
     Judiciary, and the Select Committee on Intelligence of the 
     Senate; and
       (B) the Committee on Armed Services, the Committee on the 
     Judiciary, and the Permanent Select Committee on Intelligence 
     of the House of Representatives.
       (d) Congressional Oversight.--Not later than 10 days after 
     updating the list of persons under subsection (c), the 
     Secretary of Defense shall submit that updated list to the 
     appropriate committees of Congress in both unclassified and 
     unredacted, classified form.

     SEC. 8. FIELD TRIBUNALS.

       (a) In General.--Not more than 30 days after a suspected 
     unprivileged combatant has been detained by United States 
     forces, the Department of Defense shall conduct a field 
     tribunal in order to determine whether the detainee is an 
     unprivileged combatant and whether the detainee is entitled 
     to the rights afforded under the Geneva Convention.
       (b) Procedures.--The procedures governing a field tribunal 
     shall be promulgated by the Department of Defense

     SEC. 9. CLASSIFICATION TRIBUNALS.

       (a) In General.--A detainee shall be released and 
     repatriated to an appropriate country unless a classification 
     tribunal board finds by a preponderance of the evidence 
     that--
       (1) the detainee is a threat to the national security 
     interest of the United States; or
       (2) there are reasonable grounds to believe that if 
     released the detainee would take up arms against the United 
     States.
       (b) Compliance With Geneva Conventions.--If a detainee is 
     found to be a privileged combatant entitled to provisions 
     under the Convention Relative to the Treatment of Prisoners 
     of War, done at Geneva, August 12, 1948 (6 UST 3516), then 
     the detainee must be treated in accordance with that 
     convention.
       (c) Citizen of the United States.--If a detainee is found 
     to be a citizen of the United States of America, the detainee 
     shall not be held or tried under this Act.
       (d) Classification Tribunal Board.--A classification 
     tribunal shall be conducted by a board appointed by the 
     Secretary of Defense and consist solely of line officers, one 
     of whom shall be an attorney.
       (e) Determination.--
       (1) In general.--If a classification tribunal board finds 
     that a detainee meets the requirements of subsection (a), the 
     classification tribunal board shall order that the detainee 
     shall continue to be detained by the Department of Defense, 
     subject to periodic review under subsection (h).
       (2) Time period.--The time period for the detention of a 
     detainee under paragraph (1) may not exceed the time period 
     that United States forces are engaged in combat operations as 
     defined by the Department of Defense in the nation or theater 
     where the detainee was captured so long as the detainee is 
     found to be a privileged combatant.
       (3) Conclusion of combat.--At the conclusion of combat 
     operations within a given theater or nation--
       (A) a privileged combatant that was captured in that area 
     shall be either indicted under this Act or repatriated to the 
     appropriate country; and
       (B) an unprivileged combatant may continue to be detained 
     pursuant to subsection (a).
       (f) Considerations.--
       (1) In general.--In making a determination under subsection 
     (a), a classification tribunal board shall consider any 
     information brought to its attention regarding the need for 
     continued detention, including--
       (A) the detainee's alleged position or rank in any hostile 
     organization;
       (B) the activities of that hostile organization;
       (C) any statements made by the detainee in response to 
     interrogation; and
       (D) the detainee's history of violence or terrorist 
     activity.
       (2) Prima facie evidence.--If the Government represents 
     that a detainee was captured during a military engagement 
     while taking up arms against, or supporting military 
     operations against, the Armed Forces of the United States or 
     its allies, there shall be prima facie evidence that, if 
     released, the detainee would take up arms against the United 
     States.
       (g) Timing.--A detainee shall be afforded a classification 
     tribunal as soon as is reasonably practicable but not later 
     than 180 days after the detainee's capture and not later than 
     30 days after the detainee is listed under section 7, unless 
     continued.
       (h) Periodic Review.--
       (1) In general.--
       (A) Semiannual review.--The classification tribunal shall 
     conduct a classification hearing for each detainee not less 
     frequently than every 180 days, in accordance with the 
     procedures established under this section and section 10.
       (B) Action period.--A detainee apprehended during a 
     military engagement while taking up arms against, or 
     supporting military operations against, the Armed Forces of 
     the United States or its allies may be detained until the 
     cessation of armed hostilities in the nation or region in 
     which they were captured.
       (2) Argument.--The Government and the detainee may be heard 
     regarding the review under paragraph (1).

     SEC. 10. CLASSIFICATION TRIBUNAL PROCEDURES.

       (a) Detainees.--
       (1) In general.--A detainee shall not be required to 
     testify or present any evidence at a classification tribunal.
       (2) Presence.--A detainee shall be entitled to be present 
     at the classification tribunal, unless the head of the 
     tribunal has decided to admit classified information.
       (b) Counsel.--
       (1) In general.--A detainee is entitled to the assistance 
     of counsel admitted to practice under this Act at every stage 
     of the classification tribunal, including the periodic review 
     of orders under subsection (e).
       (2) Right to appointed counsel.--A detainee who is unable 
     to obtain counsel is entitled to have counsel admitted to 
     practice before a commission under this Act.
       (3) Refusal of counsel.--A detainee may waive counsel but 
     shall not be entitled to protected information.
       (c) Discovery.--
       (1) Government's disclosure.--Not later than 3 days prior 
     to the classification tribunal, the Government shall make 
     available for inspection by counsel for the detainee any 
     affidavit or affirmation the Government intends to offer in 
     support of continuing to detain the detainee. A 
     classification tribunal board shall maintain a copy of any 
     submissions made by the Government for inspection by the 
     detainee and for transmittal, if necessary, to that tribunal.
       (2) Detainee's disclosure.--If the detainee chooses to 
     submit any evidence, such evidence, including a list of any 
     witnesses the detainee intends to call, shall be made 
     available to the Government for inspection not later than 3 
     days prior to the classification tribunal.
       (d) Evidence.--
       (1) In general.--The Federal Rules of Evidence shall not 
     apply to a classification tribunal.
       (2) Admissibility standard.--Evidence shall be admitted if 
     the classification tribunal board determines the evidence 
     would have probative value to a reasonable person.
       (3) Affidavit or affirmation.--The Government may proceed 
     by proffer and submit any relevant information by affidavit 
     or affirmation, unless decided unreliable by the members of 
     the classification tribunal board.
       (4) Cross-examination.--
       (A) Government witnesses.--If a Government chooses to call 
     witnesses, the detainee may cross-examine those witnesses on 
     all relevant facts.
       (B) Detainee witnesses.--If a detainee calls any witnesses, 
     they shall be subject to cross examination.
       (C) Detainee.--If the detainee chooses to testify, the 
     detainee shall be subject to cross-examination.
       (e) Defenses.--A detainee may challenge whether the 
     detainee satisfies the elements required under subsection 
     (a).
       (f) Proceedings.--
       (1) In general.--A classification tribunal shall be closed 
     to the public.
       (2) Security clearances.--Each person present at a 
     classification tribunal, other than the detainee, shall 
     possess a security clearance appropriate to the level of any 
     classified information being presented.
       (3) Public information regarding proceedings.--After the 
     classification tribunal board rules in the classification 
     tribunal, the parties shall propose a nonclassified summary 
     to that board. The board shall publicly release a summary, 
     containing any information generated at the tribunal which 
     can be disclosed in a manner consistent with the Classified 
     Information Procedures Act (18 U.S.C. App.) and the national 
     security of the United States.
       (g) Reinstituting Classification Proceedings.--
       (1) In general.--If a matter involving the classification 
     tribunal of a detainee is dismissed without prejudice by the 
     classification tribunal or withdrawn by the Government at, or 
     prior to, the classification tribunal, the Government may 
     reinstitute the matter with the tribunal board that dismissed 
     or permitted the withdrawal of the matter.
       (2) Time limit.--A complaint reinstituting proceedings 
     under paragraph (1) shall be filed not later than 10 days 
     after the dismissal or withdrawal of the matter.
       (3) Number.--The Government may reinstitute proceedings 
     under paragraph (1) not more than twice and only if approved 
     by the ranking member on the classification tribunal board.

[[Page S6800]]

     SEC. 11. CONTINUANCE OF CLASSIFICATION TRIBUNALS.

       (a) Continuances.--
       (1) In general.--A classification tribunal board may, for 
     cause shown, grant a continuance of a classification 
     tribunal.
       (2) Continuance.--
       (A) In general.--Upon motion of the Government, the 
     classification tribunal board may grant a continuance for as 
     long as necessary, but no longer than a 6-month period, under 
     paragraph (1) if the classification tribunal board determines 
     that the detainee is a high level individual in the planning 
     or financing of terrorist activities or the individual 
     possess information vital to the safety of the United States 
     or its citizens.
       (B) Subsequent continuances.--The Government may obtain 
     subsequent continuances for additional 6-month periods so 
     long as the classification tribunal board finds such 
     continuances are necessary to the informational gathering 
     purposes as it related to the national security of the United 
     States.
       (3) Ex parte applications.--
       (A) In general.--The Government may move for a continuance 
     under paragraph (1) ex parte.
       (B) Detainee rights.--A detainee--
       (i) is not entitled to representation by counsel in 
     connection with any such ex parte motion; and
       (ii) shall not be given notice of the request for a hearing 
     prior to the ruling of the classification tribunal board on 
     the Government's request for a continuance pursuant to 
     paragraph (2).
       (b) Grant of Continuance.--For each continuance granted 
     under subsection (a), the classification tribunal board shall 
     note on the record of the proceedings--
       (1) the grounds for granting each such continuance;
       (2) the identity of the party requesting the continuance;
       (3) the new date and time for the tribunal hearing; and
       (4) the reasons that the date under paragraph (3) was 
     chosen.

     SEC. 12. CRIMINAL PROSECUTION PROCEDURES GENERALLY.

       (a) Counsel.--
       (1) In general.--A defendant in a criminal proceeding under 
     this Act has a right to be represented by counsel admitted to 
     practice before a commission under this Act.
       (2) Appointed counsel.--
       (A) In general.--A defendant who is unable to obtain 
     counsel is entitled to have counsel appointed and to be 
     represented by such counsel at every stage of the proceeding 
     subsequent to being indicted.
       (B) Appointment procedure.--The Secretary of Defense shall 
     determine the rules for appointing counsel to practice before 
     the commission.
       (b) Discovery.--
       (1) Classified documents and objects.--The Government shall 
     provide the defense with access to evidence the Government 
     intends to introduce at trial and with access to evidence 
     known to the Government or which should be known to the 
     Government that tends to exculpate the accused. Information 
     disclosed to the defense may not be disclosed to the 
     defendant if it is classified as defined by this Act. The 
     defense may submit classified information for review under 
     section 12(b)(2).
       (2) Separate commission concerning classified 
     information.--The Secretary of Defense shall appoint a 
     commission to conduct a thorough review of the classification 
     system for national security information, including the 
     policy, procedures, and practices of the system. The 
     Secretary of Defense shall determine what level of security 
     clearance is necessary to conduct the review under this 
     paragraph. No person shall be appointed as a member of the 
     commission who does not have a security clearance at or above 
     the level of clearance so designated by the Secretary. The 
     commission shall make recommendations to the Secretary of 
     Defense as to the declassification of information relevant to 
     the trial of detainees.
       (3) Regulating discovery.--
       (A) In general.--A commission may, for good cause, deny, 
     restrict, or defer discovery or inspection, or grant other 
     appropriate relief.
       (B) Ex parte request.--A party may make an ex parte request 
     in writing that a commission deny, restrict, or defer 
     discovery or inspection under subparagraph (A). If the a 
     commission grants a request under this subparagraph, the 
     Commission shall preserve the entire text of the party's 
     request under seal.
       (C) Failure to comply.--If a party fails to comply with the 
     rules of discovery applicable to a commission, the commission 
     may--
       (i) order that party to permit the discovery or inspection, 
     specify its time, place, and manner, and prescribe other just 
     terms and conditions; or
       (ii) grant a continuance.
       (c) Open Proceedings.--
       (1) In general.--Except as provided in paragraphs (2) and 
     (3), a proceeding before a commission shall be open to the 
     public.
       (2) Classified information.--
       (A) In general.--Upon motion by the Government, a 
     proceeding before a commission shall be closed to the public 
     if necessary to avoid disclosure of classified information.
       (B) Nondisclosure.--A priority under subparagraph (A) shall 
     not disclose any information presented during a closed 
     session to individuals excluded from such proceeding or part 
     thereof including the defendant.
       (3) Other bases.--A commission may order that a hearing be 
     held, in whole or in part, in camera, if the commission 
     determines--
       (A) it is appropriate for the security of a witness or a 
     Government employee or to protect public safety; or
       (B) that an open hearing would deter a witness from 
     testifying freely or prevent the witness from testifying at 
     all.
       (4) Extrajudicial statements.--At the discretion of a 
     commission, the commission may issue an order limiting 
     extrajudicial statements by the parties.
       (d) Protected Information.--
       (1) In general.--A commission may issue protective orders 
     as necessary to safeguard protected information in a 
     proceeding before that commission.
       (2) Notification.--As soon as practicable, a party shall 
     notify a commission of any intent to offer evidence including 
     protected information .
       (3) Trial record.--
       (A) In general.--All exhibits admitted as evidence but 
     containing protected information shall be sealed and annexed 
     to the record of trial.
       (B) Protected information not admitted.--Any protected 
     information not admitted as evidence, but reviewed by a 
     commission in camera and withheld from the defendant's 
     counsel over objection shall be sealed and annexed to the 
     record of the trial, with any associated motions and 
     responses and any materials submitted in support thereof, as 
     additional exhibits.
       (e) Record of Trial.--
       (1) Requirement for record.--A record of each proceeding by 
     a commission shall be prepared promptly after the conclusion 
     of the trial.
       (2) Verbatim transcript.--The record of trial shall include 
     a verbatim written transcript of all sessions of the trial.
       (3) Exhibits and other evidence.--The record of trial shall 
     also include all exhibits and other real or demonstrative 
     evidence, except that photographs may be substituted for any 
     large written or graphic exhibits and any other real or 
     demonstrative evidence. If a photograph is substituted for an 
     exhibit or other evidence, the Government shall retain the 
     original exhibit or other evidence, respectively, until no 
     further appeal of the results of the trial is authorized.
       (4) Classified information.--In the case of a conviction of 
     a charge on which classified information is admitted as 
     evidence by a commission, the copy of the record of trial 
     submitted to the commission shall include the classified 
     information.

     SEC. 13. TRIAL PROCEDURES FOR UNPRIVILEGED COMBATANTS.

       (a) Specialized Procedures.--
       (1) Standard of proof.--All 3 members of a commission shall 
     agree that the defendant is guilty beyond a reasonable doubt 
     for a defendant to be found guilty.
       (2) Rules of procedure.--
       (A) In general.--Except as provided in subparagraph (B), 
     the Secretary of Defense shall draft supplementary rules to 
     govern all proceedings under this section.
       (B) Standard.--Evidence is admissible if the Secretary of 
     Defense determines that the evidence would have probative 
     value to a reasonable person.
       (3) Form of trial.--Any trial under this subsection shall 
     take place before 2 military officers or attorneys and at 
     least one military judge.
       (4) Bad acts.--Other bad acts may be considered if they 
     would have fallen within the definition under this Act of 
     either terrorism or terrorist activity and they are deemed to 
     be relevant by a commission including propensity.
       (b) Custody.--The Department of Defense shall retain 
     custody of any person determined by a commission to be 
     unprivileged combatants after the person has been either 
     convicted or sentenced in accordance with this Act, unless 
     the Department of Defense deems otherwise. Decisions made by 
     a commission in regards to a detainee's guilt or innocence 
     may be considered by a tribunal when assessing the need to 
     continue the detention of a detainee.

     SEC. 14. COMMUNICATION WITH PERSONS IN CUSTODY.

       An individual detained, indicted, or convicted under this 
     Act shall only be permitted to communicate with the 
     interpreter assigned to the individual, the counsel 
     representing the individual, prison personnel, and any other 
     individual approved by the Secretary of Defense.

     SEC. 15. COMMISSION COUNSEL.

       (a) In General.--A person shall be admitted to practice 
     before a commission if the person--
       (1) is a United States citizen;
       (2) has been admitted to the practice of law in a State, 
     district, territory, or possession of the United States, or 
     before a Federal court;
       (3) has not been sanctioned or otherwise the subject of 
     disciplinary action by any court, bar, or other competent 
     governmental authority for misconduct;
       (4) is eligible for access to information classified at the 
     level of secret as defined by the Department of Defense; and
       (5) signs a written agreement to comply with all applicable 
     regulations or instructions for counsel, including any rules 
     of court for conduct during the course of proceedings.
       (b) Consultation With Colleagues.--Any person admitted 
     under subsection (a) shall not confer with any colleague who 
     does not have the appropriate clearance.

[[Page S6801]]

       (c) Security Clearance.--
       (1) Expedited consideration.--The Secretary of Defense 
     shall ensure that a person seeking to be admitted under 
     subsection (a) is timely processed for the security clearance 
     required for access to materials necessary for providing a 
     defendant with effective assistance of counsel.
       (2) Counsel ineligible for clearance.--If the Secretary of 
     Defense determines a person is not eligible for the necessary 
     security clearance, the person shall not be permitted to 
     represent an individual in any proceeding before the 
     Commission. The determination of the Secretary of Defense 
     shall be final and is not subject to appeal to, or other 
     review by, any court of the United States.
       (d) Travel Expenses.--The Secretary of Defense shall 
     reimburse any person not employed by the Government who is 
     representing an individual before the Commission for travel 
     away from the home or regular place of business of the person 
     in connection with such representation. The rates for the 
     payment of travel expenses under this subsection shall be 
     those authorized for employees of agencies under subchapter I 
     of chapter 57 of title 5, United States Code.
                                  ____

  There being no objection, the material was ordered to be printed in 
the Record, as follows:

       The Unprivileged Combatants Act of 2006 is a follow-up to 
     the Military Commissions Procedures Act of 2002 (S. 1937, 
     107th Congress) which you cosponsored with Senator Durbin in 
     February 2002. The goal of this bill is to balance the need 
     for national security (interrogations and detention of 
     combatants) with the need to afford detainees with sufficient 
     due process so that nations such as Great Britain and 
     Australia will not place undue pressure on the United States 
     to release their citizens from Guantanamo Bay. This bill 
     addresses only those combatants currently held at Guantanamo 
     Bay. The Act clarifies the procedures used in Combatant 
     Status Review Tribunals and establishes procedures for the 
     trial of detainees. These procedures constitute ``a 
     meaningful opportunity to contest the factual basis for that 
     detention before a neutral decisionmaker.'' (Hamdi v. 
     Rumsfeld, 542 U.S. 507, O'Connor, J.) This bill does not 
     address the issue of unprivileged combatants contesting their 
     detentions through habeas appeals. Although the Graham-Kyl-
     Levin amendment to the 2005 DoD appropriations bill has 
     addressed this issue, a forthcoming Supreme Court decision 
     (Hamdan v. Rumsfeld, 04-5393) will probably require 
     additional legislation on this matter.
       Section 301: Findings: This title is in direct response to 
     the United States Supreme Court's ruling in Rasul v. Bush.
       Section 302: Definition Section: Definition section of the 
     bill which defines primary terms such as field tribunal, 
     classification tribunal, military commission, and 
     unprivileged combatant.
       Section 303: Authorizing Military Commissions: The 
     President is authorized to establish military commissions for 
     the trial of individuals for offenses as provided in this 
     title.
       Section 304: Jurisdiction Over Unprivileged Combatants: 
     This title establishes exclusive jurisdiction to hear any 
     matter involving an unprivileged combatant who has been 
     detained by the Department of Defense at Guantanamo Bay, 
     Cuba. These detainees may be tried via laws of war or 
     pursuant to the Department of Defense's Military Commission 
     Instruction Number Two.
       Section 305: Appellate Jurisdiction: The U.S. Courts of 
     Military Appeals shall have exclusive jurisdiction over 
     appeals from all final decisions of a classification tribunal 
     board or military commission under this tide. These decisions 
     are then subject to review by the Supreme Court by writ of 
     certiorari.
       Section 306: Military Commission: The Commissions shall 
     consist of three military officers, at least one of whom is a 
     Judge Advocate General. These Commissions shall decide the 
     guilt or innocence of detainees charged under section 304 of 
     this Act. This is basically what happens now.
       Section 307: Persons in Custody: Not more than 60 days 
     after the enactment of this Act, the Secretary of Defense is 
     required to develop a list of all persons who are being 
     detained at Guantanamo Bay, Cuba, and whom the government 
     wishes to continue to detain as an unprivileged combatant. 
     The Act requires that the original list and subsequent lists, 
     updated at least once every 60 days, be submitted to the 
     appropriate House and Senate committees.
       Section 308: Field Tribunals: Not more than 30 days after a 
     suspected unprivileged combatant has been detained by United 
     States forces, the Department of Defense shall conduct a 
     field tribunal (``FT'') in order to determine whether the 
     detainee is an unprivileged combatant and whether the 
     detainee is entitled to the rights afforded under the Geneva 
     Convention. The procedures governing a field tribunal shall 
     be promulgated by the Department of Defense.
       Section 309: Classification Tribunals: A Classification 
     Tribunal (``CT'') is very similar to the current Combatant 
     Status Review Tribunal. The CT shall be composed of three 
     military officers, one of whom shall be an attorney. Pursuant 
     to a hearing before a CT, a designee shall be released and 
     repatriated to an appropriate country unless a CT finds by a 
     preponderance of the evidence that--(l) the detainee is a 
     threat to the national security interest of the United 
     States; or (2) there are reasonable grounds to believe that 
     if released the person would take up arms against the United 
     States. Decisions of the CT shall be repeated every six 
     months. Detainees may be released only when the CT or the 
     Administrative Board determines the detainee is no longer a 
     threat to national security. This section also expressly 
     states that a detainee who is also a United States citizen 
     may not be held or tried under this act.
       Section 310: Classification Tribunal Procedures: Procedures 
     for CT's are the same as those of Combatant Status Review 
     Tribunals except detainees shall be represented by counsel 
     and are permitted to view unclassified discovery that the 
     prosecution plans to present before the tribunal.
       Section 311: Continuance of Classification Tribunals: 
     Classification tribunals may be continued in order for the 
     government to continue their interrogation of a detainee. 
     Upon a motion from the Government, the classification 
     tribunal board may grant a continuance for up to a 6-month 
     period, if the classification tribunal board determines that: 
     1) the individual being detained is a high level individual 
     in the planning or financing of terrorist activities, or 2) 
     the individual possesses information vital to the safety of 
     the United States or its citizens. The Government may obtain 
     more than one continuance if it demonstrates that such 
     continuances are necessary for information gathering purposes 
     as it relates to national security. Said applications for 
     Continuances shall be made ex parte and before a detainee is 
     given an attorney. Accordingly, a detainee is only given an 
     attorney once the tribunal is informed that the interrogation 
     efforts have been exhausted.
       Section 312 & 313: Criminal Prosecution Procedures: 
     Military Commission procedures will be the same as the 
     current procedures afforded detainees under the current 
     system.
       Section 314: Communication with Persons in Custody: Limits 
     communications by any detainee indicted or convicted under 
     this Act to the individual's interpreter, assigned counsel, 
     prison personnel, and any other individual(s) approved by the 
     Secretary of Defense.
       Section 315: Commission Counsel: Provides the following 
     criteria for persons to be admitted to practice before a 
     commission: 1) U.S. Citizen, 2) has been admitted to practice 
     law in a State, district, territory or possession of the 
     United States or before Federal Court, 3) has not been 
     disciplined by any court, bar or other competent governmental 
     authority for misconduct, 4) maintains a minimum of 
     ``secret'' clearance and 5) signs a written agreement to 
     comply with all applicable regulations aid instructions for 
     counsel during the course of proceedings. It further provides 
     persons admitted to practice will not confer with any 
     colleague who does not have at least a ``secret'' clearance. 
     This section provides that individuals seeking to practice 
     before a commission will be expedited in consideration for 
     obtaining the necessary security clearance. The decision of 
     the Secretary of Defense regarding the granting or not of the 
     security clearance is final and is not eligible for appeal or 
     review. Finally, this section provides that persons 
     practicing before the commission are eligible to have their 
     travel expenses reimbursed.
                                 ______