[Congressional Record Volume 152, Number 109 (Thursday, September 7, 2006)]
[Senate]
[Pages S9113-S9122]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. FRIST (for himself, Mr. McConnell, and Mr. Inhofe):
  S. 3861. A bill to facilitate bringing to justice terrorists and 
other unlawful enemy combatants through full and fair trials by 
military commissions, and for other purposes; read the first time.
  Mr. FRIST. I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 3861

       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 ``Bringing Terrorists to 
     Justice Act of 2006''.

     SEC. 2. FINDINGS.

       Congress makes the following findings:
       (1) For more than 10 years, the al Qaeda terrorist 
     organization has waged an unlawful war of violence and terror 
     against the United States and its allies. Al Qaeda was 
     involved in the bombing of the World Trade Center in New York 
     City in 1993, the bombing of the United States Embassies in 
     Kenya and Tanzania in 1998, and the attack on the U.S.S. Cole 
     in Yemen in 2000. On September 11, 2001, al Qaeda launched 
     the most deadly foreign attack on United States soil in 
     history. Nineteen al Qaeda operatives hijacked four 
     commercial aircraft and piloted them into the World Trade 
     Center Towers in New York City and the headquarters of the 
     United States Department of Defense at the Pentagon, and 
     downed United Airlines Flight 93. The attack destroyed the 
     Towers, severely damaged the Pentagon, and resulted in the 
     deaths of approximately 3,000 innocent people.
       (2) Following the attacks on the United States on September 
     11th, Congress recognized the existing hostilities with al 
     Qaeda and affiliated terrorist organizations and, by the 
     Authorization for the Use of Military Force Joint Resolution 
     (Public Law 107-40), recognized that ``the President has 
     authority under the Constitution to take action to deter and 
     prevent acts of international terrorism against the United 
     States'' and authorized the President ``to use all necessary 
     and appropriate force against those nations, organizations, 
     or persons he determines planned, authorized, committed, or 
     aided the terrorist attacks that occurred on September 11, 
     2001 . . . in order to prevent any future acts of 
     international terrorism against the United States by such 
     nations, organizations or persons.''
       (3) The President's authority to convene military 
     commissions arises from the Constitution's vesting in the 
     President of the executive power and the power of Commander 
     in Chief of the Armed Forces. As the Supreme Court of the 
     United States recognized in Madsen v. Kinsella, 343 U.S. 341, 
     346-48 (1952), ``[s]ince our nation's earliest days, such 
     commissions 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.''
       (4) In exercising the authority vested in the President by 
     the Constitution and laws of the United States, including the 
     Authorization for Use of Military Force Joint Resolution, and 
     in accordance with the law of war, the President has detained 
     enemy combatants in the course of this armed conflict and 
     issued the Military Order of November 13, 2001, to govern 
     the ``Detention, Treatment, and Trial of Certain Non-
     Citizens in the War Against Terrorism.'' This Order 
     authorized the Secretary of Defense to establish military 
     commissions to try individuals subject to the Order for 
     any offenses triable by military commission that such 
     individuals are alleged to have committed.
       (5) The Supreme Court in Hamdan v. Rumsfeld, 126 S. Ct. 
     2749 (2006), held that the military commissions established 
     by the Department of Defense under the President's Military 
     Order of November 13, 2001, were not consistent with certain 
     aspects of United States domestic law. The Congress may by 
     law, and does by enactment of this statute, eliminate any 
     deficiency of statutory authority to facilitate bringing 
     terrorists with whom the United States is engaged in armed 
     conflict to justice for violations of the law of war and 
     other offenses triable by military commissions. The 
     prosecution of such individuals by military commissions 
     established and conducted consistent with this Act fully 
     complies with the Constitution, the laws of the United 
     States, treaties to which the United States is a party, and 
     the law of war.
       (6) The use of military commissions is particularly 
     important in this context because other alternatives, such as 
     the use of courts-martial, generally are impracticable. The 
     terrorists with whom the United States is engaged in armed 
     conflict have demonstrated a commitment to the destruction of 
     the United States and its people, to the violation of the law 
     of war, and to the abuse of American legal processes. In a 
     time of ongoing armed conflict, it generally is neither 
     practicable nor appropriate for combatants like al Qaeda 
     terrorists to be tried before tribunals that include all of 
     the procedures associated with courts-martial.
       (7) Many procedures for courts-martial would not be 
     practicable in trying the unlawful enemy combatants for whom 
     this Act provides for trial by military commission. For 
     instance, court martial proceedings would in certain 
     circumstances--
       (A) compel the Government to share classified information 
     with the accused, even though members of al Qaeda cannot be 
     trusted with our Nation's secrets and it would not be 
     consistent with the national security of the United States to 
     provide them with access to classified information;
       (B) exclude the use of hearsay evidence even though such 
     evidence often will be the best and most reliable evidence 
     that the accused has committed a war crime. For example, many 
     witnesses in military commission trials are likely to be 
     foreign nationals who are not amenable to process or may be 
     precluded for national security reasons from entering the 
     United States or Guantanamo Bay to testify. Other witnesses 
     may be unavailable because of military necessity, 
     incarceration, injury, or death. In short, applying the 
     hearsay rules from the Manual for Courts-Martial or from the 
     Federal Rules of Evidence would make it virtually impossible 
     to bring terrorists to justice for their violations of the 
     law of war;
       (C) specify speedy trials and technical rules for sworn and 
     authenticated statements when, due to the exigencies of 
     wartime, the United States cannot safely require members of 
     the armed forces to gather evidence on the battlefield, 
     including civilian eyewitness testimony, as though they 
     were police officers. Nor can the United States divert 
     members from the front lines and their duty stations to 
     attend military commission proceedings. Therefore, strict 
     compliance with such rules for evidence gathered on the 
     battlefield would be impracticable, given the preeminent 
     focus on military operations and the chaotic nature of 
     combat.
       (8) The exclusive judicial review for which this Act, and 
     the Detainee Treatment Act of 2005, provides is without 
     precedent in the history of armed conflicts involving the 
     United States, exceeds the scope of judicial review 
     historically provided for by military commissions, and is 
     channeled in a manner appropriately tailored to--
       (A) the circumstances of the conflicts between the United 
     States and international terrorist organizations; and
       (B) the need to ensure fair treatment of those detained as 
     enemy combatants, to minimize the diversion of members of the 
     armed forces from other wartime duties, and to protect the 
     national security of the United States.
       (9) In early 2002, as memorialized in a memorandum dated 
     February 7, 2002, the President determined that common 
     Article 3 of the Geneva Conventions did not apply

[[Page S9114]]

     with respect to the United States conflict with al Qaeda 
     because al Qaeda was not a party to those treaties and the 
     conflict with al Qaeda was an armed conflict of an 
     international character. That was the interpretation of the 
     United States prior to the Supreme Court's decision in Hamdan 
     on June 29, 2006. Hamdan's statement to the contrary makes it 
     appropriate to clarify the standards imposed by common 
     Article 3. This Act makes clear that the prohibitions against 
     cruel, inhuman, and degrading treatment found in the Detainee 
     Treatment Act of 2005 fully satisfy the obligations of the 
     United States with respect to the standards for detention and 
     treatment established by section 1 of common Article 3, 
     except for those obligations arising under paragraphs (b) and 
     (d). In addition, the Act makes clear that the Geneva 
     Conventions are not a source of judicially enforceable 
     individual rights, thereby reaffirming that enforcement of 
     the obligations imposed by the Conventions is a matter 
     between the nations that are parties to them.

     SEC. 3. AUTHORIZATION FOR MILITARY COMMISSIONS.

       (a) In General.--The President is authorized to establish 
     military commissions for violations of the law of war and 
     other offenses triable by military commissions as provided in 
     section 4 of this Act (chapter 47A of title 10).
       (b) Construction.--The authority granted in subsection (a) 
     shall not be construed to limit the authority of the 
     President under the Constitution of the United States or the 
     laws thereof to establish military commissions on the 
     battlefield, in occupied territories, or in other armed 
     conflicts should circumstances so require.
       (c) Scope of Punishment Authority.--A military commission 
     established pursuant to subsection (a) shall have authority 
     to impose upon any person found guilty after a proceeding 
     under this Act a sentence that is appropriate to the offense 
     or offenses for which there was a finding of guilt, which 
     sentence may include death where authorized by this Act, 
     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 commission shall determine to be proper.
       (d) Execution of Punishment.--The Secretary of Defense 
     shall be authorized to carry out a sentence of punishment 
     decreed by a military commission pursuant to subsection (a) 
     in accordance with such procedures as the Secretary may 
     prescribe.
       (e) Annual Report on Trials by Military Commission.--
       (1) Annual report required.--Not later than December 31 
     each year, the Secretary of Defense shall submit to the Armed 
     Services Committees of the House of Representatives and the 
     Senate an annual report on the conduct of trials by military 
     commissions established pursuant to sub-section (a) during 
     such year.
       (2) Form.--Each such report shall be submitted in 
     unclassified form, with classified annex, if necessary and 
     consistent with national security.

     SEC. 4. MILITRY COMMISSIONS

       (a) Military Commissions.--
       (1) In general.--Subtitle A of title 10, United States 
     Code, is amended by inserting after chapter 47 the following 
     new chapter:

                  ``CHAPTER 47A--MILITARY COMMISSIONS

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.

     ``Sec. 948a. Definitions

       ``In this chapter:
       ``(1) Alien.--The term `alien' means an individual who is 
     not a citizen of the United States.
       ``(2) Classified information.--The term `classified 
     information' means the following--
       ``(A) Any information or material that has been determined 
     by the United States Government pursuant to statute, 
     Executive order, or regulation to require protection against 
     unauthorized disclosure for reasons of national security.
       ``(B) Any restricted data, as that term is defined in 
     section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C. 
     2014(y)).
       ``(3) Commission.--The term `commission' means a military 
     commission established pursuant to chapter 47A of title 10, 
     United States Code.
       ``(4) Convening authority.--The term `convening authority' 
     shall be the Secretary of Defense or his designee.
       ``(5) Lawful enemy combatant.--The term `lawful enemy 
     combatant' means an individual determined by or under the 
     authority of the President or Secretary of Defense (whether 
     on an individualized or collective basis) to be: (i) a member 
     of the regular forces of a State party engaged in hostilities 
     against the United States or its co-belligerents; (ii) 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 (iii) a 
     member of a regular armed forces who professes allegiance to 
     a government engaged in such hostilities, but not recognized 
     by the United States.
       ``(6) Secretary.--The term `Secretary' means the Secretary 
     of Defense.
       ``(7) Unlawful enemy combatant.--The term `unlawful enemy 
     combatant' means an individual determined by or under the 
     authority of the President or the Secretary of Defense--
       ``(A) to be part of or affiliated with a force or 
     organization--including but not limited to al Qaeda, the 
     Taliban, any international terrorist organization, or 
     associated forces--engaged in hostilities against the United 
     States or its co-belligerents; in violation of the law of 
     war;
       ``(B) to have committed a hostile act in aid of such a 
     force or organization so engaged; or
       ``(C) to have supported hostilities in aid of such a force 
     or organization so engaged.
       ``This definition includes any individual determined by a 
     Combatant Status Review Tribunal, before the effective date 
     of this Act, to have been properly detained as an enemy 
     combatant, but excludes any alien determined by the President 
     or the Secretary of Defense (whether on an individualized or 
     collective basis), or by any competent tribunal established 
     under their authority, to be (i) a lawful enemy combatant 
     (including a prisoner of war), or (ii) a protected person 
     whose trial by these military commissions would be 
     inconsistent with Articles 64-76 of the Geneva Convention 
     Relative to the Protection of Civilian Persons in Time of War 
     of August 12, 1949. For purposes of this section, the term 
     ``protected person'' refers to the category of persons 
     described in Article 4 of the Geneva Convention Relative to 
     the Protection of Civilian Persons in Time of War of August 
     12, 1949.
       ``(6) Geneva conventions.--The term `Geneva Conventions' 
     means the international conventions signed at Geneva on 
     August 12, 1949, including common Article 3.

     ``Sec. 948b. Military commissions generally

       ``(a) Purpose.--This chapter codifies and establishes 
     procedures governing the use of military commissions to try 
     unlawful enemy combatants for violations of the law of war 
     and other offenses triable by military commissions. Although 
     military commissions traditionally have been constituted by 
     order of the President, the decision of the Supreme Court in 
     Hamdan v. Rumsfeld makes it both necessary and appropriate to 
     codify procedures for military commissions as set forth 
     herein.
       ``(b) Rule of Construction.--The procedures for military 
     commissions set forth in this chapter are modeled after the 
     procedures established for courts-martial in the Uniform Code 
     of Military Justice. However, it would be neither desirable 
     nor practicable to try unlawful enemy combatants by court-
     martial procedures. The trial of such persons by military 
     commission presents new challenges that require that 
     interpretations of this Act not be unduly influenced by the 
     rules and procedures developed for courts-martial. Therefore, 
     no construction or application of chapter 47 of this title 
     shall be binding in the construction or application of this 
     chapter.
       ``(c) Alien unlawful enemy combatants may be tried for 
     violations of the law of war and other offenses triable by 
     military commissions committed against the United States or 
     its co-belligerents before, on, or after September 11, 2001.
       ``(d) A military commission established under this chapter 
     is a regularly constituted court, affording all the necessary 
     `judicial guarantees which are recognized as indispensable by 
     civilized peoples' for purposes of common Article 3 of the 
     Geneva Conventions.

     ``Sec. 948c. Persons subject to military commissions

       ``Alien unlawful enemy combatants, as defined in section 
     948a of this title, shall be subject to trial by military 
     commissions as set forth in this chapter.

     ``Sec. 948d. Jurisdiction of military commissions

       ``(a) Military commissions shall have jurisdiction to try 
     any offense made punishable under this chapter, when 
     committed by an alien unlawful enemy combatant. Military 
     commissions shall not have jurisdiction over lawful enemy 
     combatants. Lawful enemy combatants who violate the law of 
     war are subject to chapter 47 of Title 10, United States 
     Code. Courts-martial established under chapter 47 shall have 
     jurisdiction to try a lawful enemy combatant for any 
     offense made punishable under this chapter.
       ``(b) Military commissions shall not have jurisdiction over 
     any individual determined by the President or the Secretary 
     of Defense (whether on an individualized or collective 
     basis), or by any competent tribunal established under their 
     authority, to be a ``protected person'' whose trial by these 
     military commissions would be inconsistent with Articles 64-
     76 of the Geneva Convention Relative to the Protection of 
     Civilian Persons in Time of War of August 12, 1949. Such 
     persons shall be tried in courts-martial or other tribunals 
     consistent with their status under the Geneva Conventions. 
     For purposes of this section, the term ``protected person'' 
     refers to the category of persons described in Article 4 of 
     the Geneva Convention Relative to the Protected of Civilian 
     Persons in Time of War of August 12, 1949.
       ``(c) Military commissions may, under such limitations as 
     the Secretary of Defense may prescribe, adjudge any 
     punishment not forbidden by this chapter, including the 
     penalty of death where authorized by this chapter.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

``Sec.
``948h. Who may convene military commissions.

[[Page S9115]]

``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional 
              members.

     ``Sec. 948h. Who may convene military commissions

       ``(a) The Secretary may issue orders convening military 
     commissions to try individuals under this chapter.
       ``(b) The Secretary may delegate his authority to convene 
     military commissions or to promulgate any regulations under 
     this chapter.

     ``Sec. 948i. Who may serve on military commissions

       ``(a) In General.--Any commissioned officer of the United 
     States armed forces on active duty is eligible to serve on a 
     military commission. Eligible commissioned officers shall 
     include, without limitation, reserve personnel on active 
     duty, National Guard personnel on active duty in Federal 
     service, and retired personnel recalled to active duty.
       ``(b) Detail of Members.--When convening a commission, the 
     convening authority shall detail as members thereof such 
     members of the armed forces as, in his opinion, are fully 
     qualified for the duty by reason of age, education, training, 
     experience, length of service, and judicial temperament. No 
     member of an armed force shall be eligible to serve as a 
     member of a commission when he is the accuser or a witness 
     for the prosecution or has acted as an investigator or 
     counsel in the same case.
       ``(c) Excuse of Members.--Before a commission is assembled 
     for the trial of a case, the convening authority may excuse a 
     member of the commission from participating in the case.

     ``Sec. 948j. Military judge of a military commission

       ``(a) Detail of a Military Judge.--A military judge shall 
     be detailed to each commission. The Secretary shall prescribe 
     regulations providing for the manner in which military judges 
     are detailed to such commissions. The military judge shall 
     preside over each commission to which he has been detailed. 
     The convening authority shall not prepare or review any 
     report concerning the effectiveness, fitness, or efficiency 
     of the military judge so detailed relating to his performance 
     duty as a military judge.
       ``(b) Eligibility.--A military judge shall be a 
     commissioned officer of the armed forces who is a member of 
     the bar of a Federal court or a member of the bar of the 
     highest court of a State, and who is certified to be 
     qualified for duty as a military judge by the Judge Advocate 
     General of the armed force of which such military judge is a 
     member. A commissioned officer who is certified to be 
     qualified for duty as a military judge of a commission may 
     perform such other duties as are assigned to him by or 
     with the approval of that Judge Advocate General or his 
     designee.
       ``(c) Ineligibility of Certain Individuals.--No person is 
     eligible to act as military judge in any case in which he is 
     the accuser or a witness or has acted as investigator or a 
     counsel in the same case.
       ``(d) Consultation with Members; Ineligibility To Vote.--
     Except as provided in section 949d of this title, the 
     military judge detailed to the commission may not consult 
     with the members of the commission except in the presence of 
     the accused, trial counsel, and defense counsel, nor may he 
     vote with the members of the commission.

     ``Sec. 948k. Detail of trial counsel and defense counsel

       ``(a) Detail of Counsel Generally.--
       ``(1) Trial counsel and military defense counsel shall be 
     detailed for each commission.
       ``(2) Assistant trial counsel and assistant and associate 
     military defense counsel may be detailed for each commission.
       ``(3) Military defense counsel shall be detailed as soon as 
     practicable after the swearing of charges against the person 
     accused.
       ``(4) The Secretary shall prescribe regulations providing 
     for the manner in which counsel are detailed for military 
     commissions and for the persons who are authorized to detail 
     counsel for such military commissions.
       ``(b) Trial Counsel.--Subject to subsection (d), 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) 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 commission 
     pursuant to regulations prescribed by the Secretary.
       ``(c) Military Defense Counsel.--Subject to subsection (d), 
     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 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) Ineligibility of Certain Individuals.--No person who 
     has acted as an investigator, military judge, or member of a 
     military commission under this chapter may act later as trial 
     counselor or defense counsel in the same case. No person who 
     has acted for the prosecution may act later in the same case 
     for the defense, nor may any person who has acted for the 
     defense act later in the same case for the prosecution.

     ``Sec. 948l. Detail or employment of reporters and 
       interpreters

       ``(a) Court Reporters.--Under such regulations as the 
     Secretary may prescribe, the convening authority of a 
     military commission shall detail or employ qualified court 
     reporters, who shall record the proceedings of and testimony 
     taken before that commission.
       ``(b) Interpreters.--Under like regulations the convening 
     authority may detail or employ interpreters who shall 
     interpret for the commission, and, as necessary, for trial 
     counsel and defense counsel.
       ``(c) Transcript; Record.--The transcript shall be under 
     the control of the convening authority, which is responsible 
     for preparing the record of the proceedings.

     ``Sec. 948m. Number of members; excuse of members; absent and 
       additional members

       ``(a) Number of Members.--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 death penalty is sought, the 
     military commission shall have the number of members 
     prescribed by section 949m(c) of this title.
       ``(b) Excuse of Members.--No member of a military 
     commission may be absent or excused after the commission has 
     been assembled for the trial of the accused unless excused--
       ``(1) as a result of challenge;
       ``(2) by the military judge for physical disability or 
     other good cause; or
       ``(3) by order of the convening authority for good cause.
       ``(c) Absent and Additional Members.--Whenever a military 
     commission is reduced below the requisite number of members, 
     the trial may not proceed unless the convening authority 
     details new members sufficient to provide not less than the 
     requisite number. The trial may proceed with the new members 
     present after the recorded evidence previously introduced 
     before the members of the commission has been read to the 
     commission in the presence of the military judge, the accused 
     (except as provided by section 949d of this title), and 
     counsel for both sides.

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; statements obtained 
              by torture.
``948s. Service of charges.

     ``Sec. 948q. Charges and specifications

       ``(a) Charges and Specifications.--Charges and 
     specifications against an accused shall be signed by a person 
     subject to chapter 47 of this title under oath before a 
     commissioned officer of the armed forces authorized to 
     administer oaths and shall state--
       ``(1) that the signer has personal knowledge of, or reason 
     to believe, the matters set forth therein; and
       ``(2) that they are true in fact to the best of his 
     knowledge and belief.
       ``(b) Notice to Accused.-- Upon the swearing of the charges 
     and specifications in accordance with subsection (a), the 
     accused shall be informed of the charges and specifications 
     against him as soon as practicable.

     Sec. 948r. Compulsory self-incrimination prohibited; 
       statements obtained by torture

       ``(a) In General.--No person shall be required to testify 
     against himself at a commission proceeding.
       ``(b) Statements Obtained by Torture.--A statement obtained 
     by use of torture, as defined in 18 U.S.C. Sec. 2340, whether 
     or not under color of law, shall not be admissible against 
     the accused, except against a person accused of torture as 
     evidence the statement was made.
       ``(c) Statements Not Obtained by Torture.--No otherwise 
     admissible statement may be received in evidence, including 
     statements allegedly obtained by coercion, if the military 
     judge finds that the circumstances under which the statement 
     was made render it unreliable or lacking in probative value.

     ``Sec. 948s. Service of charges

       ``The trial counsel assigned to the case shall cause to be 
     served upon the accused and counsel a copy of the charges 
     upon which trial is to be had in English and, if appropriate, 
     in another language that the accused 
     understands, sufficiently in advance of trial to prepare a 
     defense.

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.

[[Page S9116]]

``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.

     ``Sec. 949a. Rules

       ``(a) Procedures.--Pretrial, trial, and post-trial 
     procedures, including elements and modes of proof, for cases 
     triable by military commission under this chapter shall be 
     prescribed by the Secretary, but may not be contrary to or 
     inconsistent with this chapter.
       ``(b) Rules of Evidence.--Subject to such exceptions and 
     limitations as the Secretary may provide by regulation, 
     evidence in a military commission shall be admissible if the 
     military judge determines that the evidence would have 
     probative value to a reasonable person.
       ``(c) Hearsay Evidence.--Hearsay evidence is admissible, 
     unless the military judge finds that the circumstances render 
     it unreliable or lacking in probative value, provided that 
     the proponent of the evidence makes the evidence known to the 
     adverse party in advance of trial or hearing.
       ``The military judge shall exclude any evidence the 
     probative value of which is substantially outweighed by the 
     danger of unfair prejudice, confusion of the issues, or 
     misleading the members of the commission, or by 
     considerations of undue delay, waste of time, or needless 
     presentation of cumulative evidence.

     ``Sec. 949b. Unlawfully influencing action of military 
       commission

       ``(a) In General.--(1) No authority convening a military 
     commission under this chapter may censure, reprimand, or 
     admonish the commission or any member, military judge, or 
     counsel thereof, with respect to the findings or sentence 
     adjudged by the commission, or with respect to any other 
     exercises of its or his functions in the conduct of the 
     proceedings.
       ``(2) No person may attempt to coerce or, by any 
     unauthorized means, influence the action of a commission or 
     any member thereof, in reaching the findings or sentence in 
     any case, or the action of any convening, approving, or 
     reviewing authority with respect to his judicial acts.
       ``(3) The foregoing 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 the military judge or counsel.
       ``(b) Prohibition on Consideration of Actions on Commission 
     in Evaluation of Fitness.--In the preparation of an 
     effectiveness, fitness, or efficiency report or any other 
     report or document used in whole or in part for the purpose 
     of determining whether a commissioned officer of the armed 
     forces is qualified to be advanced, in grade, or in 
     determining the assignment or transfer of any such officer or 
     in determining whether any such officer should be retained on 
     active duty, no person may--
       ``(1) consider or evaluate the performance of duty of any 
     member of a military commission under this chapter; or
       ``(2) give a less favorable rating or evaluation to any 
     commissioned officer because of the zeal with which such 
     officer, in acting as counsel, represented any accused before 
     a military commission under this chapter.

     ``Sec. 949c. Duties of trial counsel and defense counsel

       ``(a) Trial Counsel.--The trial counsel of a military 
     commission shall prosecute in the name of the United States.
       ``(b) Defense Counsel.--(1) The accused shall be 
     represented in his defense before a military commission 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 him, provided that civilian counsel--
       ``(A) is a United States citizen;
       ``(B) is admitted to the practice of law in a State, 
     district, territory, 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.
       ``Civilian defense counsel shall protect any classified 
     information received during the course of their 
     representation of the accused in accordance with all 
     applicable law governing the protection of classified 
     information, and shall not divulge such information to any 
     person not authorized to receive it.
       ``(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 his sole discretion may detail 
     additional military counsel.
       ``(6) Defense counsel may cross-examine each witness for 
     the prosecution who testifies before the commission.

     ``Sec. 949d. Sessions

       ``(a) Sessions Without Presence of Members.--(1) At any 
     time after the service of charges which have been referred 
     for trial by military commission, the military judge may call 
     the 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 of the commission;
       ``(C) if permitted by regulations of the Secretary, 
     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 of the 
     commission.
       ``(2) Except as provided in subsection (e), 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) Proceedings in Presence of Accused.--Except as 
     provided in subsections (c) and ( e), all proceedings of a 
     military commission under this chapter shall be in the 
     presence of the accused, defense counsel, and trial counsel, 
     and shall be made a part of the record.
       ``(c) Deliberations or Vote of Members.--When the members 
     of the commission deliberate or vote, only the members may be 
     present.
       ``(d) Public Proceedings.--(1) The military commission 
     shall hold open and public proceedings.
       ``(2) The military judge may close to the public all or a 
     part of the proceedings of a military commission under this 
     chapter 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 identifiable damage to the 
     public interest or the national security, including 
     intelligence or law enforcement sources, methods, or 
     activities; or
       ``(B) ensure the physical safety of individuals.
       ``(e) Limited Exclusion of the Accused for the Protection 
     of Classified Information.--(1) The military judge may, 
     subject to the provisions of this subsection, permit the 
     admission in a military commission under this chapter of 
     classified information outside the presence of the accused.
       ``(2) The military judge shall not exclude the accused from 
     any portion of the proceeding except upon a specific finding 
     that extraordinary circumstances exist such that--
       ``(A) the exclusion of the accused--
       ``(i) is necessary to protect classified information the 
     disclosure of which to the accused could reasonably be 
     expected to cause identifiable damage to the national 
     security, including intelligence or law enforcement sources, 
     methods, or activities; or
       ``(ii) is necessary to ensure the physical safety of 
     individuals; or
       ``(iii) is necessary to prevent disruption of the 
     proceedings by the accused; and
       ``(B) the exclusion of the accused--
       ``(i) is no broader than necessary; and
       ``(ii) will not deprive the accused of a full and fair 
     trial.
       ``(3)(A) A finding under paragraph (2) may be based upon a 
     presentation, including an ex parte or in camera 
     presentation, by either trial counselor defense counsel.
       ``(B) Before trial counsel may make a presentation 
     described in subparagraph (A) requesting the admission of 
     classified evidence outside the presence of the accused, 
     the head of the executive or military department or 
     governmental agency which has control over the matter 
     (after personal consideration by that officer) shall 
     certify in writing to the military judge that--
       ``(i) the disclosure of such classified information to the 
     accused could reasonably be expected to prejudice the 
     national security; and
       ``(ii) such evidence has been declassified to the maximum 
     extent possible, consistent with the requirements of national 
     security.
       ``(4)(A) No evidence shall be admitted if the accused is 
     not present for its admission or the evidence is not 
     otherwise provided to the accused, unless the evidence is 
     classified information and the military judge makes a 
     specific finding that--
       ``(i) consideration of the evidence by the commission, 
     without the presence of the accused, is warranted; and
       ``(ii) admission of an unclassified summary or redacted 
     version of that evidence would not be an adequate substitute 
     and, in the case of testimony, alternative methods to obscure 
     the identity of the witness are not adequate; and
       ``(iii) admission of the evidence would not deprive the 
     accused of a full and fair trial.

[[Page S9117]]

       ``(B) If the accused is excluded from a portion of the 
     proceeding, the accused shall be provided with a redacted 
     transcript of the proceeding and, to the extent practicable, 
     an unclassified summary of any evidence introduced. Under no 
     circumstances shall such a summary or redacted transcript 
     compromise the interests warranting the exclusion of the 
     accused under this subsection.
       ``(5)(A) Military defense counsel shall be present and able 
     to participate in all trial proceedings, and shall be given 
     access to all evidence admitted under subparagraph (4).
       ``(B) Civilian defense counsel shall be permitted to be 
     present and to participate in all trial proceedings, and 
     shall be given access to evidence admitted under sub-
     paragraph (4), provided that civilian defense counsel has 
     obtained the necessary security clearances and that such 
     presence and access are consistent with regulations that the 
     Secretary may prescribe to protect classified information.
       ``(C) Notwithstanding any other provision of law, any 
     defense counsel who receives classified information admitted 
     pursuant to subparagraph (4) shall not be obligated to, and 
     may not, disclose that evidence to the accused.
       ``(f) Admission of Statements of Accused.--(l) 
     Notwithstanding any other provision in this chapter, no 
     statement made by the accused during an interrogation, even 
     if otherwise classified, may be admitted into evidence in a 
     military commission under this chapter unless the accused is 
     present for its admission or the evidence is otherwise 
     provided to the accused.
       ``(2) For purposes of this subsection, a `statement' is a 
     statement communicated knowingly and directly by the accused 
     in response to questioning by foreign or United States 
     military, intelligence, or criminal investigative personnel. 
     This paragraph shall not be construed to prevent the 
     redaction of intelligence sources or methods, which do not 
     constitute statements of the accused, from any document 
     provided to the accused or admitted into evidence.

     ``Sec. 949e. Continuances

       ``The military judge may, for reasonable cause, grant a 
     continuance to any party for such time, and as often, as may 
     appear to be just.

     ``Sec. 949f. Challenges

       ``(a) Challenges Authorized.--The military judge and 
     members of the commission may be challenged by the accused or 
     the trial counsel for cause stated to the commission. The 
     military judge shall determine the relevance and validity of 
     the challenges for cause, and may not receive a challenge to 
     more than one person at a time. Challenges by the trial 
     counsel shall ordinarily be presented and decided before 
     those by the accused are offered.
       ``(b) Peremptory Challenges.--Each accused and the trial 
     counsel is entitled to one peremptory challenge, but the 
     military judge may not be challenged except for cause.
       ``(c) Challenges Against Additional Members.--Whenever 
     additional members are detailed to the court, and after any 
     challenges for cause against such additional members are 
     presented and decided each accused and the trial counsel are 
     entitled to one peremptory challenge against members not 
     previously subject to peremptory challenge.

     ``Sec. 949g. Oaths

       ``(a) In General.--(l) Before performing their respective 
     duties, military judges, members of commissions, 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 
     the same, and whether the oath shall be taken for all cases 
     in which these duties are to be performed or for a particular 
     case, shall be as prescribed in regulations of the Secretary. 
     These 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 duty; and
       ``(B) if such an oath is taken it need not again be taken 
     at the time the judge advocate, or other person is detailed 
     to that duty.
       ``(b) Witnesses.--Each witness before a military commission 
     under this chapter shall be examined on oath.
       ``(c) Oath Defined.--As used in this section, ``oath'' 
     includes an affirmation.

     ``Sec. 949h. Former jeopardy

       ``(a) In General.--No person may, without his consent, be 
     tried by a commission a second time for the same offense.
       ``(b) Scope of Trial.--No proceeding in which the accused 
     has been found guilty by military commission upon any charge 
     or specification is a trial in the sense of this section 
     until the finding of guilty has become final after review of 
     the case has been fully completed.

     ``Sec. 949i. Pleas of the accused

       ``(a) Plea of Not Guilty.--If an accused after a plea of 
     guilty sets up matter inconsistent with the plea, or if it 
     appears that he has entered the plea of guilty through lack 
     of understanding of its meaning and effect, or if he fails or 
     refuses to plead, a plea of not guilty shall be entered in 
     the record, and the commission shall proceed as though he had 
     pleaded not guilty.
       ``(b) Finding of Guilt After Guilty Plea.--With respect to 
     any charge or specification to which a plea of guilty has 
     been made by the accused and accepted by the military judge, 
     a finding of guilty of the charge or specification may be 
     entered immediately without a vote. This finding shall 
     constitute the finding of the commission unless the plea of 
     guilty is withdrawn prior to announcement of the sentence, in 
     which event the proceedings shall continue as though the 
     accused had pleaded not guilty.

     ``Sec. 949j. Opportunity to obtain witnesses and other 
       evidence

       ``(a) In General.--(1) Defense counsel in a military 
     commission under this chapter shall have a reasonable 
     opportunity to obtain witnesses and other evidence, including 
     evidence in the possession of the United States, as specified 
     in regulations prescribed by the Secretary.
       ``(2) Process issued in military commissions 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) Treatment of Certain Items.--The military judge in a 
     military commission under this chapter may, upon a sufficient 
     showing, authorize trial counsel in making documents 
     available to the defense through discovery conducted pursuant 
     to such rules as the Secretary shall prescribe--
       ``(1) to delete specified items of classified information 
     from such documents;
       ``(2) to substitute an unclassified summary of the 
     information for such classified documents; or
       ``(3) to substitute an unclassified statement admitting 
     relevant facts that classified information would tend to 
     prove.
       ``(c) Disclosure of Exculpatory Evidence.--(1) As soon as 
     practicable, trial counsel in a military commission under 
     this chapter shall disclose to the defense the existence of 
     any evidence known to trial counsel that reasonably tends to 
     exculpate the accused.
       ``(2) Exculpatory evidence that is classified may be 
     provided solely to defense counsel, and not the accused, 
     after in camera review by the military judge.
       ``(3) Before classified evidence may be withheld from the 
     accused under this subsection, the executive or military 
     department or governmental agency which has control over the 
     matter shall ensure and shall certify in writing to the 
     military judge that the disclosure of such evidence to the 
     accused could reasonably be expected to prejudice the 
     national security and that such evidence has been 
     declassified to the maximum extent possible, consistent with 
     the requirements of national security.
       ``(4) Any classified exculpatory evidence that is not 
     disclosed to the accused under this subsection--
       ``(A) shall be provided to military defense counsel; and
       ``(B) shall be provided to civilian defense counsel, 
     provided that civilian defense counsel has obtained the 
     necessary security clearances and access to such evidence is 
     consistent with regulations that the Secretary may prescribe 
     to protect classified information; and
       ``(C) shall be provided to the accused in a redacted or 
     summary form, if it is possible to do so without compromising 
     intelligence sources, methods, or activities, or other 
     national security interests.
       ``(5) Notwithstanding any other provision of law, any 
     defense counsel who receives evidence under this subsection 
     shall not be obligated to, and may not, disclose that 
     evidence to the accused.

     ``Sec. 949k. Defense of lack of mental responsibility

       ``(a) Affirmative Defense.--It is an affirmative defense in 
     a trial by military commission that, at the time of the 
     commission of the acts constituting the offense, the accused, 
     as a result of a severe mental disease or defect, was unable 
     to appreciate the nature and quality or the wrongfulness of 
     the acts. Mental disease or defect does not otherwise 
     constitute a defense.
       ``(b) Burden of Proof.--The accused has the burden of 
     proving the defense of lack of mental responsibility by clear 
     and convincing evidence.
       ``(c) Findings Following Assertion of Defense.--Whenever 
     lack of mental responsibility of the accused with respect to 
     an offense is properly at issue, the military judge shall 
     instruct the members of the commission as to the defense of 
     lack of mental responsibility under this section and shall 
     charge them to find the accused--
       ``(1) guilty;
       ``(2) not guilty; or
       ``(3) not guilty only by reason of lack of mental 
     responsibility.
       ``(d) Majority Vote Required for Finding.--The accused 
     shall be found not guilty only by reason of lack of mental 
     responsibility under subsection (c)(3) only if a majority of 
     the members of the commission at the time the vote is taken 
     determines that the defense of lack of mental responsibility 
     has been established.

     ``Sec. 949l. Voting and rulings

       ``(a) Vote by Secret Written Ballot.--Voting by members of 
     a military commission on the findings and on the sentence 
     shall be by secret written ballot.
       ``(b) Rulings.--(1) The military judge shall rule upon all 
     questions of law, including the

[[Page S9118]]

     admissibility of evidence, and all interlocutory questions 
     arising during the proceedings.
       ``(2) Any such ruling made by the military judge upon any 
     question of law or any interlocutory question other than the 
     factual issue of mental responsibility of the accused is 
     conclusive and constitutes the ruling of the commission. 
     However, the military judge may change his ruling at any time 
     during the trial.
       ``(C) Instructions Prior to Vote.--Before a vote is taken 
     of the findings, the military judge shall, in the presence of 
     the accused and counsel, instruct the members of the 
     commission as to the elements of the offense and charge 
     them--
       ``(l) that the accused must be presumed to be innocent 
     until his guilt is established by legal and competent 
     evidence beyond reasonable doubt;
       ``(2) that in the case being considered, if there is a 
     reasonable doubt as to the guilt of the accused, the doubt 
     must be resolved in favor of the accused and he must be 
     acquitted;
       ``(3) that, if there is reasonable doubt as to the degree 
     of guilt, the finding must be in a lower degree as to which 
     there is no reasonable doubt; and
       ``(4) that the burden of proof to establish the guilt of 
     the accused beyond a reasonable doubt is upon the United 
     States.

     ``Sec. 949m. Number of votes required

       ``(a) Conviction.--No person may be convicted of any 
     offense, except as provided in section 949i(b) of this title 
     or by concurrence of two-thirds of the members present at the 
     time the vote is taken.
       ``(b) Sentences.--(1) Except. as provided in paragraphs (2) 
     and (3), sentences shall be determined by a military 
     commission by the concurrence of two-thirds of the members 
     present at the time the vote is taken.
       ``(2) No person may be sentenced to suffer death, except 
     insofar as--
       ``(A) death has been expressly authorized under this Act 
     for an offense of which the accused has been found guilty;
       ``(B) the charges referred to the commission expressly 
     sought the penalty of death;
       ``(C) the accused was convicted of the offense by the 
     concurrence of all the members of the military commission 
     present at the time the vote is taken; and
       ``(D) all members of the military commission 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, except by the concurrence 
     of three-fourths of the members 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 shall be 
     not less than 12.
       ``(2) In any case described in paragraph (1) in which 12 
     members are not reasonably available 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 fewer 
     than the number of members so specified. In such a case, the 
     convening authority shall make a detailed written statement, 
     to be appended to the record, stating why a greater number of 
     members were not reasonably available.

     ``Sec. 949n. Military commission to announce action

       ``A military commission shall announce its findings and 
     sentence to the parties as soon as determined.

     ``Sec. 949o. Record of trial

       ``(a) Record; Authentication.--Each military commission 
     shall keep a separate, substantially 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 that of a member of the commission if the trial counsel 
     is unable to authenticate it by reason of his death, 
     disability, or absence. Where appropriate, and as provided by 
     regulation, the record of the military commission may contain 
     a classified annex.
       ``(b) Complete Record Required.--A complete record of the 
     proceedings and testimony shall be prepared in every military 
     commission established under this chapter.
       ``(c) Provision of Copy to Accused.--A copy of the record 
     of the proceedings of each military commission shall be given 
     to the accused as soon as it is authenticated. Where the 
     record contains classified information, or a classified 
     annex, the accused shall receive a redacted version of the 
     record. The appropriate defense counsel shall have access to 
     the unredacted record, as provided by regulation.

                       ``SUBCHAPTER V--SENTENCES

``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.

     ``Sec. 949s. Cruel or unusual punishments prohibited

       ``Punishment by flogging, or by branding, marking, or 
     tattooing on the body, or any other cruel or unusual 
     punishment, may not be adjudged by a military commission or 
     inflicted upon any person subject to this chapter. The use of 
     irons, single or double, except for the purpose of safe 
     custody, is prohibited.

     ``Sec. 949t. Maximum limits

       ``The punishment which a military commission may direct for 
     an offense may not exceed such limits as the President or 
     Secretary may prescribe for that offense.

     ``Sec. 949u. Execution of confinement

       ``(a) In General.--Under such regulations as the Secretary 
     may prescribe, a sentence of confinement adjudged by a 
     military commission may be carried into execution by 
     confinement--
       ``(1) in any place of confinement under the control of any 
     of the armed forces; or
       ``(2) in any penal or correctional institution under the 
     control of the United States or its allies or which the 
     United States may be allowed to use.
       ``(b) Treatment During Confinement by Other than the Armed 
     Forces.--Persons confined under subsection (a)(2) in a penal 
     or correctional institution not under the control of one of 
     the armed forces are subject to the same discipline and 
     treatment as persons confined or committed by the courts of 
     the United States or of the State, Territory, District of 
     Columbia, or place in which the institution is situated.

     ``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY 
                              COMMISSIONS

``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District 
              of Columbia Circuit and the Supreme Court of the United 
              States.
``950h. Appellate counsel.
``950i. Execution of sentence; suspension of sentence.
``950j. Finality or proceedings, findings, and sentences.

     ``950a. Error of law; lesser included offense

       ``(a) Error of Law.--A finding or sentence of a military 
     commission may not be held incorrect on the ground of an 
     error of law unless the error materially prejudices the 
     substantial rights of the accused.
       ``(b) Lesser Included Offense.--Any reviewing authority 
     with the power to approve or affirm a finding of guilty may 
     approve or affirm, instead, so much of the finding as 
     includes a lesser included offense.

     ``Sec. 950b. Review by the convening authority

       ``(a) Notice to Convening Authority of Findings and 
     Sentence.--The findings and sentence of a military commission 
     under this chapter shall be reported in writing promptly to 
     the convening authority after the announcement of the 
     sentence.
       ``(b) Submittal of Matters by Accused to Convening 
     Authority.--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 the accused has been given 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, for good cause, may 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 submission 
     to the convening authority under paragraph (1). Such a waiver 
     must 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 submission under this subsection shall be 
     deemed to have expired upon the submission of such a waiver 
     to the convening authority.
       ``(c) Action by the Convening Authority.--(1) The authority 
     under this section 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.
       ``(3)(A) Action on the sentence of a military commission 
     shall be taken by the convening authority.
       ``(B) Subject to regulations of the Secretary, such action 
     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, in his sole discretion, may approve, disapprove, 
     commute, or suspend the sentence in whole or in part. The 
     convening authority may not increase the sentence beyond that 
     which is found by the commission.
       ``(3) Action on the findings of a military commission by 
     the convening authority is not required. However, the 
     convening authority, in his sole discretion, may--
       ``(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.

[[Page S9119]]

       ``(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, in his sole 
     discretion, may order a proceeding in revision or a 
     rehearing.
       ``(2)(A) Except as provided in subparagraph (B), a 
     proceeding in revision may be ordered if--
       ``(i) there is an apparent error or omission in the record; 
     or
       ``(ii) the record shows improper or inconsistent action by 
     a 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 any 
     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;
       ``(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 he disapproves the findings and sentence and states the 
     reasons for disapproval of the findings. If such a person 
     disapproves the findings and sentence and does not order a 
     rehearing, he shall dismiss the charges. A rehearing as to 
     the findings may not be ordered where there is a lack of 
     sufficient evidence in the record to support the findings. A 
     rehearing as to the sentence may be ordered if the convening 
     authority disapproves the sentence.

     ``Sec. 950c. Waiver or withdrawal of appeal

       ``(a) Waiver of Right of Review.--(1) In each case subject 
     to appellate review under section 950f and 950g of this 
     title, except a case in which the sentence as approved under 
     section 950b of this title includes death, the accused may 
     file with the convening authority a statement expressly 
     waiving the right of the accused to such review.
       ``(2) A waiver under paragraph (1) shall be signed by both 
     the accused and by a defense counsel.
       ``(3) A waiver under paragraph (1) must be filed, if at 
     all, within 10 days after notice on the action is served on 
     the accused under section 950b(c)(4) of this title. The 
     convening authority, for good cause, may extend the period 
     for such filing by not more than 30 days.
       ``(b) Withdrawal of Appeal.--Except in a case in which the 
     sentence as approved under section 950b of this title 
     includes death, the accused may withdraw an appeal at any 
     time.
       ``(c) Effect of Waiver or Withdrawal.--A waiver of the 
     right to appellate review or the withdrawal of an appeal 
     under this section bars review under section 950f or 950g of 
     this title.

     ``Sec. 950d. Appeal by the United States

       ``(a) Interlocutory appeal.--(1) Except as provided in 
     paragraph (2), in a trial by military commission under this 
     chapter, the United States may take an interlocutory appeal 
     to the Court of Military Commission Review of any order or 
     ruling of the military judge that--
       ``(A) terminates commission proceedings 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 (d), (e), or (f) 
     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 commission with respect to the charge or 
     specification.
       ``(b) Notice of Appeal.--The United States shall take an 
     appeal of an order or ruling under subsection (a) by filing a 
     notice of appeal with the military judge within five days 
     after the date of such order or ruling.
       ``(c) Appeal.--An appeal under this section shall be 
     forwarded by means prescribed under regulations of the 
     Secretary directly to the Court of Military Commission 
     Review. In ruling on an appeal under this section, the Court 
     of Military Commission Review may act only with respect to 
     matters of law.
       ``(d) Court of Appeals.--The United States may appeal an 
     adverse ruling under subsection (c) to the United States 
     Court of Appeals for the District of Columbia Circuit by 
     filing a petition for review in the Court of Appeals within 
     10 days after the date of such ruling. Review under this 
     subsection shall be at the discretion of the Court of 
     Appeals.

     ``950e. Rehearings

       ``(a) Composition of Military Commission for Rehearing.--
     Each rehearing under this chapter shall take place before a 
     military commission composed of members not members of the 
     commission which first heard the case.
       ``(b) Scope of Rehearing.--(1) Upon a rehearing--
       ``(A) the accused may not be tried for any offense of which 
     he was found not guilty by the first 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) unless the sentence prescribed for the offense is 
     mandatory.
       ``(2) Upon a rehearing, if the sentence approved after the 
     first 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 commission.

     ``Sec. 950f. Review by Court of Military Commission Review

       ``(a) Court Established.--(1) The Secretary 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.
       ``(2) For the purpose of reviewing military commission 
     decisions, the court may sit in panels or as a whole in 
     accordance with rules prescribed by the Secretary.
       ``(b) Composition of the Court.--(l) The Secretary shall 
     assign appellate military judges to a Court of Military 
     Commission Review.
       ``(2) Each appellate military judge shall meet the 
     qualifications for military judges prescribed by section 
     948j(b) of this Act or shall be a civilian with comparable 
     qualifications.
       ``(3) No person may be appointed to serve as an appellate 
     military judge in any case in which that person acted as a 
     military judge, counsel, or reviewing official.
       ``(c) Right of Appeal.--The accused may appeal from the 
     final decision of a military commission, and the United 
     States may appeal as provided in section 950d of this title, 
     to the Court of Military Commission Review in accordance with 
     procedures prescribed under regulations of the Secretary.
       ``(d) Scope of Review.--In ruling on an appeal under this 
     section, the Court of Military Commission Review may act only 
     with respect to matters of law.

     ``Sec. 950g. Review by the United States Court of Appeals for 
       the District of Columbia Circuit and the Supreme Court of 
       the United States

       ``(a) In General.--(1)(A) Except as provided in 
     subparagraph (B), the United States Court of Appeals for the 
     District of Columbia Circuit shall have exclusive 
     jurisdiction to determine the validity of a final judgment 
     rendered by a military commission, pursuant to Section 
     1005(e)(3) of the Detainee Treatment Act of 2005.
       ``(B) The Court of Appeals shall not review the final 
     judgment until all other appeals under this chapter have been 
     waived or exhausted.
       ``(2) A petition for review must be filed by the accused in 
     the Court of Appeals by no longer than 20 days from the 
     earlier of when--
       ``(A) written notice of the final decision of the Court of 
     Military Commission Review is served on the accused or on 
     defense counsel; or
       ``(B) the accused submits, in the form prescribed by 
     section 950c of this title, a written notice waiving his 
     right to appeal under section 950f of this title.
       ``(b) Review by Supreme Court.--The Supreme Court of the 
     United States may review by writ of certiorari the final 
     judgment of the Court of Appeals pursuant to section 1257 of 
     title 28, United States Code.

     ``Sec. 950h. Appellate counsel

       ``(a) Appointment.--The Secretary 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 for appearing before military commissions 
     under this chapter.
       ``(b) Representation of United States.--Appellate counsel 
     may represent the United States in any appeal or review 
     proceeding under this chapter. Appellate Government counsel 
     may represent the United States before the Supreme Court in 
     cases arising under this chapter when requested to do so 
     by the Attorney General.
       ``(c) Representation of Accused.--The accused shall be 
     represented by appellate military counsel before the Court of 
     Military Commission Review, the United State Court of Appeals 
     for the District of Columbia Circuit, or the Supreme Court, 
     or by civilian counsel if retained by him.

     ``Sec. 950i. Execution of sentence; suspension of sentence

       ``(a) Execution of Sentence of Death Only Upon Approval by 
     the President.--If the sentence of a military commission 
     under this chapter extends to death, that part of the 
     sentence providing for death may not be executed until 
     approved by the President. In such a case, the President may 
     commute, remit, or suspend the sentence, or any part thereof, 
     as he sees fit.
       ``(b) Execution of Sentence of Death Only Upon Final 
     Judgment of legality of Proceedings.--(1) If the sentence of 
     a military commission under this chapter extends to death, 
     the sentence may not be executed until there is a final 
     judgment as to the legality of the proceedings (and with 
     respect to death, approval under subsection (a)).
       ``(2) A judgment as to legality of the proceedings is final 
     for purposes of paragraph (1) when--
       ``(A) review is completed by the Court of Military 
     Commission Review and--
       ``(i) the time for the accused to file a petition for 
     review by the Court of Appeals for the D.C. Circuit has 
     expired; and

[[Page S9120]]

       ``(ii) the accused has not filed a timely petition for such 
     review; and
       ``(iii) the case is not otherwise under review by that 
     Court; or
       ``(B) review is completed in accordance with judgment of 
     the Court of Appeals for the D.C. Circuit and--
       ``(i) a petition for a writ of certiorari is not timely 
     filed;
       ``(ii) such a petition is denied by the Supreme Court; or
       ``(iii) review is otherwise completed in accordance with 
     the judgment of the Supreme Court.
       ``(c) Suspension of Sentence.--The Secretary, or the 
     convening authority acting on the case (if other than the 
     Secretary), may suspend the execution of any sentence or part 
     thereof in the case, except a sentence of death.

     ``Sec. 950j. Finality of proceedings, findings, and sentences

       ``(a) Finality.--The appellate review of records of trial 
     provided by this chapter, 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 are binding upon all departments, courts, 
     agencies, and officers of the United States, subject only to 
     authority of the President.
       ``(b) Provisions of Chapter Sole Basis for Review of 
     Military Commission Procedures and Actions.--Except as 
     otherwise provided in this chapter, and notwithstanding any 
     other law (including section 2241 of title 28, United States 
     Code, 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 convened under this section, including 
     challenges to the lawfulness of the procedures of military 
     commissions under this chapter.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950p. Substantive offenses.
``950q. Principals.
``950r. Accessory after the fact.
``950s. Conviction of lesser offenses.
``950t. Attempts.
``950u. Solicitation.
``950v. Crimes triable by military commission.
``950w. Perjury and obstruction of justice.
``950x. Contempt.

     ``Sec. 950p. Substantive offenses generally

       ``(a) Purpose.--The following provisions codify offenses 
     that have traditionally been triable by military commissions. 
     This Act does not establish new crimes that did not exist 
     before its establishment, but rather codifies those crimes 
     for trial by military commission.
       ``(b) Effect.--Because these provisions are declarative of 
     existing law, they do not preclude trial for crimes that 
     occurred prior to their effective date.

     ``Sec. 950q. Principals

       ``Any person is punishable as a principal under this 
     chapter who--
       ``(1) commits an offense punishable by this chapter, or 
     aids, abets, counsels, commands, or procures its commission; 
     or
       ``(2) causes an act to be done which if directly performed 
     by him would be punishable by this chapter; or
       ``(3) is a superior commander who, with regard to acts 
     punishable under this chapter, knew, had reason to know, or 
     should have known, that a subordinate was about to commit 
     such acts or had done so and the superior failed to take the 
     necessary and reasonable measures to prevent such acts or 
     to punish the perpetrators thereof.

     ``Sec. 950r. Accessory after the fact

       ``Any person subject to this chapter who, knowing that an 
     offense punishable by this chapter has been committed, 
     receives, comforts, or assists the offender in order to 
     hinder or prevent his apprehension, trial, or punishment 
     shall be punished as a military commission may direct.

     ``Sec. 950s. Conviction of lesser offenses

       ``An accused may be found guilty of an offense necessarily 
     included in the offense charged or of an attempt to commit 
     either the offense charged or an offense necessarily included 
     therein.

     ``Sec. 950t. Attempts

       ``(a) In General.--Any person subject to this chapter who 
     attempts to commit any offense punishable by this Act shall 
     be punished as a military commission may direct.
       ``(b) Scope of Offense.--An act, done with specific intent 
     to commit an offense under this chapter, amounting to more 
     than mere preparation and tending, even though failing, to 
     effect its commission, is an attempt to commit that offense.
       ``(c) Effect of Consummation.--Any person subject to this 
     chapter may be convicted of an attempt to commit an offense 
     although it appears on the trial that the offense was 
     consummated.

     ``Sec. 950u. Solicitation

       ``Any person subject to this chapter who solicits or 
     advises another or others to commit one or more substantive 
     offenses triable by military commission 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 may direct.

     ``Sec. 950v. Crimes triable by military commission

       ``(a) Definitions and Construction.--(1) For purposes of 
     this chapter, the term `military objective' refers to 
     combatants and those objects during an armed conflict which, 
     by their nature, location, purpose, or use, effectively 
     contribute to the opposing force's war-fighting or war-
     sustaining capability 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 the attack.
       ``(2) For purposes of this section only, `protected person' 
     refers to 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 hors de 
     combat by sickness, wounds, or detention, and military 
     medical or religious personnel.
       ``(3) For purposes of this chapter, the term `protected 
     property' refers to property specifically protected by the 
     law of war such as buildings dedicated to religion, 
     education, art, science or charitable purposes, historic 
     monuments, hospitals, or places where the sick and wounded 
     are collected, provided they are not being used for military 
     purposes or are not otherwise military objectives. Such 
     property would include objects properly identified by one of 
     the distinctive emblems of the Geneva Conventions but does 
     not include all civilian property.
       ``(4) The intent required for offenses (1), (2), (3), (4) 
     and (12) under subsection (b) precludes their applicability 
     with regard to collateral damage or to death, damage, or 
     injury incident to a lawful attack.
       ``(b) Offenses.--The following enumerated offenses, when 
     committed in the context of and associated with armed 
     conflict, shall be triable by military commission under this 
     chapter at any time without limitation--
       ``(1) Murder of Protected Persons.--Any person who 
     intentionally kills one or more protected persons is guilty 
     of the offense of intentionally killing protected persons 
     and shall be subject to whatever punishment the commission 
     may direct, including the penalty of death.
       ``(2) Attacking civilians.--Any person who intentionally 
     engages in an attack upon a civilian population as such or 
     individual civilians not taking active part in hostilities is 
     guilty of the offense of attacking civilians and shall be 
     subject to whatever punishment the commission may direct, 
     including, if death results to one or more of the victims, 
     the penalty of death.
       ``(3) Attacking civilian objects.--Any person who 
     intentionally engages in an attack upon civilian objects 
     (property that is not a military objective) shall be guilty 
     of the offense of attacking civilian objects and shall be 
     subject to whatever punishment the commission may direct.
       ``(4) Attacking Protected Property.--Any person who 
     intentionally engages in an attack upon protected property 
     shall be guilty of the offense of attacking protected 
     property and shall be subject to whatever punishment the 
     commission may direct.
       ``(5) Pillaging.--Any person 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 guilty of the offense of pillaging and shall be subject to 
     whatever punishment the commission may direct.
       ``(6) Denying quarter.--Any person who, with effective 
     command or control over subordinate groups, declares, orders, 
     or otherwise indicates to those forces that there shall be no 
     survivors or surrender accepted, with the intent therefore to 
     threaten an adversary or to conduct hostilities such that 
     there would be no survivors or surrender accepted, shall be 
     guilty of denying quarter and shall be subject to whatever 
     punishment the commission may direct.
       ``(7) Taking hostages.--Any 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, shall be guilty of the offense of 
     taking hostages and shall be subject to whatever punishment 
     the commission may direct, including, if death results to one 
     or more of the victims, the penalty of death.
       ``(8) Employing poison or analogous weapons.--Any person 
     who intentionally, as a method of warfare, employs a 
     substance or a 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 guilty of employing poison or 
     analogous weapons and shall be subject to whatever punishment 
     the commission may direct, including, if death results to one 
     or more of the victims, the penalty of death.
       ``(9) Using protected persons as shields.--Any person 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 guilty of the offense of using protected persons as 
     shields and shall be subject to whatever punishment the 
     commission may direct, including, if death results to one or 
     more of the victims, the penalty of death.

[[Page S9121]]

       ``(10) Using protected property as shields.--Any person who 
     positions, or otherwise takes advantage of the location of, 
     protected property under the law of war with the intent to 
     shield a military objective from attack or to shield, favor, 
     or impede military operations, shall be guilty of the offense 
     of using protected property as shields and shall be subject 
     to whatever punishment the commission may direct.
       ``(11) Torture.--Any person 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 guilty of 
     torture and subject to whatever punishment the commission may 
     direct, including, if death results to one or more of the 
     victims, the penalty of death. `Severe mental pain or 
     suffering' has the meaning provided in 18 U.S.C. 2340(2).
       ``(12) Cruel or inhuman treatment.--Any person who commits 
     an act intended to inflict severe physical or mental pain or 
     suffering (other than pain or suffering incidental to lawful 
     sanctions), including severe physical abuse, upon another 
     person within his custody or physical control shall be guilty 
     of cruel or inhuman treatment and subject to whatever 
     punishment the commission may direct, including, if death 
     results to one or more of the victims, the penalty of death. 
     `Severe mental pain or suffering' has the meaning provided in 
     18 U.S.C. 2340(2).
       ``(13) Intentionally causing serious bodily injury.--Any 
     person who intentionally causes serious bodily injury to one 
     or more persons, including lawful combatants, in violation of 
     the law of war shall be guilty of the offense of causing 
     serious bodily injury and shall be subject to whatever 
     punishment the commission may direct, including, if death 
     results to one or more of the victims, the penalty of death. 
     `Serious bodily injury' has the meaning provided in 18 U.S.C. 
     113(b)(2).
       ``(14) Mutilating or maiming.--Any person who intentionally 
     injures one or more protected persons, 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, shall be guilty of the 
     offense of mutilation or maiming and shall be subject to 
     whatever punishment the commission may direct, including, if 
     death results to one or more of the victims, the penalty of 
     death.
       ``(15) Murder in violation of the law of war.--Any person 
     who intentionally kills one or more persons, including lawful 
     combatants, in violation of the law of war shall be guilty of 
     the offense of murder in violation of the law of war and 
     shall be subject to whatever punishment the commission may 
     direct, including the penalty of death.
       ``(16) Destruction of property in violation of the law of 
     war.--Any person who intentionally destroys property 
     belonging to another person in violation of the law of war 
     shall be guilty of the offense of destruction of property in 
     violation of the law of war and shall be subject to whatever 
     punishment the commission may direct.
       ``(17) Using treachery or perfidy.--Any person 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 guilty of using treachery 
     or perfidy and shall be subject to whatever punishment the 
     commission may direct.
       ``(18) Improperly Using a Flag of Truce.--Any person who 
     uses a flag of truce to feign an intention to negotiate, 
     surrender, or otherwise to suspend hostilities when there is 
     no such intention, shall be guilty of improperly using a flag 
     of truce and shall be subject to whatever punishment the 
     commission may direct.
       ``(19) Improperly Using a Distinctive Emblem.--Any person 
     who intentilly uses a distinctive emblem recognized by the 
     law of war for combatant purposes in a manner prohibited by 
     the law of waf shall be guilty of improperly using a 
     distinctive emblem and shall be subject to whatever 
     punishment the commission may direct.
       (20) Potentionally Mistreating a Dead Body.--Any person who 
     intentionally mistreats the body of a dead person, without 
     justification by legitimate military necessary, shall be 
     guilty of the offense of mistreating a dead body and shall be 
     subject to whatever punishment the commission may direct.
       (21) Rape.--Any person 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 guilty of the offense of rape and 
     shall be subject to whatever punishment the commission may 
     direct.
       ``(22) Hijacking or Hazarding a Vessel or Aircraft.--Any 
     person subject to this chapter who intentionally seizes, 
     exercises unauthorized control over, or endangers the safe 
     navigation of, a vessel or aircraft that was not a legitimate 
     military target is guilty of the offense of hijacking or 
     hazarding a vessel or aircraft and shall be subject to 
     whatever punishment the commission may direct, including, if 
     death results to one or more of the victims, the penalty of 
     death.
       ``(23) Terrorism.--Any person subject to this chapter who 
     intentionally kills or inflicts great bodily harm on one or 
     more 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 guilty of the offense of 
     terrorism and shall be subject to whatever punishment the 
     commission may direct, including, if death results to one or 
     more of the victims, penalty of death.
       ``(24) Providing Material Support for Terrorism.--Any 
     person 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 defined in subsection 
     (b)(23) of this section), or who intentionally provides 
     material support or resources to an international terrorist 
     organization engage in hostilities against the United States, 
     knowing that such organization has engaged or engages in 
     terrorism as defined in subsection (b)(23) of this section), 
     shall be guilty of the offense of providing material support 
     for terrorism and shall be subject to whatever punishment the 
     commission may direct. The term `material support or 
     resources' has the meaning provided in 18 U.S.C. 2339A(b).
       ``(25) Wrongfully aiding the enemy.--Any person who, in 
     breach of an allegiance or duty to the United States, 
     knowingly and intentionally aids an enemy of the United 
     States or one its cobelligerents shall be guilty of the 
     offense of wrongfully aiding the enemy and shall be subject 
     to whatever phmthe commission may direct.
       ``(26) Spying.--Any person who, 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 certain 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 its co-belligerents, shall be guilty of the offense 
     of spying and shall be subject to whatever punishment the 
     commission may direct, including the penalty of death.
       ``(27) Conspiracy.--Any person who conspires to commit one 
     or more substantive offenses triable under this section, and 
     who knowingly does any overt act to effect the object of the 
     conspiracy, shall be guilty of conspiracy and shall be 
     subject to whatever punishment the commission may direct, 
     including, if death results to one or more of the victims, 
     the penalty of death.

     ``Sec. 950w. Perjury and obstruction of justice

       ``The military commissions also may try offenses and impose 
     punishments for perjury, false testimony, or obstruction of 
     justice related to military commissions.

     ``Sec. 950x. Contempt

       ``A military commission 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.''.
       (2) Tables of chapters amendments.--The tables of chapters 
     at the beginning of subtitle A and part II of subtitle A of 
     title 10, United States Code, are each amended by inserting 
     after the item relating to chapter 47 the following new item:

                   ``CHAPTER 47A--MILITARY COMMISIONS

                   ``SUBCHAPTER I--GENERAL PROVISIONS

             ``SUBCHAPTER II--COMPOSITION OF COURTS-MARTIAL

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

                       ``SUBCHAPTER V--SENTENCES

     ``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY 
                              COMMISSIONS

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

       (b) Submittal of Procedures to Congress.--
       (1) Submittal of procedures.--Not later than 90 days after 
     the date of the enactment of this Act, the Secretary shall 
     submit to the Committees on Armed Forces of the Senate and 
     the House of Representatives a report setting forth the 
     procedures for military commissions prescribed under Chapter 
     47A of title 10, United States Code (as added by subsection 
     (a)).
       (2) Submittal of modifications.--Not later than 60 days 
     before the date on which any proposed modification of the 
     procedures described in paragraph (1) shall go into effect, 
     the Secretary shall submit to the committees of Congress 
     referred to in that paragraph a report describing such 
     modifications.

     SEC. 5. JUDICIAL REVIEW.

       Section 2241 of title 28, United States Code, is amended by 
     replacing subsection (e) with the following:
       ``(e) Except as provided for in this subsection, and 
     notwithstanding any other law, no court, justice, or judge 
     shall have jurisdiction to hear or consider any claim or 
     cause of action, including an application for a writ of 
     habeas corpus, pending on or filed after the date of 
     enactment of this Act, against the United States or its 
     agents, brought by or on behalf of any alien detained by the 
     United States as an unlawful enemy combatant, relating to any 
     aspect of the alien's detention, transfer, treatment, or 
     conditions of confinement:
       ``(1) Combatant status review tribunals. 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

[[Page S9122]]

     Review Tribunal. The scope of such review is defined in 
     section 1005(e)(2) of the Detainee Treatment Act of 2005. If 
     the Court grants a detainee's petition for review, the 
     Department of Defense may conduct a new Combatant Status 
     Review Tribunal.
       ``(2) Military commissions.--Review shall be had only of 
     final judgments of military commissions as provided for 
     pursuant to section 247 of the Military Commissions Act of 
     2006.
       ``(3) Information considered.--The court may consider 
     classified information submitted in camera and ex parte in 
     making any determination under this section.''.

     SEC. 6. SATISFACTION OF TREATY OBLIGATIONS.

        (a) In general.--Satisfaction of the prohibitions against 
     cruel, inhuman, and degrading treatment set forth in Section 
     1003 of the Detainee Treatment Act of 2005 (title X of Public 
     Law 109-148; 119 Stat. 2739; 42 U.S.C. 2000dd) shall fully 
     satisfy United States obligations with respect to the 
     standards for detention and treatment established by 
     section 1 of common Article 3 of the Geneva Conventions, 
     with the exception of the obligations imposed by 
     subsections 1 (b) and 1 (d) of such Article.
       (b) Rights Not Judicially Enforceable.--
       (1)  In general. No person in any habeas action or any 
     other action may invoke the Geneva Conventions or any 
     protocols thereto as a source of rights; whether directly or 
     indirectly, for any purpose in any court of the United States 
     or its States or territories.
       (2) Construction.--Paragraph (1) may not be construed to 
     affect the obligations of the United States under the Geneva 
     Conventions.
       (c) Geneva Conventions Defined. In this section, the term 
     ``Geneva Conventions'' means the international conventions 
     signed at Geneva on August 12, 1949, including common Article 
     3.

     SEC. 7. WAR CRIMES ACT AMENDMENT.

       Section 2441 of title 18, United States Code is amended by 
     replacing subsection (c)(3) with the following:
       ``(3) which constitutes any of the following serious 
     violations of common Article 3 of the international 
     conventions signed at Geneva 12 August 1949, when committed 
     in the context of and in association with an armed conflict 
     not of an international character--
       ``(1)  Torture.--Any 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, shall be guilty of a violation of this 
     subsection. `Severe mental pain or suffering' has the meaning 
     provided in 18 U.S.C. Sec. 2340(2).
       ``(2) Cruel or inhuman treatment.--Any person who commits, 
     or conspires or attempts to commit, an act intended to 
     inflict severe physical or mental pain or suffering (other 
     than pain or suffering incidental to lawful sanctions), 
     including severe physical abuse, upon another person within 
     his custody or physical control shall be guilty of a 
     violation of this subsection. `Severe mental pain or 
     suffering' has the meaning provided in 18 U.S.C. 
     Sec. 2340(2).
       ``(3) Performing biological experiments.--Any 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 purpose and in so 
     doing endangers the body or health of such person or persons 
     shall be guilty of a violation of this subsection
       ``(4) Murder.--Any 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 section, one or more persons taking no 
     active part in the hostilities, including those placed hors 
     de combat by sickness, wounds, detention, or any other cause, 
     shall be guilty of a violation of this subsection. The intent 
     required for this offense precludes its applicability with 
     regard to collateral damage or to death, damage, or injury 
     incident to a lawful attack.
       ``(5) Mutilation or maiming.--Any 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 section, one or more 
     persons taking no active part in the hostilities, including 
     those placed hors de 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, shall be guilty of a violation of 
     this subsection. The intent required for this offense 
     precludes its applicability with regard to collateral damage 
     or to death, damage, or injury incident to a lawful attack.
       ``(6) Intentionally causing great suffering or serious 
     injury.--Any person who intentionally causes, or conspires or 
     attempts to cause, serious, bodily injury to one or more 
     persons taking no active part in the hostilities, including 
     those placed hors de combat by sickness, wounds, detention, 
     or any other cause, shall be guilty of a violation of this 
     subsection. The intent required for this offense precludes 
     its applicability with regard to collateral damage or to 
     death, damage, or injury incident to a lawful attack. 
     `Serious bodily injury' has the meaning provided in 18 U.S.C. 
     Sec. 113(b)(2).
       ``(7) Rape.--Any 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 
     shall be guilty of a violation of this subsection.
       ``(8) Sexual assault or abuse.--Any 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, shall be guilty of 
     a violation of this subsection. For purposes of this offense, 
     `sexual contact' has the meaning provided in 18 U.S.C. 
     Sec. 2246(3).
       ``(9) Taking hostages.--Any 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, shall be guilty of a violation 
     of this subsection. Any person who attempts to engage or 
     conspires to engage in this offense shall also be guilty 
     under this subsection.''.

     SEC. 8. CONFORMING AMENDMENTS.

       (a) Section 1004(b) of the Detainee Treatment Act of 2005 
     (10 U.S.C. Sec. 801 note). is amended to conform with this 
     Act as follows--
       (1) by replacing ``may provide'' with ``shall provide''; 
     and
       (2) by adding ``or investigation'' after ``criminal 
     prosecution''; and
       (3) by adding ``whether before United States courts or 
     agencies, foreign courts or agencies, or international courts 
     or agencies,'' after ``described in that subsection'';
       (b) Section 1005 of the Detainee Treatment Act of 2005 (10 
     U.S.C. Sec. 801 note) is amended to conform with this Act as 
     follows--
       (1) by striking subsection (e)(3)(B) and renumbering 
     subsections (e)(3)(C) and (e)(3)(D) as subsections (e)(3)(B) 
     and (e)(3)(C), respectively; and
       (2) in subsection (e)(3)(A), by striking ``pursuant to 
     Military Commission Order No. 1, August 31, 2005 (or any 
     successor military order)'' and inserting ``by a military 
     commission under chapter 47a of title 10''; and
       (3) in former subsection (e)(3)(C)(i), by striking 
     ``pursuant to the military order'' and inserting ``by a 
     military commission''; and
       (4) in former subsection (e)(3)(C)(ii), by striking 
     ``pursuant to such military order'' and inserting ``by such a 
     military commission''; and
       (5) in former subsection (e)(3)(D)(i) by striking 
     ``specified in the military order'' and inserting ``specified 
     for a military commission''; and
       (6) and in former subsection (e)(3)(C)(i), by striking ``at 
     Guantanamo Bay, Cuba''; and
       (7) in former subsection (e)(2)(b)(i) by replacing ``the 
     Department of Defense at Guantanamo Bay, Cuba'' with ``United 
     States''.
       (c) Section 802 of title 10, United States Code, is amended 
     to conform with this Act by adding, ``(a)(13) Lawful enemy 
     combatants who violate the law of war.''
       (d) Section 821 of title 10, United States Code, is amended 
     to conform with this Act by striking the phrase ``by statute 
     or the law of war''.
       (e) Section 836 of title 10, United States Code, is amended 
     to conform with this Act as follows--in subsection (a), by 
     replacing ``military commissions and other military 
     tribunals'' with ``and other military tribunals (excluding 
     military commissions)''.

     SEC. 9. RETROACTIVE APPLICATION.

       This Act shall take effect on the date of the enactment of 
     this Act and shall apply retroactively, including to any 
     aspect of the detention, treatment, or trial of any person 
     detained at any time since September 11, 2001, and to any 
     claim or cause of action pending on or after the date of the 
     enactment of this Act.

     SEC. 10. SEVERABILITY.

       If any provision of this Act, or the application of a 
     provision to any person or circumstance, is held to be 
     unconstitutional, the remainder of this Act, and the 
     application of the provisions to any other person or 
     circumstance, shall not be affected thereby.
                                 ______