[Congressional Record Volume 152, Number 120 (Friday, September 22, 2006)]
[Senate]
[Pages S10017-S10033]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCONNELL (for himself and Mr. Frist):
  S. 3929. A bill to authorize military commissions to bring terrorists 
to justice, to strengthen and modernize terrorist surveillance 
capabilities, and for other purposes; read the first time.
  Mr. McCONNELL. Mr. President, I ask unanimous consent that the text 
of the bill be printed in the Record.
  There being no objection, the text of the bill was ordered to be 
printed in the Record, as follows:

                                S. 3929

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

                     TITLE I--MILITARY COMMISSIONS

     SECTION 101. SHORT TITLE.

       This title may be cited as the ``Military Commissions Act 
     of 2006''.

     SEC. 102. FINDINGS.

       Congress makes the following findings:
       (1) The Constitution of the United States grants to 
     Congress the power ``To define and punish . . . Offenses 
     against the Law of Nations'', as well as the power ``To 
     declare War . . . To raise and support Armies . . . [and] To 
     provide and maintain a Navy''.
       (2) The military commission is the traditional tribunal for 
     the trial of persons engaged in hostilities for violations of 
     the law of war.
       (3) Congress has, in the past, both authorized the use of 
     military commission by statute and recognized the existence 
     and authority of military commissions.
       (4) Military commissions have been convened both by the 
     President and by military commanders in the field to try 
     offenses against the law of war.
       (5) It is in the national interest for Congress to exercise 
     its authority under the Constitution to enact legislation 
     authorizing and regulating the use of military commissions to 
     try and punish violations of the law of war.

     SEC. 103. AUTHORIZATION FOR MILITARY COMMISSIONS.

       (a) In General.--The President is authorized to establish 
     military commissions for the trial of alien unlawful enemy 
     combatants engaged in hostilities against the United States 
     for violations of the law of war and other offenses 
     specifically made triable by military commission as provided 
     in chapter 47 of title 10, United States Code, and chapter 
     47A of title 10, United States Code (as enacted by this Act).
       (b) Construction.--The authority in subsection (a) may not 
     be construed to alter or limit the authority of the President 
     under the Constitution and laws of the United States to 
     establish military commissions for areas declared to be under 
     martial law or in occupied territories should circumstances 
     so require.
       (c) Scope of Punishment Authority.--A military commission 
     established pursuant to subsection (a) shall have authority 
     to impose upon any person found guilty under a proceeding 
     under chapter 47A of title 10, United States Code (as so 
     enacted), a sentence that is appropriate for the offense or 
     offenses for which there is a finding of guilt, including a 
     sentence of death if authorized under such chapter, 
     imprisonment for life or a term of years, payment of a fine 
     or restitution, or such other lawful punishment or condition 
     of punishment as the military commission shall direct.
       (d) Execution of Punishment.--The Secretary of Defense is 
     authorized to carry out a sentence of punishment imposed by a 
     military commission established pursuant to subsection (a) in 
     accordance with such procedures as the Secretary may 
     prescribe.
       (e) Annual Report on Trials by Military Commissions.--
       (1) Annual report required.--Not later than December 31 
     each year, the Secretary of Defense shall submit to the 
     Committees on Armed Services of the Senate and the House of 
     Representatives a report on any trials conducted by military 
     commissions established pursuant to subsection (a) during 
     such year.
       (2) Form.--Each report under this subsection shall be 
     submitted in unclassified form, but may include a classified 
     annex.

     SEC. 104. MILITARY 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......................................................Sec. 
``I. General Provisions..........................................948a. 
``II. Composition of Military Commissions........................948h. 
``III. Pre-Trial Procedure.......................................948q. 
``IV. Trial Procedure............................................949a. 
``V. Sentences...................................................949s. 
``VI. Post-Trial Procedure and Review of Military Commissions....950a. 
``VII. Punitive Matters..........................................950aa.

                   ``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) Lawful enemy combatant.--The term `lawful enemy 
     combatant' means an individual who is--
       ``(A) a member of the regular forces of a State party 
     engaged in hostilities against the United States;
       ``(B) a member of a militia, volunteer corps, or organized 
     resistance movement belonging to a State party engaged in 
     such hostilities, which are under responsible command, wear a 
     fixed distinctive sign recognizable at a distance, carry 
     their arms openly, and abide by the law of war; or
       ``(C) a member of a regular armed force who professes 
     allegiance to a government engaged in such hostilities, but 
     not recognized by the United States.
       ``(4) Unlawful enemy combatant.--The term `unlawful enemy 
     combatant' means an individual engaged in hostilities against 
     the United States who is not a lawful enemy combatant.

     ``Sec. 948b. Military commissions generally

       ``(a) Purpose.--This chapter establishes procedures 
     governing the use of military commissions to try alien 
     unlawful enemy combatants engaged in hostilities against the 
     United States for violations of the law of war and other 
     offenses triable by military commission.
       ``(b) Construction of Provisions.--The procedures for 
     military commissions set forth in this chapter are based upon 
     the procedures for trial by general courts-martial under 
     chapter 47 of this title (the Uniform Code of Military 
     Justice). Chapter 47 of this title does not, by its terms, 
     apply to trial by military commission except as specifically 
     provided therein or in this chapter, and many of the 
     provisions of chapter 47 of this title are by their terms 
     inapplicable to military commissions. The judicial 
     construction and application of chapter 47 of this title is 
     therefore not binding on military commissions established 
     under this chapter.
       ``(c) Inapplicability of Certain Provisions.--(1) The 
     following provisions of this title shall not apply to trial 
     by military commission under this chapter:
       ``(A) Section 810 (article 10 of the Uniform Code of 
     Military Justice), relating to speedy trial, including any 
     rule of courts-martial relating to speedy trial.
       ``(B) Sections 831(a), (b), and (d) (articles 31(a), (b), 
     and (d) of the Uniform Code of Military Justice), relating to 
     compulsory self-incrimination.
       ``(C) Section 832 (article 32 of the Uniform Code of 
     Military Justice), relating to pretrial investigation.
       ``(2) Other provisions of chapter 47 of this title shall 
     apply to trial by military commission under this chapter only 
     to the extent provided by the terms of such provisions or by 
     this chapter.
       ``(d) Status of Military Commissions Under Common Article 
     3.--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.
       ``(e) Treatment of Rulings and Precedents.--The findings, 
     holdings, interpretations, and other precedents of military 
     commissions under this chapter may not be introduced or 
     considered in any hearing, trial, or other proceeding of a 
     court-martial convened under chapter 47 of this title. The 
     findings, holdings, interpretations, and other

[[Page S10018]]

     precedents of military commissions under this chapter may not 
     form the basis of any holding, decision, or other 
     determination of a court-martial convened under that chapter.
       ``(f) Geneva Conventions Not Establishing Source of 
     Rights.--No alien enemy unlawful combatant subject to trial 
     by military commission under this chapter may invoke the 
     Geneva Conventions as a source of rights at his trial by 
     military commission.

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

       ``Any alien unlawful enemy combatant engaged in hostilities 
     or having supported hostilities against the United States is 
     subject to trial by military commission as set forth in this 
     chapter.

     ``Sec. 948d. Jurisdiction of military commissions

       ``(a) Jurisdiction.--A military commission under this 
     chapter shall have jurisdiction to try any offense made 
     punishable by this chapter, sections 904 and 906 of this 
     title (articles 104 and 106 of the Uniform Code of Military 
     Justice), or the law of war when committed by an alien 
     unlawful enemy combatant before, on, or after September 11, 
     2001.
       ``(b) Lawful Enemy Combatants.--Military commissions under 
     this chapter shall not have jurisdiction over lawful enemy 
     combatants. Lawful enemy combatants who violate the law of 
     war are subject to chapter 47 of this title. Courts-martial 
     established under that chapter shall have jurisdiction to try 
     a lawful enemy combatant for any offense made punishable 
     under this chapter.
       ``(c) Punishments.--A miliary commission under this chapter 
     may, under such limitations as the President may prescribe, 
     adjudge any punishment not forbidden by this chapter, 
     including the penalty of death when authorized under this 
     chapter, chapter 47 of this title, or the law of war.

          ``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS

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

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

       ``Military commissions under this chapter may be convened 
     by the Secretary of Defense or by any officer or official of 
     the United States designated by the Secretary for that 
     purpose.

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

       ``(a) In General.--Any commissioned officer of the armed 
     forces on active duty is eligible to serve on a military 
     commission under this chapter, including commissioned 
     officers of the reserve components of the armed forces on 
     active duty, commissioned officers of the National Guard on 
     active duty in Federal service, or retired commissioned 
     officers recalled to active duty.
       ``(b) Detail of Members.--When convening a military 
     commission under this chapter, the convening authority shall 
     detail as members thereof such members of the armed forces 
     eligible under subsection (a) who, as in the opinion of the 
     convening authority, are best qualified for the duty by 
     reason of age, education, training, experience, length of 
     service, and judicial temperament. No member of an armed 
     force is eligible to serve as a member of a military 
     commission when such member is the accuser or a witness for 
     the prosecution or has acted as an investigator or counsel in 
     the same case.
       ``(c) Excuse of Members.--Before a military commission 
     under this chapter is assembled for the trial of a case, the 
     convening authority may excuse a member from participating in 
     the case.

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

       ``(a) Detail of Military Judge.--A military judge shall be 
     detailed to each military commission under this chapter. The 
     Secretary of Defense shall prescribe regulations providing 
     for the manner in which military judges are so detailed to 
     military commissions. The military judge shall preside over 
     each military commission to which he has been detailed.
       ``(b) 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 under section 826 of this title (article 
     26 of the Uniform Code of Military Justice) as a military 
     judge in general courts-martial by the Judge Advocate General 
     of the armed force of which such military judge is a member.
       ``(c) Ineligibility of Certain Individuals.--No person is 
     eligible to act as military judge in a case of a military 
     commission under this chapter if he is the accuser or a 
     witness or has acted as investigator or a counsel in the same 
     case.
       ``(d) Consultation With Members; Ineligibility to Vote.--A 
     military judge detailed to a military commission under this 
     chapter may not consult with the members except in the 
     presence of the accused (except as otherwise provided in 
     section 949d of this title), trial counsel, and defense 
     counsel, nor may he vote with the members.
       ``(e) Other Duties.--A commissioned officer who is 
     certified to be qualified for duty as a military judge of a 
     military commission under this chapter may perform such other 
     duties as are assigned to him by or with the approval of the 
     Judge Advocate General of the armed force of which such 
     officer is a member or the designee of such Judge Advocate 
     General.
       ``(f) Prohibition on Evaluation of Fitness by Convening 
     Authority.--The convening authority of a military commission 
     under this chapter shall not prepare or review any report 
     concerning the effectiveness, fitness, or efficiency of a 
     military judge detailed to the military commission which 
     relates to his performance of duty as a military judge on the 
     military commission.

     ``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 military 
     commission under this chapter.
       ``(2) Assistant trial counsel and assistant and associate 
     defense counsel may be detailed for a military commission 
     under this chapter.
       ``(3) Military defense counsel for a military commission 
     under this chapter shall be detailed as soon as practicable 
     after the swearing of charges.
       ``(4) The Secretary of Defense shall prescribe regulations 
     providing for the manner in which trial counsel and military 
     defense counsel are detailed for military commissions under 
     this chapter and for the persons who are authorized to detail 
     such counsel for such military commissions.
       ``(b) Trial Counsel.--Subject to subsection (e), trial 
     counsel detailed for a military commission under this chapter 
     must be--
       ``(1) a judge advocate (as that term is defined in section 
     801 of this title (article 1 of the Uniform Code of Military 
     Justice)) who is--
       ``(A) a graduate of an accredited law school or is a member 
     of the bar of a Federal court or of the highest court of a 
     State; and
       ``(B) certified as competent to perform duties as trial 
     counsel before general courts-martial by the Judge Advocate 
     General of the armed force of which he is a member; or
       ``(2) a civilian who is--
       ``(A) a member of the bar of a Federal court or of the 
     highest court of a State; and
       ``(B) otherwise qualified to practice before the military 
     commission pursuant to regulations prescribed by the 
     Secretary of Defense.
       ``(c) Military Defense Counsel.--Subject to subsection (e), 
     military defense counsel detailed for a military commission 
     under this chapter must be a judge advocate (as so defined) 
     who is--
       ``(1) a graduate of an accredited law school or is a member 
     of the bar of a Federal court or of the highest court of a 
     State; and
       ``(2) certified as competent to perform duties as defense 
     counsel before general courts-martial by the Judge Advocate 
     General of the armed force of which he is a member.
       ``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The 
     Chief Prosecutor in a military commission under this chapter 
     shall meet the requirements set forth in subsection (b)(1).
       ``(2) The Chief Defense Counsel in a military commission 
     under this chapter shall meet the requirements set forth in 
     subsection (c)(1).
       ``(e) Ineligibility of Certain Individuals.--No person who 
     has acted as an investigator, military judge, or member of a 
     military commission under this chapter in any case may act 
     later as trial counsel or military defense counsel in the 
     same case. No person who has acted for the prosecution before 
     a military commission under this chapter may act later in the 
     same case for the defense, nor may any person who has acted 
     for the defense before a military commission under this 
     chapter act later in the same case for the prosecution.

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

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

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

       ``(a) Number of Members.--(1) A military commission under 
     this chapter shall, except as provided in paragraph (2), have 
     at least five members.

[[Page S10019]]

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

                 ``SUBCHAPTER III--PRE-TRIAL PROCEDURE

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

     ``Sec. 948q. Charges and specifications

       ``(a) Charges and Specifications.--Charges and 
     specifications against an accused in a military commission 
     under this chapter shall be signed by a person subject to 
     chapter 47 of this title under oath before a commissioned 
     officer of the armed forces authorized to administer oaths 
     and shall state--
       ``(1) that the signer has personal knowledge of, or reason 
     to believe, the matters set forth therein; and
       ``(2) that they are true in fact to the best of his 
     knowledge and belief.
       ``(b) 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 or other methods of coercion

       ``(a) In General.--No person shall be required to testify 
     against himself at a proceeding of a military commission 
     under this chapter.
       ``(b) Statements Obtained by Torture.--A statement obtained 
     by use of torture shall not be admissible in a military 
     commission under this chapter, except against a person 
     accused of torture as evidence the statement was made.
       ``(c) Statements Obtained Before Enactment of Detainee 
     Treatment Act of 2005.--A statement obtained before December 
     30, 2005 (the date of the enactment of the Detainee Treatment 
     Act of 2005), in which the degree of coercion is disputed may 
     be admitted only if the military judge finds that--
       ``(1) the totality of the circumstances renders it reliable 
     and possessing sufficient probative value; and
       ``(2) the interests of justice would best be served by 
     admission of the statement into evidence.
       ``(d) Statements Obtained After Enactment of Detainee 
     Treatment Act of 2005.--A statement obtained on or after 
     December 30, 2005 (the date of the enactment of the Detainee 
     Treatment Act of 2005), in which the degree of coercion is 
     disputed may be admitted only if the military judge finds 
     that--
       ``(1) the totality of the circumstances renders it reliable 
     and possessing sufficient probative value;
       ``(2) the interests of justice would best be served by 
     admission of the statement into evidence; and
       ``(3) the interrogation methods used to obtain the 
     statement do not violate the cruel, unusual, or inhumane 
     treatment or punishment prohibited by the Fifth, Eighth, and 
     14th Amendments to the United States Constitution.

     ``Sec. 948s. Service of charges

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

                    ``SUBCHAPTER IV--TRIAL PROCEDURE

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

     ``Sec. 949a. Rules

       ``(a) Procedures and Rules of Evidence.--Pretrial, trial, 
     and post-trial procedures, including elements and modes of 
     proof, for cases triable by military commission under this 
     chapter may be prescribed by the Secretary of Defense. Such 
     procedures may not be contrary to or inconsistent with this 
     chapter. Except as otherwise provided in this chapter or 
     chapter 47 of this title, the procedures and rules of 
     evidence applicable in trials by general courts-martial of 
     the United States shall apply in trials by military 
     commission under this chapter.
       ``(b) Exceptions.--(1) The Secretary of Defense, in 
     consultation with the Attorney General, may make such 
     exceptions in the applicability in trials by military 
     commission under this chapter from the procedures and rules 
     of evidence otherwise applicable in general courts-martial as 
     may be required by the unique circumstances of the conduct of 
     military and intelligence operations during hostilities or by 
     other practical need.
       ``(2) Notwithstanding any exceptions authorized by 
     paragraph (1), the procedures and rules of evidence in trials 
     by military commission under this chapter shall include, at a 
     minimum, the following rights:
       ``(A) To examine and respond to all evidence considered by 
     the military commission on the issue of guilt or innocence 
     and for sentencing.
       ``(B) To be present at all sessions of the military 
     commission (other than those for deliberations or voting), 
     except when excluded under section 949d of this title.
       ``(C) To the assistance of counsel.
       ``(D) To self-representation, if the accused knowingly and 
     competently waives the assistance of counsel, subject to the 
     provisions of paragraph (4).
       ``(E) To the suppression of evidence that is not reliable 
     or probative.
       ``(F) To the suppression of evidence the probative value of 
     which is substantially outweighed by--
       ``(i) the danger of unfair prejudice, confusion of the 
     issues, or misleading the members; or
       ``(ii) considerations of undue delay, waste of time, or 
     needless presentation of cumulative evidence.
       ``(3) In making exceptions in the applicability in trials 
     by military commission under this chapter from the procedures 
     and rules otherwise applicable in general courts-martial, the 
     Secretary of Defense may provide the following:
       ``(A) Evidence seized outside the United States shall not 
     be excluded from trial by military commission on the grounds 
     that the evidence was not seized pursuant to a search warrant 
     or authorization.
       ``(B) A statement of the accused that is otherwise 
     admissible shall not be excluded from trial by military 
     commission on grounds of alleged coercion or compulsory self-
     incrimination so long as the evidence complies with the 
     provisions of section 948r of this title.
       ``(C) Evidence shall be admitted as authentic so long as--
       ``(i) the military judge of the military commission 
     determines that there is sufficient evidence that the 
     evidence is what it is claimed to be; and
       ``(ii) the military judge instructs the members that they 
     may consider any issue as to authentication or identification 
     of evidence in determining the weight, if any, to be given to 
     the evidence.
       ``(D)(i) Except as provided in clause (ii), hearsay 
     evidence not otherwise admissible under the rules of evidence 
     applicable in trial by general courts-martial may be admitted 
     in a trial by military commission if the proponent of the 
     evidence makes known to the adverse party, sufficiently in 
     advance to provide the adverse party with a fair opportunity 
     to meet the evidence, the intention of the proponent to offer 
     the evidence, and the particulars of the evidence (including 
     information on the general circumstances under which the 
     evidence was obtained). The disclosure of evidence under this 
     clause is subject to the requirements and limitations 
     applicable to the disclosure of classified information in 
     section 949j(b) of this title.
       ``(ii) Hearsay evidence not otherwise admissible under the 
     rules of evidence applicable in trial by general courts-
     martial shall not be admitted in a trial by military 
     commission if the party opposing the admission of the 
     evidence demonstrates that the evidence is unreliable or 
     lacking in probative value.
       ``(4)(A) The accused in a military commission under this 
     chapter who exercises the right to self-representation under 
     paragraph (2)(D) shall conform his deportment and the conduct 
     of the defense to the rules of evidence, procedure, and 
     decorum applicable to trials by military commission.
       ``(B) Failure of the accused to conform to the rules 
     described in subparagraph (A) may result in a partial or 
     total revocation by the military judge of the right of self-
     representation under paragraph (2)(D). In such case, the 
     detailed defense counsel of the accused or an appropriately 
     authorized civilian counsel shall perform the functions 
     necessary for the defense.

[[Page S10020]]

       ``(c) Delegation of Authority to Prescribe Regulations.--
     The Secretary of Defense may delegate the authority of the 
     Secretary to prescribe regulations under this chapter.

     ``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 military commission, or any member, military 
     judge, or counsel thereof, with respect to the findings or 
     sentence adjudged by the military commission, or with respect 
     to any other exercises of its or their functions in the 
     conduct of the proceedings.
       ``(2) No person may attempt to coerce or, by any 
     unauthorized means, influence--
       ``(A) the action of a military commission under this 
     chapter, or any member thereof, in reaching the findings or 
     sentence in any case;
       ``(B) the action of any convening, approving, or reviewing 
     authority with respect to their judicial acts; or
       ``(C) the exercise of professional judgment by trial 
     counsel or defense counsel.
       ``(3) The provisions of this subsection shall not apply 
     with respect to--
       ``(A) general instructional or informational courses in 
     military justice if such courses are designed solely for the 
     purpose of instructing members of a command in the 
     substantive and procedural aspects of military commissions; 
     or
       ``(B) statements and instructions given in open proceedings 
     by a military judge or counsel.
       ``(b) Prohibition on Consideration of Actions on Commission 
     in Evaluation of 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 
     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 under this chapter 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 under 
     this chapter as provided in this subsection.
       ``(2) The accused shall be represented by military counsel 
     detailed under section 948k of this title.
       ``(3) The accused may be represented by civilian counsel if 
     retained by the accused, provided that such civilian 
     counsel--
       ``(A) is a United States citizen;
       ``(B) is admitted to the practice of law in a State, 
     district, or possession of the United States, or before a 
     Federal court;
       ``(C) has not been the subject of any sanction of 
     disciplinary action by any court, bar, or other competent 
     governmental authority for relevant misconduct;
       ``(D) has been determined to be eligible for access to 
     information classified at the level Secret or higher; and
       ``(E) has signed a written agreement to comply with all 
     applicable regulations or instructions for counsel, including 
     any rules of court for conduct during the proceedings.
       ``(4) If the accused is represented by civilian counsel, 
     military counsel detailed shall act as associate counsel.
       ``(5) The accused is not entitled to be represented by more 
     than one military counsel. However, the person authorized 
     under regulations prescribed under section 948k of this title 
     to detail counsel, in such person's sole discretion, may 
     detail additional military counsel to represent the accused.
       ``(6) Defense counsel may cross-examine each witness for 
     the prosecution who testifies before a military commission 
     under this chapter.

     ``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 under this chapter, the 
     military judge may call the military commission into session 
     without the presence of the members for the purpose of--
       ``(A) hearing and determining motions raising defenses or 
     objections which are capable of determination without trial 
     of the issues raised by a plea of not guilty;
       ``(B) hearing and ruling upon any matter which may be ruled 
     upon by the military judge under this chapter, whether or not 
     the matter is appropriate for later consideration or decision 
     by the members;
       ``(C) if permitted by regulations prescribed by the 
     Secretary of Defense, receiving the pleas of the accused; and
       ``(D) performing any other procedural function which may be 
     performed by the military judge under this chapter or under 
     rules prescribed pursuant to section 949a of this title and 
     which does not require the presence of the members.
       ``(2) Except as provided in subsections (b), (c), and (d), 
     any proceedings under paragraph (1) shall be conducted in the 
     presence of the accused, defense counsel, and trial counsel, 
     and shall be made part of the record.
       ``(b) Deliberation or Vote of Members.--When the members of 
     a military commission under this chapter deliberate or vote, 
     only the members may be present.
       ``(c) Closure of Proceedings.--(1) The military judge may 
     close to the public all or part of the proceedings of a 
     military commission under this chapter.
       ``(2) The military judge may close to the public all or a 
     portion of the proceedings under paragraph (1) only upon 
     making a specific finding that such closure is necessary to--
       ``(A) protect information the disclosure of which could 
     reasonably be expected to cause damage to the national 
     security, including intelligence or law enforcement sources, 
     methods, or activities; or
       ``(B) ensure the physical safety of individuals.
       ``(3) A finding under paragraph (2) may be based upon a 
     presentation, including a presentation ex parte or in camera, 
     by either trial counsel or defense counsel.
       ``(d) Exclusion of Accused From Certain Proceedings.--The 
     military judge may exclude the accused from any portion of a 
     proceeding upon a determination that, after being warned by 
     the military judge, the accused persists in conduct that 
     justifies exclusion from the courtroom--
       ``(1) to ensure the physical safety of individuals; or
       ``(2) to prevent disruption of the proceedings by the 
     accused.
       ``(e) Protection of Classified Information.--
       ``(1) National security privilege.--(A) Classified 
     information shall be protected and is privileged from 
     disclosure if disclosure would be detrimental to the national 
     security. This rule applies to all stages of the proceedings 
     of military commissions under this chapter.
       ``(B) The privilege referred to in subparagraph (A) may be 
     claimed by the head of the executive or military department 
     or government agency concerned based on a finding by the head 
     of that department or agency that--
       ``(i) the information is properly classified; and
       ``(ii) disclosure would be detrimental to the national 
     security.
       ``(C) A person who may claim the privilege referred to in 
     subparagraph (A) may authorize a representative, witness, or 
     trial counsel to claim the privilege and make the finding 
     described in subparagraph (B) on behalf of such person. The 
     authority of the representative, witness, or trial counsel to 
     do so is presumed in the absence of evidence to the contrary.
       ``(2) Introduction of classified information.--
       ``(A) Alternatives to disclosure.--To protect classified 
     information from disclosure, the military judge, upon motion 
     of trial counsel, shall authorize, to the extent 
     practicable--
       ``(i) the deletion of specified items of classified 
     information from documents to be introduced as evidence 
     before the military commission;
       ``(ii) the substitution of a portion or summary of the 
     information for such classified documents; or
       ``(iii) the substitution of a statement of relevant facts 
     that the classified information would tend to prove.
       ``(B) Protection of sources, methods, or activities.--The 
     military judge, upon motion of trial counsel, shall permit 
     trial counsel to introduce otherwise admissible evidence 
     before the military commission, while protecting from 
     disclosure the sources, methods, or activities by which the 
     United States acquired the evidence if the military judge 
     finds that (i) the sources, methods, or activities by which 
     the United States acquired the evidence are classified, and 
     (ii) the evidence is reliable. The military judge may require 
     trial counsel to present to the military commission and the 
     defense, to the extent practicable and consistent with 
     national security, an unclassified summary of the sources, 
     methods, or activities by which the United States acquired 
     the evidence.
       ``(C) Assertion of national security privilege at trial.--
     During the examination of any witness, trial counsel may 
     object to any question, line of inquiry, or motion to admit 
     evidence that would require the disclosure of classified 
     information. Following such an objection, the military judge 
     shall take suitable action to safeguard such classified 
     information. Such action may include the review of trial 
     counsel's claim of privilege by the military judge in camera 
     and on an ex parte basis, and the delay of proceedings to 
     permit trial counsel to consult with the department or agency 
     concerned as to whether the national security privilege 
     should be asserted.
       ``(3) Consideration of privilege and related materials.--A 
     claim of privilege under this subsection, and any materials 
     submitted in support thereof, shall, upon request of the 
     Government, be considered by the military judge in camera and 
     shall not be disclosed to the accused.
       ``(4) Additional regulations.--The Secretary of Defense may 
     prescribe additional regulations, consistent with this 
     subsection, for the use and protection of classified 
     information during proceedings of military commissions under 
     this chapter. A report on any regulations so prescribed, or 
     modified, shall

[[Page S10021]]

     be submitted to the Committees on Armed Services of the 
     Senate and the House of Representatives not later than 60 
     days before the date on which such regulations or 
     modifications, as the case may be, go into effect.

     ``Sec. 949e. Continuances

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

     ``Sec. 949f. Challenges

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

     ``Sec. 949g. Oaths

       ``(a) In General.--(1) Before performing their respective 
     duties in a military commission under this chapter, military 
     judges, members, trial counsel, defense counsel, reporters, 
     and interpreters shall take an oath to perform their duties 
     faithfully.
       ``(2) The form of the oath required by paragraph (1), the 
     time and place of the taking thereof, the manner of recording 
     thereof, and whether the oath shall be taken for all cases in 
     which duties are to be performed or for a particular case, 
     shall be as provided in regulations prescribed by the 
     Secretary of Defense. The regulations may provide that--
       ``(A) an oath to perform faithfully duties as a military 
     judge, trial counsel, or defense counsel may be taken at any 
     time by any judge advocate or other person certified to be 
     qualified or competent for the duty; and
       ``(B) if such an oath is taken, such oath need not again be 
     taken at the time the judge advocate or other person is 
     detailed to that duty.
       ``(b) Witnesses.--Each witness before a military commission 
     under this chapter shall be examined on oath.
       ``(c) Oath Defined.--In this section, the term `oath' 
     includes an affirmation.

     ``Sec. 949h. Former jeopardy

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

     ``Sec. 949i. Pleas of the accused

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

     ``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 as 
     provided in regulations prescribed by the Secretary of 
     Defense.
       ``(2) Process issued in military commissions under this 
     chapter to compel witnesses to appear and testify and to 
     compel the production of other evidence--
       ``(A) shall be similar to that which courts of the United 
     States having criminal jurisdiction may lawfully issue; and
       ``(B) shall run to any place where the United States shall 
     have jurisdiction thereof.
       ``(b) Protection of Classified Information.--(1) With 
     respect to the discovery obligations of trial counsel under 
     this section, the military judge, upon motion of trial 
     counsel, shall authorize, to the extent practicable--
       ``(A) the deletion of specified items of classified 
     information from documents to be made available to the 
     accused;
       ``(B) the substitution of a portion or summary of the 
     information for such classified documents; or
       ``(C) the substitution of a statement admitting relevant 
     facts that the classified information would tend prove.
       ``(2) The military judge, upon motion of trial counsel, 
     shall authorize trial counsel, in the course of complying 
     with discovery obligations under this section, to protect 
     from disclosure the sources, methods, or activities by which 
     the United States acquired evidence if the military judge 
     finds that the sources, methods, or activities by which the 
     United States acquired such evidence are classified. The 
     military judge may require trial counsel to provide, to the 
     extent practicable, an unclassified summary of the sources, 
     methods, or activities by which the United States acquired 
     such evidence.
       ``(c) Exculpatory Evidence.--(1) As soon as practicable, 
     trial counsel shall disclose to the defense the existence of 
     any evidence known to trial counsel that reasonably tends to 
     exculpate the accused. Where exculpatory evidence is 
     classified, the accused shall be provided with an adequate 
     substitute in accordance with the procedures under subsection 
     (b).
       ``(2) In this subsection, the term `evidence known to trial 
     counsel', in the case of exculpatory evidence, means 
     exculpatory evidence that the prosecution would be required 
     to disclose in a trial by courts-martial under chapter 47 of 
     this title.

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

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

     ``Sec. 949l. Voting and rulings

       ``(a) Vote by Secret Written Ballot.--Voting by members of 
     a military commission under this chapter on the findings and 
     on the sentence shall be by secret written ballot.
       ``(b) Rulings.--(1) The military judge in a military 
     commission under this chapter shall rule upon all questions 
     of law, including the admissibility of evidence and all 
     interlocutory questions arising during the proceedings.
       ``(2) Any ruling made by the military judge upon a question 
     of law or an interlocutory question (other than the factual 
     issue of mental responsibility of the accused) is conclusive 
     and constitutes the ruling of the military commission. 
     However, a military judge may change his ruling at any time 
     during the trial.
       ``(c) Instructions Prior to Vote.--Before a vote is taken 
     of the findings of a military commission under this chapter, 
     the military judge shall, in the presence of the accused and 
     counsel, instruct the members as to the elements of the 
     offense and charge the members--
       ``(1) that the accused must be presumed to be innocent 
     until his guilt is established by legal and competent 
     evidence beyond a reasonable doubt;
       ``(2) that in the case being considered, if there is a 
     reasonable doubt as to the guilt of the accused, the doubt 
     must be resolved in favor of the accused and he must be 
     acquitted;
       ``(3) that, if there is reasonable doubt as to the degree 
     of guilt, the finding must be in a lower degree as to which 
     there is no reasonable doubt; and
       ``(4) that the burden of proof to establish the guilt of 
     the accused beyond a reasonable doubt is upon the United 
     States.

     ``Sec. 949m. Number of votes required

       ``(a) Conviction.--No person may be convicted by a military 
     commission under this chapter of any offense, except as 
     provided in section 949i(b) of this title or by concurrence 
     of two-thirds of the members present at the time the vote is 
     taken.
       ``(b) 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 death by a military 
     commission, except insofar as--

[[Page S10022]]

       ``(A) the penalty of death has been expressly authorized 
     under this chapter, chapter 47 of this title, or the law of 
     war for an offense of which the accused has been found 
     guilty;
       ``(B) trial counsel expressly sought the penalty of death 
     by filing an appropriate notice in advance of trial;
       ``(C) the accused was convicted of the offense by the 
     concurrence of all the members present at the time the vote 
     is taken; and
       ``(D) all members present at the time the vote was taken 
     concurred in the sentence of death.
       ``(3) No person may be sentenced to life imprisonment, or 
     to confinement for more than 10 years, by a military 
     commission under this chapter except by the concurrence of 
     three-fourths of the members present at the time the vote is 
     taken.
       ``(c) Number of Members Required for Penalty of Death.--(1) 
     Except as provided in paragraph (2), in a case in which the 
     penalty of death is sought, the number of members of the 
     military commission under this chapter shall be not less than 
     12 members.
       ``(2) In any case described in paragraph (1) in which 12 
     members are not reasonably available for a military 
     commission because of physical conditions or military 
     exigencies, the convening authority shall specify a lesser 
     number of members for the military commission (but not fewer 
     than 5 members), and the military commission may be 
     assembled, and the trial held, with not less than the number 
     of members so specified. In any such case, the convening 
     authority shall make a detailed written statement, to be 
     appended to the record, stating why a greater number of 
     members were not reasonably available.

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

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

     ``Sec. 949o. Record of trial

       ``(a) Record; Authentication.--Each military commission 
     under this chapter shall keep a separate, verbatim, record of 
     the proceedings in each case brought before it, and the 
     record shall be authenticated by the signature of the 
     military judge. If the record cannot be authenticated by the 
     military judge by reason of his death, disability, or 
     absence, it shall be authenticated by the signature of the 
     trial counsel or by a member if the trial counsel is unable 
     to authenticate it by reason of his death, disability, or 
     absence. Where appropriate, and as provided in regulations 
     prescribed by the Secretary of Defense, the record of a 
     military commission under this chapter may contain a 
     classified annex.
       ``(b) Complete Record Required.--A complete record of the 
     proceedings and testimony shall be prepared in every military 
     commission under this chapter.
       ``(c) Provision of Copy to Accused.--A copy of the record 
     of the proceedings of the military commission under this 
     chapter shall be given the accused as soon as it is 
     authenticated. If the record contains classified information, 
     or a classified annex, the accused shall receive a redacted 
     version of the record consistent with the requirements of 
     section 949d(e) of this title. Defense counsel shall have 
     access to the unredacted record, as provided in regulations 
     prescribed by the Secretary of Defense.

                       ``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 
     under this chapter or inflicted under this chapter upon any 
     person subject to this chapter. The use of irons, single or 
     double, except for the purpose of safe custody, is prohibited 
     under this chapter.

     ``Sec. 949t. Maximum limits

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

     ``Sec. 949u. Execution of confinement

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

     ``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.
``950h. Appellate counsel
``950i. Execution of sentence; suspension of sentence.
``950j. Finality of proceedings, findings, and sentences.

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

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

     ``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.--(1) The accused may submit to the convening 
     authority matters for consideration by the convening 
     authority with respect to the findings and the sentence of 
     the military commission under this chapter.
       ``(2)(A) Except as provided in subparagraph (B), a 
     submittal under paragraph (1) shall be made in writing within 
     20 days after accused has been give an authenticated record 
     of trial under section 949o(c) of this title.
       ``(B) If the accused shows that additional time is required 
     for the accused to make a submittal under paragraph (1), the 
     convening authority may, for good cause, extend the 
     applicable period under subparagraph (A) for not more than an 
     additional 20 days.
       ``(3) The accused may waive his right to make a submittal 
     to the convening authority under paragraph (1). Such a waiver 
     shall be made in writing, and may not be revoked. For the 
     purposes of subsection (c)(2), the time within which the 
     accused may make a submittal under this subsection shall be 
     deemed to have expired upon the submittal of a waiver under 
     this paragraph to the convening authority.
       ``(c) Action by Convening Authority.--(1) The authority 
     under this subsection to modify the findings and sentence of 
     a military commission under this chapter is a matter of the 
     sole discretion and prerogative of the convening authority.
       ``(2) The convening authority is not required to take 
     action on the findings of a military commission under this 
     chapter. If the convening authority takes action on the 
     findings, the convening authority may, in his sole 
     discretion, only--
       ``(A) dismiss any charge or specification by setting aside 
     a finding of guilty thereto; or
       ``(B) change a finding of guilty to a charge to a finding 
     of guilty to an offense that is a lesser included offense of 
     the offense stated in the charge.
       ``(3)(A) The convening authority shall take action on the 
     sentence of a military commission under this chapter.
       ``(B) Subject to regulations prescribed by the Secretary of 
     Defense, action under this paragraph may be taken only after 
     consideration of any matters submitted by the accused under 
     subsection (b) or after the time for submitting such matters 
     expires, whichever is earlier.
       ``(C) In taking action under this paragraph, the convening 
     authority may, in his sole discretion, approve, disapprove, 
     commute, or suspend the sentence in whole or in part. The 
     convening authority may not increase a sentence beyond that 
     which is found by the military commission.
       ``(4) The convening authority shall serve on the accused or 
     on defense counsel notice of any action taken by the 
     convening authority under this subsection.
       ``(d) Order of Revision or Rehearing.--(1) Subject to 
     paragraphs (2) and (3), the convening authority of a military 
     commission under this chapter may, in his sole discretion, 
     order a proceeding in revision or a rehearing.
       ``(2)(A) Except as provided in subparagraph (B), a 
     proceeding in revision may be ordered by the convening 
     authority if--
       ``(i) there is an apparent error or omission in the record; 
     or
       ``(ii) the record shows improper or inconsistent action by 
     the military commission with respect to the findings or 
     sentence that can be rectified without material prejudice to 
     the substantial rights of the accused.
       ``(B) In no case may a proceeding in revision--
       ``(i) reconsider a finding of not guilty of a specification 
     or a ruling which amounts to a finding of not guilty;
       ``(ii) reconsider a finding of not guilty of any charge, 
     unless there has been a finding of guilty under a 
     specification laid under that charge, which sufficiently 
     alleges a violation; or
       ``(iii) increase the severity of the sentence unless the 
     sentence prescribed for the offense is mandatory.

[[Page S10023]]

       ``(3) A rehearing may be ordered by the convening authority 
     if the convening authority disapproves the findings and 
     sentence and states the reasons for disapproval of the 
     findings. If the convening authority disapproves the finding 
     and sentence and does not order a rehearing, the convening 
     authority shall dismiss the charges. A rehearing as to the 
     findings may not be ordered by the convening authority when 
     there is a lack of sufficient evidence in the record to 
     support the findings. A rehearing as to the sentence may be 
     ordered by the convening authority if the convening authority 
     disapproves the sentence.

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

       ``(a) Waiver of Right of Review.--(1) An accused may file 
     with the convening authority a statement expressly waiving 
     the right of the accused to appellate review by the Court of 
     Military Commission Review under section 950f of this title 
     of the final decision of the military commission under this 
     chapter.
       ``(2) A waiver under paragraph (1) shall be signed by both 
     the accused and a defense counsel.
       ``(3) A waiver under paragraph (1) must be filed, if at 
     all, within 10 days after notice of the action is served on 
     the accused or on defense counsel under section 950b(c)(4) of 
     this title. The convening authority, for good cause, may 
     extend the period for such filing by not more than 30 days.
       ``(b) Withdrawal of Appeal.--Except in a case in which the 
     sentence as approved under section 950b of this title extends 
     to death, the accused may withdraw an appeal at any time.
       ``(c) Effect of Waiver or Withdrawal.--A waiver of the 
     right to appellate review or the withdrawal of an appeal 
     under this section bars review under section 950f 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 under section 950f 
     of this title of any order or ruling of the military judge 
     that--
       ``(A) terminates proceedings of the military commission 
     with respect to a charge or specification;
       ``(B) excludes evidence that is substantial proof of a fact 
     material in the proceeding; or
       ``(C) relates to a matter under subsection (c), (d), or (e) 
     of section 949d of this title.
       ``(2) The United States may not appeal under paragraph (1) 
     an order or ruling that is, or amounts to, a finding of not 
     guilty by the military commission with respect to a charge or 
     specification.
       ``(b) 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 the order or ruling.
       ``(c) Appeal.--An appeal under this section shall be 
     forwarded, by means specified in regulations prescribed the 
     Secretary of Defense, directly to the Court of Military 
     Commission Review. In ruling on an appeal under this section, 
     the Court may act only with respect to matters of law.

     ``Sec. 950e. Rehearings

       ``(a) Composition of Military Commission for Rehearing.--
     Each rehearing under this chapter shall take place before a 
     military commission under this chapter composed of members 
     who were not members of the military commission which first 
     heard the case.
       ``(b) 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 military commission; and
       ``(B) no sentence in excess of or more than the original 
     sentence may be imposed unless--
       ``(i) the sentence is based upon a finding of guilty of an 
     offense not considered upon the merits in the original 
     proceedings; or
       ``(ii) the sentence prescribed for the offense is 
     mandatory.
       ``(2) Upon a rehearing, if the sentence approved after the 
     first military commission was in accordance with a pretrial 
     agreement and the accused at the rehearing changes his plea 
     with respect to the charges or specifications upon which the 
     pretrial agreement was based, or otherwise does not comply 
     with pretrial agreement, the sentence as to those charges or 
     specifications may include any punishment not in excess of 
     that lawfully adjudged at the first military commission.

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

       ``(a) Establishment.--The Secretary of Defense shall 
     establish a Court of Military Commission Review which shall 
     be composed of one or more panels, and each such panel shall 
     be composed of not less than three appellate military judges. 
     For the purpose of reviewing military commission decisions 
     under this chapter, the Court may sit in panels or as a whole 
     in accordance with rules prescribed by the Secretary.
       ``(b) Appellate Military Judges.--The Secretary shall 
     assign appellate military judges to a Court of Military 
     Commission Review. Each appellate military judge shall meet 
     the qualifications for military judges prescribed by section 
     948j(b) of this title or shall be a civilian with comparable 
     qualifications. No person may serve as an appellate military 
     judge in any case in which that person acted as a military 
     judge, counsel, or reviewing official.
       ``(c) Right of Appeal.--The accused may appeal from a final 
     decision of a military commission, and the United States may 
     appeal as provided in section 950d of this title, to the 
     Court of Military Commission Review in accordance with 
     procedures prescribed under regulations of the Secretary.
       ``(d) Scope of Review.--In a case reviewed by the Court of 
     Military Commission Review under this section, the Court may 
     act only with respect to matters of law.

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

       ``(a) Review by United States Court of Appeals for the 
     District of Columbia Circuit.--(1) Subject to the provisions 
     of this subsection, the United States Court of Appeals for 
     the District of Columbia Circuit shall have exclusive 
     jurisdiction to determine the final validity of any judgment 
     rendered by a military commission under this chapter.
       ``(2) The United States Court of Appeals for the District 
     of Columbia Circuit may not determine the final validity of a 
     judgment of a military commission under this subsection until 
     all other appeals from the judgment under this chapter have 
     been waived or exhausted.
       ``(3)(A) An accused may seek a determination by the United 
     States Court of Appeals for the District of Columbia Circuit 
     of the final validity of the judgment of the military 
     commission under this subsection only upon petition to the 
     Court for such determination.
       ``(B) A petition on a judgment under subparagraph (A) shall 
     be filed by the accused in the Court not later than 20 days 
     after the date on which--
       ``(i) written notice of the final decision of the military 
     commission is served on the accused or defense counsel; or
       ``(ii) the accused submits, in the form prescribed by 
     section 950c of this title, a written notice waiving the 
     right of the accused to review by the Court of Military 
     Commission Review under section 950f of this title.
       ``(C) The accused may not file a petition under 
     subparagraph (A) if the accused has waived the right to 
     appellate review under section 950c(a) of this title.
       ``(4) The determination by the United States Court of 
     Appeals for the District of Columbia Circuit of the final 
     validity of a judgment of a military commission under this 
     subsection shall be governed by the provisions of section 
     1005(e)(3) of the Detainee Treatment Act of 2005 (42 U.S.C. 
     801 note).
       ``(b) Review by Supreme Court.--The Supreme Court of the 
     United States may review by writ of certiorari pursuant to 
     section 1257 of title 28 the final judgment of the United 
     States Court of Appeals for the District of Columbia Circuit 
     in a determination under subsection (a).

     ``Sec. 950h. Appellate counsel

       ``(a) Appointment.--The Secretary of Defense shall, by 
     regulation, establish procedures for the appointment of 
     appellate counsel for the United States and for the accused 
     in military commissions under this chapter. Appellate counsel 
     shall meet the qualifications of counsel for appearing before 
     military commissions under this chapter.
       ``(b) Representation of United 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 United States 
     Court of Appeals for the District of Columbia Circuit and the 
     Supreme Court in cases arising under this chapter when 
     requested to do so by the Attorney General.
       ``(c) Representation of Accused.--The accused shall be 
     represented before the United States Court of Appeals for the 
     District of Columbia Circuit or the Supreme Court by military 
     appellate counsel, or by civilian counsel if retained by him.

     ``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 
     judgement as to the legality of the proceedings (and with 
     respect to death, approval under subsection (a)).
       ``(2) A judgement as to legality of proceedings is final 
     for purposes of paragraph (1) when--
       ``(A) the time for the accused to file a petition for 
     review by the United States Court of Appeals for the District 
     of Columbia Circuit has expired and the accused has not filed 
     a timely petition for such review and the case is not 
     otherwise under review by the Court; or
       ``(B) review is completed in accordance with the judgment 
     of the United States Court of Appeals for the District of 
     Columbia Circuit and (A) a petition for a writ of certiorari 
     is not timely filed, (B) such a petition is denied by the 
     Supreme Court, or (C) review is otherwise completed in 
     accordance with the judgment of the Supreme Court.
       ``(c) Suspension of Sentence.--The Secretary of the 
     Defense, or the convening authority acting on the case (if 
     other than the Secretary), may suspend the execution of

[[Page S10024]]

     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, and the proceedings, findings, and 
     sentences of military commissions as approved, reviewed, or 
     affirmed as required by this chapter, are final and 
     conclusive. Orders publishing the proceedings of military 
     commissions under this chapter are binding upon all 
     departments, courts, agencies, and officers of the United 
     States, except as otherwise provided by the President.
       ``(b) Provisions of Chapter Sole Basis for Review of 
     Military Commission Procedures and Actions.--Except as 
     otherwise provided in this chapter and notwithstanding any 
     other provision of law (including section 2241 of title 28 or 
     any other habeas corpus provision), no court, justice, or 
     judge shall have jurisdiction to hear or consider any claim 
     or cause of action whatsoever, including any action pending 
     on or filed after the date of enactment of this chapter, 
     relating to the prosecution, trial, or judgment of a military 
     commission under this chapter, including challenges to the 
     lawfulness of procedures of military commissions under this 
     chapter.

                   ``SUBCHAPTER VII--PUNITIVE MATTERS

``Sec.
``950aa. Definitions; construction of certain offenses; common 
              circumstances.
``950bb. Statement of substantive offenses.
``950cc. Principals.
``950dd. Accessory after the fact.
``950ee. Conviction of lesser offenses.
``950ff. Attempts.
``950gg. Solicitation.
``950hh. Murder of protected persons.
``950ii. Attacking civilians.
``950jj. Attacking civilian objects.
``950kk. Attacking protected property.
``950ll. Pillaging.
``950mm. Denying quarter.
``950nn. Taking hostages.
``950oo. Employing poison or similar weapons.
``950pp. Using protected persons as a shield.
``950qq. Using protected property as a shield.
``950rr. Torture.
``950ss. Cruel or inhuman treatment.
``950tt. Intentionally causing serious bodily injury.
``950uu. Mutilating or maiming.
``950vv. Murder in violation of the law of war.
``950ww. Destruction of property in violation of the law of war.
``950xx. Using treachery or perfidy.
``950yy. Improperly using a flag of truce.
``950zz. Improperly using a distinctive emblem.
``950aaa. Intentionally mistreating a dead body.
``950bbb. Rape.
``950ccc. Hijacking or hazarding a vessel or aircraft.
``950ddd. Terrorism.
``950eee. Providing material support for terrorism.
``950fff. Wrongfully aiding the enemy.
``950ggg. Spying.
``950hhh. Conspiracy.
``950iii. Contempt.
``950jjj. Perjury and obstruction of justice.

     ``Sec. 950aa. Definitions; construction of certain offenses; 
       common circumstances

       ``(a) Definitions.--In this subchapter:
       ``(1) The term `military objective' means combatants and 
     those objects during an armed conflict which, by their 
     nature, location, purpose, or use, effectively contribute to 
     the war-fighting or war-sustaining capability of an opposing 
     force and whose total or partial destruction, capture, or 
     neutralization would constitute a definite military advantage 
     to the attacker under the circumstances at the time of an 
     attack.
       ``(2) The term `protected person' means any person entitled 
     to protection under one or more of the Geneva Conventions, 
     including civilians not taking an active part in hostilities, 
     military personnel placed out of combat by sickness, wounds, 
     or detention, and military medical or religious personnel.
       ``(3) The term `protected property' means any property 
     specifically protected by the law of war, including buildings 
     dedicated to religion, education, art, science, or charitable 
     purposes, historic monuments, hospitals, and places where the 
     sick and wounded are collected, but only if and to the extent 
     such property is not being used for military purposes or is 
     not otherwise a military objective. The term includes objects 
     properly identified by one of the distinctive emblems of the 
     Geneva Conventions, but does not include civilian property 
     that is a military objective.
       ``(b) Construction of Certain Offenses.--The intent 
     required for offenses under sections 950hh, 950ii, 950jj, 
     950kk, and 950ss of this title precludes their applicability 
     with regard to collateral damage or to death, damage, or 
     injury incident to a lawful attack.
       ``(c) Common Circumstances.--An offense specified in this 
     subchapter is triable by military commission under this 
     chapter only if the offense is committed in the context of 
     and associated with armed conflict.

     ``Sec. 950bb. Statement of substantive offenses

       ``(a) Purpose.--The provisions of this subchapter codify 
     offenses that have traditionally been triable by military 
     commissions. This chapter does not establish new crimes that 
     did not exist before its enactment, but rather codifies those 
     crimes for trial by military commission.
       ``(b) Effect.--Because the provisions of this subchapter 
     (including provisions that incorporate definitions in other 
     provisions of law) are declarative of existing law, they do 
     not preclude trial for crimes that occurred before the date 
     of the enactment of this chapter.

     ``Sec. 950cc. Principals

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

     ``Sec. 950dd. 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 under this chapter 
     may direct.

     ``Sec. 950ee. 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 attempt to commit either the 
     offense charged or an offense necessarily included therein.

     ``Sec. 950ff. Attempts

       ``(a) In General.--Any person subject to this chapter who 
     attempts to commit any offense punishable by this chapter 
     shall be punished as a military commission under this chapter 
     may direct.
       ``(b) 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. 950gg. 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 under this chapter 
     shall, if the offense solicited or advised is attempted or 
     committed, be punished with the punishment provided for the 
     commission of the offense, but, if the offense solicited or 
     advised is not committed or attempted, he shall be punished 
     as a military commission under this chapter may direct.

     ``Sec. 950hh. Murder of protected persons

       ``Any person subject to this chapter who intentionally 
     kills one or more protected persons shall be punished by 
     death or such other punishment as a military commission under 
     this chapter may direct.

     ``Sec. 950ii. Attacking civilians

       ``Any person subject to this chapter who intentionally 
     engages in an attack upon a civilian population as such, or 
     individual civilians not taking active part in hostilities, 
     shall be punished, if death results to one or more of the 
     victims, by death or such other punishment as a military 
     commission under this chapter may direct, and, if death does 
     not result to any of the victims, by such punishment, other 
     than death, as a military commission under this chapter may 
     direct.

     ``Sec. 950jj. Attacking civilian objects

       ``Any person subject to this chapter who intentionally 
     engages in an attack upon a civilian object that is not a 
     military objective shall be punished as a military commission 
     under this chapter may direct.

     ``Sec. 950kk. Attacking protected property

       ``Any person subject to this chapter who intentionally 
     engages in an attack upon protected property shall be 
     punished as a military commission under this chapter may 
     direct.

     ``Sec. 950ll. Pillaging

       ``Any person subject to this chapter who intentionally and 
     in the absence of military necessity appropriates or seizes 
     property for private or personal use, without the consent of 
     a person with authority to permit such appropriation or 
     seizure, shall be punished as a military commission under 
     this chapter may direct.

     ``Sec. 950mm. Denying quarter

       ``Any person subject to this chapter who, with effective 
     command or control over subordinate groups, declares, orders, 
     or otherwise indicates to those groups that there shall be no 
     survivors or surrender accepted, with the intent to threaten 
     an adversary or to conduct hostilities such that there would 
     be no survivors or surrender accepted, shall be punished as a 
     military commission under this chapter may direct.

     ``Sec. 950nn. Taking hostages

       ``Any person subject to this chapter who, having knowingly 
     seized or detained one or more persons, threatens to kill, 
     injure, or

[[Page S10025]]

     continue to detain such person or persons with the intent of 
     compelling any nation, person other than the hostage, or 
     group of persons to act or refrain from acting as an explicit 
     or implicit condition for the safety or release of such 
     person or persons, shall be punished, if death results to one 
     or more of the victims, by death or such other punishment as 
     a military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.

     ``Sec. 950oo. Employing poison or similar weapons

       ``Any person subject to this chapter who intentionally, as 
     a method of warfare, employs a substance or weapon that 
     releases a substance that causes death or serious and lasting 
     damage to health in the ordinary course of events, through 
     its asphyxiating, bacteriological, or toxic properties, shall 
     be punished, if death results to one or more of the victims, 
     by death or such other punishment as a military commission 
     under this chapter may direct, and, if death does not result 
     to any of the victims, by such punishment, other than death, 
     as a military commission under this chapter may direct.

     ``Sec. 950pp. Using protected persons as a shield

       ``Any person subject to this chapter who positions, or 
     otherwise takes advantage of, a protected person with the 
     intent to shield a military objective from attack. or to 
     shield, favor, or impede military operations, shall be 
     punished, if death results to one or more of the victims, by 
     death or such other punishment as a military commission under 
     this chapter may direct, and, if death does not result to any 
     of the victims, by such punishment, other than death, as a 
     military commission under this chapter may direct.

     ``Sec. 950qq. Using protected property as a shield

       ``Any person subject to this chapter who positions, or 
     otherwise takes advantage of the location of, protected 
     property with the intent to shield a military objective from 
     attack, or to shield, favor, or impede military operations, 
     shall be punished as a military commission under this chapter 
     may direct.

     ``Sec. 950rr. Torture

       ``(a) Offense.--Any person subject to this chapter who 
     commits an act specifically intended to inflict severe 
     physical or mental pain or suffering (other than pain or 
     suffering incidental to lawful sanctions) upon another person 
     within his custody or physical control for the purpose of 
     obtaining information or a confession, punishment, 
     intimidation, coercion, or any reason based on discrimination 
     of any kind, shall be punished, if death results to one or 
     more of the victims, by death or such other punishment as a 
     military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.
       ``(b) Severe Mental Pain or Suffering Defined.--In this 
     section, the term `severe mental pain or suffering' has the 
     meaning given that term in section 2340(2) of title 18.

     ``Sec. 950ss. Cruel or inhuman treatment

       ``(a) Offense.--Any person subject to this chapter who 
     commits, or conspires or attempts to commit, an act intended 
     to inflict severe or serious physical or mental pain or 
     suffering (other than pain or suffering incidental to lawful 
     sanctions), including serious physical abuse, upon another 
     within his custody or control shall be punished, if death 
     results to the victim, by death or such other punishment as a 
     military commission under this chapter may direct, and, if 
     death does not result to the victim, by such punishment, 
     other than death, as a military commission under this chapter 
     may direct.
       ``(b) Definitions.--In this section:
       ``(1) The term `severe mental pain or suffering' has the 
     meaning given that term in section 2340(2) of title 18.
       ``(2) The term `serious physical pain or suffering' means 
     bodily injury that involves--
       ``(A) a substantial risk of death;
       ``(B) extreme physical pain;
       ``(C) a burn or physical disfigurement of a serious nature 
     (other than cuts, abrasions, or bruises); or
       ``(D) significant loss or impairment of the function of a 
     bodily member, organ, or mental faculty.
       ``(3) The term `serious mental pain or suffering' has the 
     meaning given the term `severe mental pain or suffering' in 
     section 2340(2) of title 18, except that--
       ``(A) the term `serious' shall replace the term `severe' 
     where it appears; and
       ``(B) as to conduct occurring after the date of the 
     enactment of the Military Commission Act of 2006, the term 
     `serious and non-transitory mental harm (which need not be 
     prolonged)' shall replace the term `prolonged mental harm' 
     where it appears.

     ``Sec. 950tt. Intentionally causing serious bodily injury

       ``(a) Offense.--Any person subject to this chapter who 
     intentionally causes serious bodily injury to one or more 
     persons, including lawful combatants, in violation of the law 
     of war shall be punished, if death results to one or more of 
     the victims, by death or such other punishment as a military 
     commission under this chapter may direct, and, if death does 
     not result to any of the victims, by such punishment, other 
     than death, as a military commission under this chapter may 
     direct.
       ``(b) Serious Bodily Injury Defined.--In this section, the 
     term `serious bodily injury' means bodily injury which 
     involves--
       ``(1) a substantial risk of death;
       ``(2) extreme physical pain;
       ``(3) protracted and obvious disfigurement; or
       ``(4) protracted loss or impairment of the function of a 
     bodily member, organ, or mental faculty.

     ``Sec. 950uu. Mutilating or maiming

       ``Any person subject to this chapter who intentionally 
     injures one or more protected persons by disfiguring the 
     person or persons by any mutilation of the person or persons, 
     or by permanently disabling any member, limb, or organ of the 
     body of the person or persons, without any legitimate medical 
     or dental purpose, shall be punished, if death results to one 
     or more of the victims, by death or such other punishment as 
     a military commission under this chapter may direct, and, if 
     death does not result to any of the victims, by such 
     punishment, other than death, as a military commission under 
     this chapter may direct.

     ``Sec. 950vv. Murder in violation of the law of war

       ``Any person subject to this chapter who intentionally 
     kills one or more persons, including lawful combatants, in 
     violation of the law of war shall be punished by death or 
     such other punishment as a military commission under this 
     chapter may direct.

     ``Sec. 950ww. Destruction of property in violation of the law 
       of war

       ``Any person subject to this chapter who intentionally 
     destroys property belonging to another person in violation of 
     the law of war shall punished as a military commission under 
     this chapter may direct.

     ``Sec. 950xx. Using treachery or perfidy

       ``Any person subject to this chapter who, after inviting 
     the confidence or belief of one or more persons that they 
     were entitled to, or obliged to accord, protection under the 
     law of war, intentionally makes use of that confidence or 
     belief in killing, injuring, or capturing such person or 
     persons shall be punished, if death results to one or more of 
     the victims, by death or such other punishment as a military 
     commission under this chapter may direct, and, if death does 
     not result to any of the victims, by such punishment, other 
     than death, as a military commission under this chapter may 
     direct.

     ``Sec. 950yy. Improperly using a flag of truce

       ``Any person subject to this chapter who uses a flag of 
     truce to feign an intention to negotiate, surrender, or 
     otherwise suspend hostilities when there is no such intention 
     shall be punished as a military commission under this chapter 
     may direct.

     ``Sec. 950zz. Improperly using a distinctive emblem

       ``Any person subject to this chapter who intentionally uses 
     a distinctive emblem recognized by the law of war for 
     combatant purposes in a manner prohibited by the law of war 
     shall be punished as a military commission under this chapter 
     may direct.

     ``Sec. 950aaa. Intentionally mistreating a dead body

       ``Any person subject to this chapter who intentionally 
     mistreats the body of a dead person, without justification by 
     legitimate military necessary, shall be punished as a 
     military commission under this chapter may direct.

     ``Sec. 950bbb. Rape

       ``Any person subject to this chapter who forcibly or with 
     coercion or threat of force wrongfully invades the body of a 
     person by penetrating, however slightly, the anal or genital 
     opening of the victim with any part of the body of the 
     accused, or with any foreign object, shall be punished as a 
     military commission under this chapter may direct.

     ``Sec. 950ccc. 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 is not a 
     legitimate military objective shall be punished, if death 
     results to one or more of the victims, by death or such other 
     punishment as a military commission under this chapter may 
     direct, and, if death does not result to any of the victims, 
     by such punishment, other than death, as a military 
     commission under this chapter may direct.

     ``Sec. 950ddd. Terrorism

       ``Any person subject to this chapter who intentionally 
     kills or inflicts great bodily harm on one or more protected 
     persons, or intentionally engages in an act that evinces a 
     wanton disregard for human life, in a manner calculated to 
     influence or affect the conduct of government or civilian 
     population by intimidation or coercion, or to retaliate 
     against government conduct, shall be punished, if death 
     results to one or more of the victims, by death or such other 
     punishment as a military commission under this chapter may 
     direct, and, if death does not result to any of the victims, 
     by such punishment, other than death, as a military 
     commission under this chapter may direct.

     ``Sec. 950eee. Providing material support for terrorism

       ``(a) Offense.--Any person subject to this chapter who 
     provides material support or resources, knowing or intending 
     that they are to be used in preparation for, or in carrying 
     out, an act of terrorism (as set forth in section 950ddd of 
     this title), or who intentionally provides material support 
     or resources to an international terrorist organization 
     engaged in hostilities against the

[[Page S10026]]

     United States, knowing that such organization has engaged or 
     engages in terrorism (as so set forth), shall be punished as 
     a military commission under this chapter may direct.
       ``(b) Material Support or Resources Defined.--In this 
     section, the term `material support or resources' has the 
     meaning given that term in section 2339A(b) of title 18.

     ``Sec. 950fff. Wrongfully aiding the enemy

       ``Any person subject to this chapter who, in breach of an 
     allegiance or duty to the United States, knowingly and 
     intentionally aids an enemy of the United States, or one of 
     the co-belligerents of the enemy, shall be punished as a 
     military commission under this chapter may direct.

     ``Sec. 950ggg. Spying

       ``Any person subject to this chapter who, in violation of 
     the law of war and with intent or reason to believe that it 
     is to be used to the injury of the United States or to the 
     advantage of a foreign power, collects or attempts to collect 
     information by clandestine means or while acting under false 
     pretenses, for the purpose of conveying such information to 
     an enemy of the United States, or one of the co-belligerents 
     of the enemy, shall be punished by death or such other 
     punishment as a military commission under this chapter may 
     direct.

     ``Sec. 950hhh. Conspiracy

       ``Any person subject to this chapter who conspires to 
     commit one or more substantive offenses triable by military 
     commission under this subchapter, and who knowingly does any 
     overt act to effect the object of the conspiracy, shall be 
     punished, if death results to one or more of the victims, by 
     death or such other punishment as a military commission under 
     this chapter may direct, and, if death does not result to any 
     of the victims, by such punishment, other than death, as a 
     military commission under this chapter may direct.

     ``Sec. 950iii. Contempt

       ``A military commission under this chapter may punish for 
     contempt any person who uses any menacing word, sign, or 
     gesture in its presence, or who disturbs its proceedings by 
     any riot or disorder.

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

       ``A military commission under this chapter may try offenses 
     and impose such punishment as the military commission may 
     direct for perjury, false testimony, or obstruction of 
     justice related to the military commission.''.
       (2) Tables of chapters 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 Commissions.............................948a''.
       (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 of 
     Defense shall submit to the Committees on Armed Services of 
     the Senate and the House of Representatives a report setting 
     forth the procedures for military commissions prescribed 
     under chapter 47A of title 10, United States Code (as added 
     by subsection (a)).
       (2) Submittal of 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 
     modification.

     SEC. 105. AMENDMENTS TO OTHER LAWS.

       (a) Detainee Treatment Act of 2005.--Section 1004(b) of the 
     Detainee Treatment Act of 2005 (title X of Public Law 109-
     148; 119 Stat. 2740; 42 U.S.C. 200dd-1(b)) is amended--
       (1) by striking ``may provide'' and inserting ``shall 
     provide'';
       (2) by inserting ``or investigation'' after ``criminal 
     prosecution''; and
       (3) by inserting ``whether before United States courts or 
     agencies, foreign courts or agencies, or international courts 
     or agencies,'' after ``described in that subsection,''.
       (b) Uniform Code of Military Justice.--Chapter 47 of title, 
     10, United States Code (the Uniform Code of Military 
     Justice), is amended as follows:
       (1) Section 802 (article 2 of the Uniform Code of Military 
     Justice) is amended by adding at the end the following new 
     paragraph:
       ``(13) Lawful enemy combatants (as that term is defined in 
     section 948a(3) of this title) who violate the law of war.''.
       (2) Section 821 (article 21 of the Uniform Code of Military 
     Justice) is amended by striking ``by statute or law of war''.
       (3) Section 836(a) (article 36(a) of the Uniform Code of 
     Military Justice) is amended by inserting ``(other than 
     military commissions under chapter 47A of this title)'' after 
     ``other military tribunals''.
       (c) Punitive Article of Conspiracy.--Section 881 of title 
     10, United States Code (article 81 of the Uniform Code of 
     Military Justice)), is amended--
       (1) by inserting ``(a)'' before ``Any person''; and
       (2) by adding at the end the following new subsection:
       ``(b) Any person subject to this chapter or chapter 47A of 
     this title who conspires with any other person to commit an 
     offense under the law of war, and who knowingly does an overt 
     act to effect the object of the conspiracy, shall be 
     punished, if death results to one or more of the victims, by 
     death or such other punishment as a court-martial or military 
     commission may direct, and, if death does not result to any 
     of the victims, by such punishment, other than death, as a 
     court-martial or military commission may direct.''.
       (d) Review of Judgments of Military Commissions.--
       (1) Review by supreme court.--Section 1259 of title 28, 
     United States Code, is amended by adding at the end the 
     following new paragraph:
       ``(5) Cases tried by military commission and reviewed by 
     the United States Court of Appeals for the District of 
     Columbia Circuit under section 950g of title 10.''.
       (2) Detainee treatment act of 2005.--Section 1005(e)(3) of 
     the Detainee Treatment Act of 2005 (title X of Public Law 
     109-148; 119 Stat. 2740; 10 U.S.C. 801 note) is amended--
       (A) in subparagraph (A), by striking ``pursuant to Military 
     Commission Order No. 1. dated August 31, 2005 (or any 
     successor military order)'' and inserting ``by a military 
     commission under chapter 47A of title 10, United States 
     Code'';
       (B) by striking subparagraph (B) and inserting the 
     following new subparagraph (B):
       ``(B) Grant of review.--Review under this paragraph shall 
     be as of right.'';
       (C) in subparagraph (C)--

       (i) in clause (i)--

       (I) by striking ``pursuant to the military order'' and 
     inserting ``by a military commission''; and
       (II) by striking ``at Guantanamo Bay, Cuba''; and

       (ii) in clause (ii), by striking ``pursuant to such 
     military order'' and inserting ``by the military 
     commission''; and

       (D) in subparagraph (D)(i), by striking ``specified in the 
     military order'' and inserting ``specified for a military 
     commission''.

     SEC. 106. HABEAS CORPUS MATTERS.

       (a) In General.--Section 2241 of title 28, United States 
     Code, is amended--
       (1) by striking subsection (e) (as added by section 
     1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by 
     striking subsection (e) (as added by added by section 
     1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and
       (2) by adding at the end the following new subsection:
       ``(e)(1) No court, justice, or judge shall have 
     jurisdiction to hear or consider an application for a writ of 
     habeas corpus filed by or on behalf of an alien detained by 
     the United States who--
       ``(A) is currently in United States custody; and
       ``(B) has been determined by the United States to have been 
     properly detained as an enemy combatant or is awaiting such 
     determination.
       ``(2) Except as provided in paragraphs (2) and (3) of 
     section 1005(e) of the Detainee Treatment Act of 2005 (10 
     U.S.C. 801 note), no court, justice, or judge shall have 
     jurisdiction to hear or consider any other action against the 
     United States or its agents relating to any aspect of the 
     detention, transfer, treatment, trial, or conditions of 
     confinement of an alien detained by the United States who--
       ``(A) is currently in United States custody; and
       ``(B) has been determined by the United States to have been 
     properly detained as an enemy combatant or is awaiting such 
     determination.''.
       (b) Effective Date.--The amendments made by subsection (a) 
     shall take effect on the date of the enactment of this Act, 
     and shall apply to all cases, without exception, pending on 
     or after the date of the enactment of this Act which relate 
     to any aspect of the detention, transfer, treatment, trial, 
     or conditions of detention of an alien detained by the United 
     States since September 11, 2001.

     SEC. 107. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR 
                   CERTAIN CLAIMS.

       (a) In General.--No person may invoke the Geneva 
     Conventions, or any protocols thereto, in any habeas or civil 
     action or proceeding to which the United States, or a current 
     or former officer, employee, member of the Armed Forces, or 
     other agent of the United States, is a party, as a source of 
     rights in any court of the United States or its States or 
     territories.
       (b) Geneva Conventions Defined.--In this section, the term 
     ``Geneva Conventions'' means--
       (1) the Convention for the Amelioration of the Condition of 
     the Wounded and Sick in Armed Forces in the Field, done at 
     Geneva August 12, 1949 (6 UST 3217);
       (2) the Convention for the Amelioration of the Condition of 
     the Wounded, Sick, and Shipwrecked Members of the Armed 
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (3) the Convention Relative to the Treatment of Prisoners 
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (4) the Convention Relative to the Protection of Civilian 
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST 
     3516).

     SEC. 108. IMPLEMENTATION OF TREATY OBLIGATIONS.

       (a) Implementation of Treaty Obligations.--
       (1) In general.--The acts enumerated in subsection (d) of 
     section 2441 of title 18, United States Code, as added by 
     subsection (b) of this section, and in subsection (c) of this 
     section, constitute violations of common Article 3 of the 
     Geneva Conventions prohibited by United States law.

[[Page S10027]]

       (2) Prohibition on grave breaches.--The provisions of 
     section 2441 of title 18, United States Code, as amended by 
     this section, fully satisfy the obligation under Article 129 
     of the Third Geneva Convention for the United States to 
     provide effective penal sanctions for grave breaches which 
     are encompassed in common Article 3 in the context of an 
     armed conflict not of an international character. No foreign 
     or international source of law shall supply a basis for a 
     rule of decision in the courts of the United States in 
     interpreting the prohibitions enumerated in subsection (d) of 
     such section 2441.
       (3) Interpretation by the president.--(A) As provided by 
     the Constitution and by this section, the President has the 
     authority for the United States to interpret the meaning and 
     application of the Geneva Conventions and to promulgate 
     higher standards and administrative regulations for 
     violations of treaty obligations which are not grave breaches 
     of the Geneva Conventions.
       (B) The President shall issue interpretations described by 
     subparagraph (A) by Executive Order published in the Federal 
     Register.
       (C) Any Executive Order published under this paragraph 
     shall be authoritative (as to non-grave breach provisions of 
     common Article 3) as a matter of United States law, in the 
     same manner as other administrative regulations.
       (D) Nothing in this section shall be construed to affect 
     the constitutional functions and responsibilities of Congress 
     and the judicial branch of the United States.
       (4) Definitions.--In this subsection:
       (A) The term ``Geneva Conventions'' means--
       (i) the Convention for the Amelioration of the Condition of 
     the Wounded and Sick in Armed Forces in the Field, done at 
     Geneva August 12, 1949 (6 UST 3217);
       (ii) the Convention for the Amelioration of the Condition 
     of the Wounded, Sick, and Shipwrecked Members of the Armed 
     Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
       (iii) the Convention Relative to the Treatment of Prisoners 
     of War, done at Geneva August 12, 1949 (6 UST 3316); and
       (iv) the Convention Relative to the Protection of Civilian 
     Persons in Time of War, done at Geneva August 12, 1949 (6 UST 
     3516).
       (B) The term ``Third Geneva Convention'' means the 
     international convention referred to in subparagraph 
     (A)(iii).
       (b) Revision to War Crimes Offense Under Federal Criminal 
     Code.--
       (1) In general.--Section 2441 of title 18, United States 
     Code, is amended--
       (A) in subsection (c), by striking paragraph (3) and 
     inserting the following new paragraph (3):
       ``(3) which constitutes a grave breach of common Article 3 
     as defined in subsection (d) when committed in the context of 
     and in association with an armed conflict not of an 
     international character; or''; and
       (B) by adding at the end the following new subsection:
       ``(d) Common Article 3 Violations.--
       ``(1) Prohibited conduct.--In subsection (c)(3), the term 
     `grave breach of common Article 3' means any conduct (such 
     conduct constituting a grave breach of common Article 3 of 
     the international conventions done at Geneva August 12, 
     1949), as follows:
       ``(A) Torture.--The act of a person who commits, or 
     conspires or attempts to commit, an act specifically intended 
     to inflict severe physical or mental pain or suffering (other 
     than pain or suffering incidental to lawful sanctions) upon 
     another person within his custody or physical control for the 
     purpose of obtaining information or a confession, punishment, 
     intimidation, coercion, or any reason based on discrimination 
     of any kind.
       ``(B) Cruel or inhuman treatment.--The act of a person who 
     commits, or conspires or attempts to commit, an act intended 
     to inflict severe or serious physical or mental pain or 
     suffering (other than pain or suffering incidental to lawful 
     sanctions), including serious physical abuse, upon another 
     within his custody or control.
       ``(C) Performing biological experiments.--The act of a 
     person who subjects, or conspires or attempts to subject, one 
     or more persons within his custody or physical control to 
     biological experiments without a legitimate medical or dental 
     purpose and in so doing endangers the body or health of such 
     person or persons.
       ``(D) Murder.--The act of a person who intentionally kills, 
     or conspires or attempts to kill, or kills whether 
     intentionally or unintentionally in the course of committing 
     any other offense under this subsection, one or more persons 
     taking no active part in the hostilities, including those 
     placed out of combat by sickness, wounds, detention, or any 
     other cause.
       ``(E) Mutilation or maiming.--The act of a person who 
     intentionally injures, or conspires or attempts to injure, or 
     injures whether intentionally or unintentionally in the 
     course of committing any other offense under this subsection, 
     one or more persons taking no active part in the hostilities, 
     including those placed out of combat by sickness, wounds, 
     detention, or any other cause, by disfiguring the person or 
     persons by any mutilation thereof or by permanently disabling 
     any member, limb, or organ of his body, without any 
     legitimate medical or dental purpose.
       ``(F) Intentionally causing serious bodily injury.--The act 
     of a person who intentionally causes, or conspires or 
     attempts to cause, serious bodily injury to one or more 
     persons, including lawful combatants, in violation of the law 
     of war.
       ``(G) Rape.--The act of a person who forcibly or with 
     coercion or threat of force wrongfully invades, or conspires 
     or attempts to invade, the body of a person by penetrating, 
     however slightly, the anal or genital opening of the victim 
     with any part of the body of the accused, or with any foreign 
     object.
       ``(H) Sexual assault or abuse.--The act of a person who 
     forcibly or with coercion or threat of force engages, or 
     conspires or attempts to engage, in sexual contact with one 
     or more persons, or causes, or conspires or attempts to 
     cause, one or more persons to engage in sexual contact.
       ``(I) Taking hostages.--The act of a person who, having 
     knowingly seized or detained one or more persons, threatens 
     to kill, injure, or continue to detain such person or persons 
     with the intent of compelling any nation, person other than 
     the hostage, or group of persons to act or refrain from 
     acting as an explicit or implicit condition for the safety or 
     release of such person or persons.
       ``(2) Definitions.--In the case of an offense under 
     subsection (a) by reason of subsection (c)(3)--
       ``(A) the term `severe mental pain or suffering' shall be 
     applied for purposes of paragraphs (1)(A) and (1)(B) in 
     accordance with the meaning given that term in section 
     2340(2) of this title;
       ``(B) the term `serious bodily injury' shall be applied for 
     purposes of paragraph (1)(F) in accordance with the meaning 
     given that term in section 113(b)(2) of this title;
       ``(C) the term `sexual contact' shall be applied for 
     purposes of paragraph (1)(G) in accordance with the meaning 
     given that term in section 2246(3) of this title;
       ``(D) the term `serious physical pain or suffering' shall 
     be applied for purposes of paragraph (1)(B) as meaning bodily 
     injury that involves--
       ``(i) a substantial risk of death;
       ``(ii) extreme physical pain;
       ``(iii) a burn or physical disfigurement of a serious 
     nature (other than cuts, abrasions, or bruises); or
       ``(iv) significant loss or impairment of the function of a 
     bodily member, organ, or mental faculty; and
       ``(E) the term `serious mental pain or suffering' shall be 
     applied for purposes of paragraph (1)(B) in accordance with 
     the meaning given the term `severe mental pain or suffering' 
     (as defined in section 2340(2) of this title), except that--
       ``(i) the term `serious' shall replace the term `severe' 
     where it appears; and
       ``(ii) as to conduct occurring after the date of the 
     enactment of the Military Commission Act of 2006, the term 
     `serious and non-transitory mental harm (which need not be 
     prolonged)' shall replace the term `prolonged mental harm' 
     where it appears.
       ``(3) Inapplicability of certain provisions with respect to 
     collateral damage or incident of lawful attack.--The intent 
     specified for the conduct stated in subparagraphs (D), (E), 
     and (F) or paragraph (1) precludes the applicability of those 
     subparagraphs to an offense under subsection (a) by reasons 
     of subsection (c)(3) with respect to--
       ``(A) collateral damage; or
       ``(B) death, damage, or injury incident to a lawful attack.
       ``(4) Inapplicability of taking hostages to prisoner 
     exchange.--Paragraph (1)(I) does not apply to an offense 
     under subsection (a) by reason of subsection (c)(3) in the 
     case of a prisoner exchange during wartime.''.
       (2) Retroactive applicability.--The amendments made by this 
     subsection, except as specified in subsection (d)(2)(E) of 
     section 2441 of title 18, United States Code, shall take 
     effect as of November 26, 1997, as if enacted immediately 
     after the amendments made by section 583 of Public Law 105-
     118 (as amended by section 4002(e)(7) of Public Law 107-273).
       (c) Additional Prohibition on Cruel, Inhuman, or Degrading 
     Treatment or Punishment.--
       (1) In general.--No individual in the custody or under the 
     physical control of the United States Government, regardless 
     of nationality or physical location, shall be subject to 
     cruel, inhuman, or degrading treatment or punishment.
       (2) Cruel, inhuman, or degrading treatment or punishment 
     defined.--In this subsection, the term ``cruel, inhuman, or 
     degrading treatment or punishment'' means cruel, unusual, and 
     inhumane treatment or punishment prohibited by the Fifth, 
     Eighth, and Fourteenth Amendments to the Constitution of the 
     United States, as defined in the United States Reservations, 
     Declarations and Understandings to the United Nations 
     Convention Against Torture and Other Forms of Cruel, Inhuman 
     or Degrading Treatment or Punishment done at New York, 
     December 10, 1984.
       (3) Compliance.--The President shall take appropriate 
     action to ensure compliance with this subsection, including 
     through the establishment of administrative rules and 
     procedures.

     SEC. 109. DETENTION COVERED BY REVIEW OF DECISIONS OF 
                   COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY 
                   OF DETENTION.

       Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of 
     2005 (title X of Public Law 109-148; 119 Stat. 2742; 10 
     U.S.C. 801 note) is

[[Page S10028]]

     amended by striking ``the Department of Defense at Guantanamo 
     Bay, Cuba'' and inserting ``the United States''.

     SEC. 110. SEVERABILITY.

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

                  TITLE II--TERRORIST SURVEILLANCE ACT

     SECTION 201. SHORT TITLE.

       This title may be cited as the ``Terrorist Surveillance Act 
     of 2006''.

     SEC. 202. FINDINGS.

       Congress finds the following:
       (1) After the terrorist attacks of September 11, 2001, 
     President Bush authorized the National Security Agency to 
     intercept communications between people inside the United 
     States, including American citizens, and terrorism suspects 
     overseas.
       (2) One of the lessons learned from September 11, 2001, is 
     that the enemies who seek to greatly harm and terrorize our 
     Nation utilize technologies and techniques that defy 
     conventional law enforcement practices.
       (3) The President, as the constitutional officer most 
     directly responsible for protecting the United States from 
     attack, requires the ability and means to detect and track an 
     enemy that can master and exploit modern technology.
       (4) It is equally essential, however, that in protecting 
     the United States against our enemies, the President does not 
     compromise the very civil liberties that he seeks to 
     safeguard. As Justice Hugo Black observed, ``The President's 
     power, if any, to issue [an] order must stem either from an 
     Act of Congress or from the Constitution itself.'' Youngstown 
     Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion 
     by Black, J.). Similarly, in 2004, Justice Sandra Day 
     O'Connor explained in her plurality opinion for the Supreme 
     Court in Hamdi v. Rumsfeld: ``We have long since made clear 
     that a state of war is not a blank check for the President 
     when it comes to the rights of the Nation's citizens.'' Hamdi 
     v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted).
       (5) When deciding issues of national security, it is in our 
     Nation's best interest that, to the extent feasible, all 3 
     branches of the Federal Government should be involved. This 
     helps guarantee that electronic surveillance programs do not 
     infringe on the constitutional rights of Americans, while at 
     the same time ensuring that the President has all the powers 
     and means necessary to detect and track our enemies and 
     protect our Nation from attack.
       (6) As Justice Sandra Day O'Connor explained in her 
     plurality opinion for the Supreme Court in Hamdi v. Rumsfeld, 
     ``Whatever power the United States Constitution envisions for 
     the Executive in its exchanges with other nations or with 
     enemy organizations in times of conflict, it most assuredly 
     envisions a role for all 3 branches when individual liberties 
     are at stake.'' Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004) 
     (citations omitted).
       (7) Similarly, Justice Jackson famously explained in his 
     Youngstown concurrence: ``When the President acts pursuant to 
     an express or implied authorization of Congress, his 
     authority is at its maximum, for it includes all that he 
     possesses in his own right plus all that Congress can 
     delegate . . . When the President acts in absence of either a 
     congressional grant or denial of authority, he can only rely 
     upon his own independent powers, but there is a zone of 
     twilight in which he and Congress may have concurrent 
     authority, or in which its distribution is uncertain. 
     Therefore, congressional inertia, indifference or quiescence 
     may sometimes, at least as a practical matter, enable, if not 
     invite, measures on independent presidential responsibility . 
     . . When the President takes measures incompatible with the 
     expressed or implied will of Congress, his power is at its 
     lowest ebb, for then he can rely only upon his own 
     constitutional powers minus any constitutional powers of 
     Congress over the matter. Courts can sustain exclusive 
     Presidential control in such a case only by disabling the 
     Congress from acting upon the subject.'' Youngstown Sheet & 
     Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., 
     concurring).
       (8) Congress clearly has the authority to enact legislation 
     with respect to electronic surveillance programs. The 
     Constitution provides Congress with broad powers of oversight 
     over national security and foreign policy, under article I, 
     section 8 of the Constitution of the United States, which 
     confers on Congress numerous powers, including the powers--
       (A) ``To declare War, grant Letters of Marque and Reprisal, 
     and make Rules concerning Captures on Land and Water'';
       (B) ``To raise and support Armies'';
       (C) ``To provide and maintain a Navy'';
       (D) ``To make Rules for the Government and Regulation of 
     the land and naval Forces'';
       (E) ``To provide for calling forth the Militia to execute 
     the Laws of the Union, suppress Insurrections and repel 
     Invasions''; and
       (F) ``To provide for organizing, arming, and disciplining 
     the Militia, and for governing such Part of them as may be 
     employed in the Service of the United States''.
       (9) While Attorney General Alberto Gonzales explained that 
     the executive branch reviews the electronic surveillance 
     program of the National Security Agency every 45 days to 
     ensure that the program is not overly broad, it is the belief 
     of Congress that approval and supervision of electronic 
     surveillance programs should be conducted outside of the 
     executive branch, by the article III court established under 
     section 103 of the Foreign Intelligence Surveillance Act of 
     1978 (50 U.S.C. 1803) and the congressional intelligence 
     committees. It is also the belief of Congress that it is 
     appropriate for an article III court to pass upon the 
     constitutionality of electronic surveillance programs that 
     may be directed at Americans.
       (10) The Foreign Intelligence Surveillance Court is the 
     proper court to approve and supervise classified electronic 
     surveillance programs because it is adept at maintaining the 
     secrecy with which it was charged and it possesses the 
     requisite expertise and discretion for adjudicating sensitive 
     issues of national security.
       (11) In 1975, [then] Attorney General Edward Levi, a strong 
     defender of executive authority, testified that in times of 
     conflict, the President needs the power to conduct long-range 
     electronic surveillance and that a foreign intelligence 
     surveillance court should be empowered to issue special 
     approval orders in these circumstances.
       (12) Granting the Foreign Intelligence Surveillance Court 
     the authority to review electronic surveillance programs and 
     pass upon their constitutionality is consistent with well-
     established, longstanding practices.
       (13) The Foreign Intelligence Surveillance Court already 
     has broad authority to approve surveillance of members of 
     international conspiracies, in addition to granting warrants 
     for surveillance of a particular individual under sections 
     104, 105, and 402 of the Foreign Intelligence Surveillance 
     Act of 1978 (50 U.S.C. 1804, 1805, and 1842).
       (14) Prosecutors have significant flexibility in 
     investigating domestic conspiracy cases. Courts have held 
     that flexible warrants comply with the 4th amendment to the 
     Constitution of the United States when they relate to 
     complex, far-reaching, and multifaceted criminal enterprises 
     like drug conspiracies and money laundering rings. The courts 
     recognize that applications for search warrants must be 
     judged in a common sense and realistic fashion, and the 
     courts permit broad warrant language where, due to the nature 
     and circumstances of the investigation and the criminal 
     organization, more precise descriptions are not feasible.
       (15) The Supreme Court, in the ``Keith Case'', United 
     States v. United States District Court for the Eastern 
     District of Michigan, 407 U.S. 297 (1972), recognized that 
     the standards and procedures used to fight ordinary crime may 
     not be applicable to cases involving national security. The 
     Court recognized that national ``security surveillance may 
     involve different policy and practical considerations from 
     the surveillance of ordinary crime'' and that courts should 
     be more flexible in issuing warrants in national security 
     cases. United States v. United States District Court for the 
     Eastern District of Michigan, 407 U.S. 297, 322 (1972).
       (16) By authorizing the Foreign Intelligence Surveillance 
     Court to review electronic surveillance programs, Congress 
     enables the President to use the necessary means to guard our 
     national security, while also protecting the civil liberties 
     and constitutional rights that we cherish.

     SEC. 203. DEFINITIONS.

       The Foreign Intelligence Surveillance Act of 1978 (50 
     U.S.C. 1801 et seq.) is amended--
       (1) by redesignating title VII as title VIII;
       (2) by redesignating section 701 as section 801; and
       (3) by inserting after title VI the following:

             ``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS

     ``SEC. 701. DEFINITIONS.

       ``As used in this title--
       ``(1) the terms `agent of a foreign power', `Attorney 
     General', `contents', `electronic surveillance', `foreign 
     power', `international terrorism', `minimization procedures', 
     `person', `United States', and `United States person' have 
     the same meaning as in section 101;
       ``(2) the term `congressional intelligence committees' 
     means the Select Committee on Intelligence of the Senate and 
     the Permanent Select Committee on Intelligence of the House 
     of Representatives;
       ``(3) the term `electronic surveillance program' means a 
     program to engage in electronic surveillance--
       ``(A) that has as a significant purpose the gathering of 
     foreign intelligence information or protecting against 
     international terrorism;
       ``(B) where it is not feasible to name every person, 
     address, or location to be subjected to electronic 
     surveillance;
       ``(C) where effective gathering of foreign intelligence 
     information requires the flexibility to begin electronic 
     surveillance immediately after learning of suspect activity; 
     and
       ``(D) where effective gathering of foreign intelligence 
     information requires an extended period of electronic 
     surveillance;
       ``(4) the term `foreign intelligence information' has the 
     same meaning as in section 101(e) and includes information 
     necessary to protect against international terrorism;
       ``(5) the term `Foreign Intelligence Surveillance Court' 
     means the court established under section 103(a); and
       ``(6) the term `Foreign Intelligence Surveillance Court of 
     Review' means the court established under section 103(b).''.

[[Page S10029]]

     SEC. 204. FOREIGN INTELLIGENCE SURVEILLANCE COURT 
                   JURISDICTION TO REVIEW ELECTRONIC SURVEILLANCE 
                   PROGRAMS.

       (a) In General.--Title VII of the Foreign Intelligence 
     Surveillance Act of 1978, as amended by section 3, is amended 
     by adding at the end the following:

     ``SEC. 702. FOREIGN INTELLIGENCE SURVEILLANCE COURT 
                   JURISDICTION TO REVIEW ELECTRONIC SURVEILLANCE 
                   PROGRAMS.

       ``(a) Authorization of Review.--
       ``(1) Initial authorization.--The Foreign Intelligence 
     Surveillance Court shall have jurisdiction to issue an order 
     under this title, lasting not longer than 90 days, that 
     authorizes an electronic surveillance program to obtain 
     foreign intelligence information or to protect against 
     international terrorism.
       ``(2) Reauthorization.--The Foreign Intelligence 
     Surveillance Court shall have jurisdiction to reauthorize an 
     electronic surveillance program for a period of time not 
     longer than such court determines to be reasonable. There 
     shall be no limit on the number of times the Attorney General 
     may seek reauthorization of an electronic surveillance 
     program.
       ``(3) Resubmission or appeal.--In the event that the 
     Foreign Intelligence Surveillance Court refuses to approve an 
     application under this subsection, the court shall state its 
     reasons in a written opinion, which it shall submit to the 
     Attorney General. The Attorney General or his designee may 
     submit a new application under section 703 for the electronic 
     surveillance program, with no limit on the number of 
     resubmissions that may be made. Alternatively, the Attorney 
     General may appeal the decision of the Foreign Intelligence 
     Surveillance Court to the Foreign Intelligence Surveillance 
     Court of Review.
       ``(4) Continued surveillance under title i.--
       ``(A) In general.--If, at any time, the Attorney General 
     determines that the known facts and circumstances relating to 
     any target within the United States under this title satisfy 
     the criteria for an application under section 104 for an 
     order for electronic surveillance of the target under section 
     105, the Attorney General shall--
       ``(i) discontinue the surveillance of the target under this 
     title; or
       ``(ii) continue the surveillance of the target under this 
     title, subject to the requirements of subparagraph (B).
       ``(B) Continuation of surveillance.--
       ``(i) In general.--The Attorney General may continue 
     surveillance of a target under this title as specified in 
     subparagraph (A)(ii) only if the Attorney General makes an 
     application under section 104 for an order for electronic 
     surveillance of the target under section 105 as soon as the 
     Attorney General determines practicable after the date on 
     which the Attorney General makes the determination to 
     continue surveillance of the target under subparagraph 
     (A)(ii).
       ``(ii) Period.--The period during which the Attorney 
     General may continue surveillance of a target under this 
     title after the Attorney General has determined that making 
     an application is practicable shall be limited to a 
     reasonable period, as determined by the Attorney General, 
     during which the application is prepared and the period 
     during which the application of the Attorney General under 
     section 104 for an order for electronic surveillance of the 
     target under section 105 is pending under title I, including 
     during any period in which appeal from the denial of the 
     application is pending with the Foreign Intelligence 
     Surveillance Court of Review or the Supreme Court under 
     section 103(b).
       ``(b) Mandatory Transfer for Review.--
       ``(1) In general.--In any case before any court challenging 
     the legality of classified communications intelligence 
     activity relating to a foreign threat, including an 
     electronic surveillance program, or in which the legality of 
     any such activity or program is in issue, if the Attorney 
     General files an affidavit under oath that the case should be 
     transferred to the Foreign Intelligence Surveillance Court of 
     Review because further proceedings in the originating court 
     would harm the national security of the United States, the 
     originating court shall transfer the case of the Foreign 
     Intelligence Surveillance for further proceedings under this 
     subsection.
       ``(2) Procedures for review.--The Foreign Intelligence 
     Surveillance Court shall have jurisdiction as appropriate to 
     determine standing and the legality of the program to the 
     extent necessary for resolution of the underlying case. All 
     proceedings under this paragraph shall be conducted in 
     accordance with the procedures set forth in section 106(f). 
     In the event the Foreign Intelligence Surveillance Court 
     determines that, in the context of a criminal proceeding, the 
     Constitution of the United States would require the 
     disclosure of national security information, any such 
     constitutionally required disclosure shall be governed by the 
     Classified Information Procedures Act, (18 U.S.C. App.), or 
     if applicable, section 2339B(f) of title 18, United States 
     Code.
       ``(3) Appeal, certiorari, and effects of decisions.--The 
     decision of the Foreign Intelligence Surveillance Court made 
     under paragraphs (1) and (2), including a decision that the 
     disclosure of national security information is 
     constitutionally required, shall be subject to review by the 
     Foreign Intelligence Surveillance Court of Review under 
     section 103(b). The Supreme Court of the United States shall 
     have jurisdiction to review decisions of the Foreign 
     Intelligence Surveillance Court of Review by writ of 
     certiorari granted upon the petition of the United States. 
     The decision by the Foreign Intelligence Surveillance Court 
     shall otherwise be binding in all other courts.
       ``(4) Dismissal.--The Foreign Intelligence Surveillance 
     Court or a court that is an originating court under paragraph 
     (1) may dismiss a challenge to the legality of an electronic 
     surveillance program for any reason provided for under law.
       ``(5) Preservation of litigation privileges.--Nothing in 
     this Act shall be construed to abrogate, limit, or affect any 
     litigation privileges in any court.''.

     SEC. 205. APPLICATIONS FOR APPROVAL OF ELECTRONIC 
                   SURVEILLANCE PROGRAMS.

       Title VII of the Foreign Intelligence Surveillance Act of 
     1978, as amended by section 4, is amended by adding at the 
     end the following:

     ``SEC. 703. APPLICATIONS FOR APPROVAL OF ELECTRONIC 
                   SURVEILLANCE PROGRAMS.

       ``(a) In General.--Each application for approval of an 
     electronic surveillance program under this title (including 
     resubmission or application for reauthorization) shall--
       ``(1) be made by the Attorney General or his designee;
       ``(2) include a statement of the authority conferred on the 
     Attorney General by the President of the United States;
       ``(3) include a statement setting forth the legal basis for 
     the conclusion by the Attorney General that the electronic 
     surveillance program is consistent with the Constitution of 
     the United States;
       ``(4) certify that a significant purpose of the electronic 
     surveillance program is to obtain foreign intelligence 
     information or to protect against international terrorism;
       ``(5) certify that the information sought cannot reasonably 
     be obtained by normal investigative techniques
       ``(6) certify that the information sought cannot reasonably 
     be obtained through an application under section 104;
       ``(7) include a statement of the means and operational 
     procedures by which the electronic surveillance will be 
     executed and effected;
       ``(8) include an explanation of how the electronic 
     surveillance program is reasonably designed to ensure that 
     the communications that are acquired are communications of or 
     with--
       ``(A) a foreign power that engages in international 
     terrorism or activities in preparation therefor;
       ``(B) an agent of a foreign power that engages in 
     international terrorism or activities in preparation 
     therefor;
       ``(C) a person reasonably believed to have communication 
     with or be associated with a foreign power that engages in 
     international terrorism or activities in preparation therefor 
     or an agent of a foreign power that engages in international 
     terrorism or activities in preparation therefor; or
       ``(D) a foreign power that poses an imminent threat of 
     attack likely to cause death, serious injury, or substantial 
     economic damage to the United States, or an agent of a 
     foreign power thereof;
       ``(9) include a statement of the proposed minimization 
     procedures;
       ``(10) if the electronic surveillance program that is the 
     subject of the application was initiated prior to the date 
     the application was submitted, specify the date that the 
     program was initiated;
       ``(11) include a description of all previous applications 
     that have been made under this title involving the electronic 
     surveillance program in the application (including the 
     minimization procedures and the means and operational 
     procedures proposed) and the decision on each previous 
     application; and
       ``(12) include a statement of facts concerning the 
     implementation of the electronic surveillance program 
     described in the application, including, for any period of 
     operation of the program authorized not less than 90 days 
     prior to the date of submission of the application--
       ``(A) the minimization procedures implemented; and
       ``(B) the means and operational procedures by which the 
     electronic surveillance was executed and effected.
       ``(b) Additional Information.--The Foreign Intelligence 
     Surveillance Court may require the Attorney General to 
     furnish such other information as may be necessary to make a 
     determination under section 704.''.

     SEC. 206. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

       Title VII of the Foreign Intelligence Surveillance Act 18 
     of 1978, as amended by section 5, is amended by adding at the 
     end the following:

     ``SEC. 704. APPROVAL OF ELECTRONIC SURVEILLANCE PROGRAMS.

       ``(a) Necessary Findings.--Upon receipt of an application 
     under section 703, the Foreign Intelligence Surveillance 
     Court shall enter an ex parte order as requested, or as 
     modified, approving the electronic surveillance program if it 
     finds that--
       ``(1) the President has authorized the Attorney General to 
     make the application for electronic surveillance for foreign 
     intelligence information or to protect against international 
     terrorism;
       ``(2) approval of the electronic surveillance program in 
     the application is consistent with the Constitution of the 
     United States;

[[Page S10030]]

       ``(3) the electronic surveillance program is reasonably 
     designed to ensure that the communications that are acquired 
     are communications of or with--
       ``(A) a foreign power that engages in international 
     terrorism or activities in preparation therefor;
       ``(B) an agent of a foreign power that is engaged in 
     international terrorism or activities in preparation 
     therefor;
       ``(C) a person reasonably believed to have communication 
     with or be associated with a foreign power that is engaged in 
     international terrorism or activities in preparation therefor 
     or an agent of a foreign power that is engaged in 
     international terrorism or activities in preparation 
     therefor; or
       ``(D) a foreign power that poses an imminent threat of 
     attack likely to cause death, serious injury, or substantial 
     economic damage to the United States, or an agent of a 
     foreign power thereof;
       ``(4) the proposed minimization procedures meet the 
     definition of minimization procedures under section 101(h); 
     and
       ``(5) the application contains all statements and 
     certifications required by section 703.
       ``(b) Considerations.--In considering the constitutionality 
     of the electronic surveillance program under subsection (a), 
     the Foreign Intelligence Surveillance Court may consider--
       ``(1) whether the electronic surveillance program has been 
     implemented in accordance with the proposal by the Attorney 
     General, by comparing--
       ``(A) the minimization procedures proposed with the 
     minimization procedures actually implemented;
       ``(B) the nature of the information sought with the nature 
     of the information actually obtained; and
       ``(C) the means and operational procedures proposed with 
     the means and operational procedures actually implemented; 
     and
       ``(2) whether foreign intelligence information has been 
     obtained through the electronic surveillance program.
       ``(c) Contents of Order.--An order approving an electronic 
     surveillance program under this section shall direct--
       ``(1) that the minimization procedures be followed;
       ``(2) that, upon the request of the applicant, specified 
     communication or other common carriers, landlords, 
     custodians, or other specified persons, furnish the applicant 
     forthwith with all information, facilities, or technical 
     assistance necessary to undertake the electronic surveillance 
     program in such a manner as will protect its secrecy and 
     produce a minimum of interference with the services that such 
     carriers, landlords, custodians, or other persons are 
     providing potential targets of the electronic surveillance 
     program;
       ``(3) that any records concerning the electronic 
     surveillance program or the aid furnished or retained by such 
     carriers, landlords, custodians, or other persons are 
     maintained under security procedures approved by the Attorney 
     General and the Director of National Intelligence; and
       ``(4) that the applicant compensate, at the prevailing 
     rate, such carriers, landlords, custodians, or other persons 
     for furnishing such aid.''.

     SEC. 207. CONGRESSIONAL OVERSIGHT.

       Title VII of the Foreign Intelligence Surveillance Act of 
     1978, as amended by section 6, is amended by adding at the 
     end the following:

     ``SEC. 705. CONGRESSIONAL OVERSIGHT.

       ``(a) In General.--Not less often than every 180 days, the 
     Attorney General shall submit to the congressional 
     intelligence committees a report in classified form on the 
     activities during the previous 180-day period under any 
     electronic surveillance program authorized under this title.
       ``(b) Contents.--Each report submitted under subsection (a) 
     shall provide, with respect to the previous 180-day period, a 
     description of--
       ``(1) the minimization procedures implemented;
       ``(2) the means and operational procedures by which the 
     electronic surveillance program was executed and effected;
       ``(3) significant decisions of the Foreign Intelligence 
     Surveillance Court on applications made under section 703;
       ``(4) the total number of applications made for orders 
     approving electronic surveillance programs pursuant to this 
     title; and
       ``(5) the total number of orders applied for that have been 
     granted, modified, or denied.
       ``(c) Rule of Construction.--Nothing in this title shall be 
     construed to limit the authority or responsibility of any 
     committee of either House of Congress to obtain such 
     information as such committee may need to carry out its 
     respective functions and duties.''.

     SEC. 208. CLARIFICATION OF THE FOREIGN INTELLIGENCE 
                   SURVEILLANCE ACT OF 1978.

       (a) Repeal.--Sections 111, 309, and 404 of the Foreign 
     Intelligence Surveillance Act of 1978 (50 U.S.C. 1811, 1829, 
     and 1844) are repealed.
       (b) Clarifying Amendments.--
       (1) Title 18.--Section 2511(2) of title 18, United States 
     Code, is amended--
       (A) in paragraph (e), by striking ``, as defined in section 
     101'' and all that follows through the end of the paragraph 
     and inserting the following: ``under the Constitution or the 
     Foreign Intelligence Surveillance Act of 1978.''; and
       (B) in paragraph (f), by striking ``from international or 
     foreign communications,'' and all that follows through the 
     end of the paragraph and inserting ``that is authorized under 
     a Federal statute or the Constitution of the United 
     States.''.
       (2) FISA.--Section 109 of the Foreign Intelligence 
     Surveillance Act of 1978 (50 U.S.C. 1809) is amended--
       (A) in subsection (a)--
       (i) in paragraph (1)--

       (I) by striking ``authorized by statute'' and inserting 
     ``authorized by law''; and
       (II) by striking ``or'' at the end;

       (ii) in paragraph (2)--

       (I) by striking ``authorized by statute'' and inserting 
     ``authorized by law''; and
       (II) by striking the period and inserting ``; or''; and

       (iii) by adding at the end the following:
       ``(3) and knowingly discloses or uses information obtained 
     under color of law by electronic surveillance in a manner or 
     for a purpose not authorized by law.''; and
       (B) in subsection (c)--
       (i) by striking ``$10,000'' and inserting ``$100,000''; and
       (ii) by striking ``five years'' and inserting ``15 years''.

     SEC. 209. MODERNIZING AMENDMENTS TO FISA.

       (a) Reference.--In this section, a reference to ``FISA'' 
     shall mean the Foreign Intelligence Surveillance Act of 1978 
     (50 U.S.C. 1801 et seq.).
       (b) Definitions.--Section 101 of FISA (50 U.S.C. 1801) is 
     amended--
       (1) in subsection (b)(1)--
       (A) in subparagraph (C), by striking ``or'' after the 
     semicolon; and
       (B) by adding at the end the following:
       ``(D) otherwise is reasonably expected to possess, control, 
     transmit, or receive foreign intelligence information while 
     that person is in the United States, provided that the 
     official making the certification required by section 
     104(a)(6) deems such foreign intelligence information to be 
     significant; or'';
       (2) by striking subsection (f) and inserting the following:
       ``(f) `Electronic surveillance' means--
       ``(1) the installation or use of an electronic, mechanical, 
     or other surveillance device for acquiring information by 
     intentionally directing the surveillance at a particular 
     known person who is reasonably believed to be in the United 
     States under circumstances in which that person has a 
     reasonable expectation of privacy and a warrant would be 
     required for law enforcement purposes; or
       ``(2) the intentional acquisition of the contents of any 
     communication under circumstances in which a person has a 
     reasonable expectation of privacy and a warrant would be 
     required for law enforcement purposes, and if both the sender 
     and all intended recipients are reasonably believed to be 
     located within the United States.'';
       (3) in subsection (h), by striking paragraph (4) and 
     inserting the following:
       ``(4) notwithstanding paragraphs (1), (2), and (3), with 
     respect to any electronic surveillance approved pursuant to 
     section 102 or 704, procedures that require that no contents 
     of any communication originated or sent by a United States 
     person shall be disclosed, disseminated, used or retained for 
     longer than 7 days unless a court order under section 105 is 
     obtained or unless the Attorney General determines that the 
     information indicates a threat of death or serious bodily 
     harm to any person.''.
       (4) by striking subsection (l); and
       (5) by striking subsection (n) and inserting the following:
       ``(n) `contents', when used with respect to a 
     communication, includes any information concerning the 
     substance, symbols, sounds, words, purport, or meaning of a 
     communication, and does not include dialing, routing, 
     addressing, or signaling information.''.
       (c) Electronic Surveillance Authorization.--Section 102 of 
     FISA (50 U.S.C. 1802) is amended to read as follows:


     ``ELECTRONIC SURVEILLANCE AUTHORIZATION WITHOUT COURT ORDER; 
CERTIFICATION BY ATTORNEY GENERAL; REPORTS TO CONGRESSIONAL COMMITTEES; 
TRANSMITTAL UNDER SEAL; DUTIES AND COMPENSATION OF COMMUNICATION COMMON 
              CARRIER; APPLICATIONS; JURISDICTION OF COURT

       ``Sec. 102.  (a)(1) Notwithstanding any other law, the 
     President through the Attorney General, may authorize 
     electronic surveillance without a court order under this 
     title to acquire foreign intelligence information for periods 
     of up to 1 year if the Attorney General certifies in writing 
     under oath that the electronic surveillance is directed at--
       ``(A)(i) the acquisition of the contents of communications 
     of foreign powers, as defined in paragraph (1), (2), or (3) 
     of section 101(a), or a person other than a United States 
     person acting as an agent of a foreign power, as defined in 
     section 101(b)(1)(A) or (B); or
       ``(ii) the acquisition of technical intelligence, other 
     than the spoken communications of individuals, from property 
     or premises under the open and exclusive control of a foreign 
     power, as defined in paragraph (1), (2), or (3) of section 
     101(a); and
       ``(B) the proposed minimization procedures with respect to 
     such surveillance meet the definition of minimization 
     procedures under section 101(h);

     if the Attorney General reports such minimization procedures 
     and any changes thereto to the Select Committee on 
     Intelligence of

[[Page S10031]]

     the Senate and the Permanent Select Committee on Intelligence 
     of the House of Representatives at least 30 days prior to 
     their effective date, unless the Attorney General determines 
     immediate action is required and notifies the committees 
     immediately of such minimization procedures and the reason 
     for their becoming effective immediately.
       ``(2) An electronic surveillance authorized by this 
     subsection may be conducted only in accordance with the 
     Attorney General's certification and the minimization 
     procedures. The Attorney General shall assess compliance with 
     such procedures and shall report such assessments to the 
     Select Committee on Intelligence of the Senate and the 
     Permanent Select Committee on Intelligence of the House of 
     Representatives under section 108(a). If an electronic 
     surveillance authorized by this subsection is directed at an 
     agent of a foreign power, the Attorney General's report 
     assessing compliance with the minimization procedures shall 
     also include a statement of the facts and circumstances 
     relied upon to justify the belief that the target of the 
     electronic surveillance is an agent of a foreign power.
       ``(3) The Attorney General shall immediately transmit under 
     seal to the court established under section 103(a) a copy of 
     any certification under this subsection. Such certification 
     shall be maintained under security measures established by 
     the Chief Justice with the concurrence of the Attorney 
     General, in consultation with the Director of National 
     Intelligence, and shall remain sealed unless--
       ``(A) an application for a court order with respect to the 
     surveillance is made under section 104; or
       ``(B) the certification is necessary to determine the 
     legality of the surveillance under section 106(f).
       ``(b)(1) Notwithstanding any other provision of law, the 
     President, through the Attorney General, may authorize the 
     acquisition of foreign intelligence information for periods 
     of up to 1 year concerning a person reasonably believed to be 
     outside the United States if the Attorney General certifies 
     in writing under oath that he has determined that--
       ``(A) the acquisition does not constitute electronic 
     surveillance as defined in section 101(f);
       ``(B) the acquisition involves obtaining the foreign 
     intelligence information from or with the assistance of a 
     wire or electronic communications service provider, 
     custodian, or other person (including any officer, employee, 
     agent, or other specified person thereof) who has access to 
     wire or electronic communications, either as they are 
     transmitted or while they are stored, or equipment that is 
     being or may be used to transmit or store such 
     communications;
       ``(C) a significant purpose of the acquisition is to obtain 
     foreign intelligence information; and
       ``(D) the minimization procedures to be employed with 
     respect to such acquisition activity meet the definition of 
     minimization procedures under section 101(h).
       ``(2) Such certification need not identify the specific 
     facilities, places, premises, or property at which the 
     acquisition will be directed.
       ``(3) An acquisition undertaken pursuant to this subsection 
     may be conducted only in accordance with the Attorney 
     General's certification and the minimization procedures 
     adopted by the Attorney General. The Attorney General shall 
     assess compliance with such procedures and shall report such 
     assessments to the Select Committee on Intelligence of the 
     Senate and the Permanent Select Committee on Intelligence of 
     the House of Representatives under section 108(a).
       ``(4) The Attorney General shall immediately transmit under 
     seal to the court established under section 103(a) a copy of 
     any certification of the Attorney General under this 
     subsection. Such certification shall be maintained under 
     security measures established by the Chief Justice with the 
     concurrence of the Attorney General, in consultation with the 
     Director of National Intelligence, and shall remain sealed 
     unless the certification is necessary to determine the 
     legality of the acquisition under subsection (o).
       ``(c) With respect to the acquisition authorized under this 
     section, the Attorney General may direct a specified person 
     to--
       ``(1) furnish the government forthwith all information, 
     facilities, and assistance necessary to accomplish the 
     acquisition in such a manner as will protect its secrecy and 
     produce a minimum of interference with the services that such 
     person is providing to the target; and
       ``(2) maintain under security procedures approved by the 
     Attorney General and the Director of National Intelligence 
     any records concerning the acquisition or the aid furnished 
     that such person wishes to maintain.
       ``(d) The government shall compensate, at the prevailing 
     rate, such specified person for furnishing the aid set forth 
     in subsection (c).
       ``(e) In the case of a failure to comply with a directive 
     issued pursuant to this section, the Attorney General may 
     invoke the aid of the court established under section 103(a) 
     to compel compliance with the directive. The court shall 
     issue an order requiring the person or entity to comply with 
     the directive forthwith if it finds that the directive was 
     issued in accordance with subsection (a) or (b) and is 
     otherwise lawful. Any failure to obey the order of the court 
     may be punished by the court as contempt thereof. Any process 
     under this section may be served in any judicial district in 
     which the person or entity may be found.
       ``(f)(1)(A) A person receiving an Attorney General 
     directive issued pursuant to this section may challenge the 
     legality of that directive by filing a petition with the pool 
     established by section 103(e)(1).
       ``(B) The presiding judge shall immediately assign a 
     petition to one of the judges serving in the pool established 
     by section 103(e)(1). Not later than 24 hours after the 
     assignment of such petition, the assigned judge shall conduct 
     an initial review of the directive. If the assigned judge 
     determines that the petition is frivolous, the assigned judge 
     shall immediately deny the petition and affirm the directive 
     or any part thereof that is the subject of the petition. If 
     the assigned judge determines the petition is not frivolous, 
     the assigned judge shall within 72 hours consider the 
     petition in accordance with the procedures established under 
     section 103(e)(2) and provide a written statement for the 
     record of the reasons for any determination under this 
     subsection.
       ``(2) A judge considering a petition to modify or set aside 
     a directive may grant such petition only if the judge finds 
     that such directive does not meet the requirements of this 
     section or is otherwise unlawful. If the judge does not 
     modify or set aside the directive, the judge shall 
     immediately affirm such directive, and order the recipient to 
     comply therewith.
       ``(3) Any directive not explicitly modified or set aside 
     consistent with this subsection shall remain in full effect.
       ``(g) A petition for review of a decision under subsection 
     (f) to affirm, modify, or set aside a directive by the 
     Government or any person receiving such directive shall be 
     made within 7 days of issuance of the decision required by 
     subsection (f) to the court of review established under 
     section 103(b), which shall have jurisdiction to consider 
     such petitions. The court of review shall provide for the 
     record a written statement of the reasons for its decision 
     and, on petition by the Government or any person receiving 
     such directive for a writ of certiorari, the record shall be 
     transmitted under seal to the Supreme Court of the United 
     States, which shall have jurisdiction to review such 
     decision.
       ``(h) Judicial proceedings under this section shall be 
     concluded as expeditiously as possible. The record of 
     proceedings, including petitions filed, orders granted, and 
     statements of reasons for decision, shall be maintained under 
     security measures established by the Chief Justice of the 
     United States, in consultation with the Attorney General and 
     the Director of National Intelligence.
       ``(i) All petitions under this section shall be filed under 
     seal. In any proceedings under this section, the court shall, 
     upon request of the Government, review ex parte and in camera 
     any Government submission, or portions thereof, which may 
     include classified information.
       ``(j) No cause of action shall lie in any court against any 
     provider of a communication service or other person 
     (including any officer, employee, agent, or other specified 
     person thereof) for furnishing any information, facilities, 
     or assistance in accordance with a directive under subsection 
     (a) or (b).
       ``(k) Information acquired pursuant to an Attorney General 
     authorization under this section concerning any United States 
     person may be used and disclosed by Federal officers and 
     employees without the consent of the United States person 
     only in accordance with the minimization procedures required 
     by subsection (a) or (b), as applicable. No otherwise 
     privileged communication obtained in accordance with, or in 
     violation of, the provisions of this section shall lose its 
     privileged character. No information from an acquisition 
     under this section may be used or disclosed by Federal 
     officers or employees except for lawful purposes.
       ``(l) No information acquired pursuant to this section 
     shall be disclosed for law enforcement purposes unless such 
     disclosure is accompanied by a statement that such 
     information, or any information derived therefrom, may only 
     be used in a criminal proceeding with the advance 
     authorization of the Attorney General.
       ``(m) Whenever the Government intends to enter into 
     evidence or otherwise use or disclose in any trial, hearing, 
     or other proceeding in or before any court, department, 
     officer, agency, regulatory body, or other authority of the 
     United States, against an aggrieved person, any information 
     obtained or derived from an acquisition under this section, 
     the Government shall, prior to the trial, hearing, or other 
     proceeding or at a reasonable time prior to an effort to so 
     disclose or so use that information or submit it in evidence, 
     notify the aggrieved person and the court or other authority 
     in which the information is to be disclosed or used that the 
     Government intends to so disclose or so use such information.
       ``(n) Whenever any State or political subdivision thereof 
     intends to enter into evidence or otherwise use or disclose 
     in any trial, hearing, or other proceeding in or before any 
     court, department, officer, agency, regulatory body, or other 
     authority of a State or a political subdivision thereof, 
     against an aggrieved person any information obtained or 
     derived from an acquisition under this section, the State or 
     political subdivision thereof shall notify the aggrieved 
     person, the court or other authority in which the information 
     is to be disclosed or used, and the Attorney General that the 
     State or political subdivision thereof intends to so disclose 
     or so use such information.

[[Page S10032]]

       ``(o) Any person against whom evidence obtained or derived 
     from an acquisition authorized pursuant to this section to 
     which he is an aggrieved person is to be, or has been, 
     introduced or otherwise used or disclosed in any trial, 
     hearing, or other proceeding in or before any court, 
     department, officer, agency, regulatory body, or other 
     authority of the United States, a State, or a political 
     subdivision thereof, may move to suppress the evidence 
     obtained or derived from such acquisition on the grounds 
     that--
       ``(1) the information was unlawfully acquired; or
       ``(2) the acquisition was not made in conformity with an 
     order of authorization or approval.

     Such a motion shall be made before the trial, hearing, or 
     other proceeding unless there was no opportunity to make such 
     a motion or the person was not aware of the grounds of the 
     motion.
       ``(p) Whenever a court or other authority is notified 
     pursuant to subsection (m) or (n), whenever a motion is made 
     pursuant to subsection (o), or whenever any motion or request 
     is made by an aggrieved person pursuant to any other statute 
     or rule of the United States or any State before any court or 
     other authority of the United States or any State to discover 
     or obtain an Attorney General directive or other materials 
     relating to the acquisition authorized under this section or 
     to discover, obtain, or suppress evidence or information 
     obtained or derived from the acquisition authorized under 
     this section, the United States district court or, where the 
     motion is made before another authority, the United States 
     district court in the same district as the authority, shall, 
     notwithstanding any other law, if the Attorney General files 
     an affidavit under oath that disclosure or an adversary 
     hearing would harm the national security of the United 
     States, review in camera and ex parte the directive, and such 
     other materials relating to the acquisition as may be 
     necessary to determine whether the acquisition authorized 
     under this section was lawfully authorized and conducted. In 
     making this determination, the court may disclose to the 
     aggrieved person, under appropriate security procedures and 
     protective orders, portions of the directive or other 
     materials relating to the acquisition only where such 
     disclosure is necessary to make an accurate determination of 
     the legality of the acquisition.
       ``(q) If the United States district court pursuant to 
     subsection (o) determines that the acquisition authorized 
     under this section was not lawfully authorized or conducted, 
     it shall, in accordance with the requirements of law, 
     suppress the evidence which was unlawfully obtained or 
     derived or otherwise grant the motion of the aggrieved 
     person. If the court determines that such acquisition was 
     lawfully authorized and conducted, it shall deny the motion 
     of the aggrieved person except to the extent that due process 
     requires discovery or disclosure.
       ``(r) Orders granting motions or requests under subsection 
     (o), decisions under this section that an acquisition was not 
     lawfully authorized or conducted, and orders of the United 
     States district court requiring review or granting disclosure 
     of directives or other materials relating to such acquisition 
     shall be final orders and binding upon all courts of the 
     United States and the several States except a United States 
     court of appeals and the Supreme Court.
       ``(s) Federal officers who acquire foreign intelligence 
     information under this section may consult with Federal law 
     enforcement officers or law enforcement personnel of a State 
     or political subdivision of a State (including the chief 
     executive officer of that State or political subdivision who 
     has the authority to appoint or direct the chief law 
     enforcement officer of that State or political subdivision) 
     to coordinate efforts to investigate or protect against--
       ``(1) actual or potential attack or other grave hostile 
     acts of a foreign power or an agent of a foreign power;
       ``(2) sabotage, international terrorism, or the development 
     or proliferation of weapons of mass destruction by a foreign 
     power or an agent of a foreign power; or
       ``(3) clandestine intelligence activities by an 
     intelligence service or network of a foreign power or by an 
     agent of a foreign power.
       ``(t) Coordination authorized by subsection (s) shall not 
     preclude the certification required by subsection (a) or (b), 
     as applicable.
       ``(u) Retention of Directives and Orders.--Directives made 
     and orders granted under this section shall be retained for a 
     period of at least 10 years from the date when they were 
     made.''.
       (d) Designation of Judges.--Section 103 of FISA (50 U.S.C. 
     1803) is amended--
       (1) in subsection (a), by inserting, ``at least'' before 
     ``seven of the United States judicial circuits''; and
       (2) at the end by adding the following new subsection:
       ``(g) Applications for a court order under this title are 
     authorized if the President has, by written authorization, 
     empowered the Attorney General to approve applications to the 
     court having jurisdiction under this section, and a judge to 
     whom an application is made may, notwithstanding any other 
     law, grant an order, in conformity with section 105, 
     approving electronic surveillance of a foreign power or an 
     agent of a foreign power for the purpose of obtaining foreign 
     intelligence information.''.
       (e) Applications for Court Orders.--Section 104 of FISA (50 
     U.S.C. 1804) is amended--
       (1) in subsection (a), by striking paragraphs (6) through 
     (11) and inserting the following:
       ``(6) a certification or certifications by the Assistant to 
     the President for National Security Affairs or an executive 
     branch official authorized by the President to conduct 
     electronic surveillance for foreign intelligence purposes--
       ``(A) that the certifying official deems the information 
     sought to be foreign intelligence information;
       ``(B) that a significant purpose of the surveillance is to 
     obtain foreign intelligence information;
       ``(C) that such information cannot reasonably be obtained 
     by normal investigative techniques; and
       ``(D) including a statement of the basis for the 
     certification that--
       ``(i) the information sought is the type of foreign 
     intelligence information designated; and
       ``(ii) such information cannot reasonably be obtained by 
     normal investigative techniques;
       ``(7) a statement of the period of time for which the 
     electronic surveillance is required to be maintained, and if 
     the nature of the intelligence gathering is such that the 
     approval of the use of electronic surveillance under this 
     title should not automatically terminate when the described 
     type of information has first been obtained, a description of 
     facts supporting the belief that additional information of 
     the same type will be obtained thereafter;
       ``(8) a summary description of the nature of the 
     information sought and the type of communications or 
     activities to be subject to the surveillance;
       ``(9) a summary statement of the facts concerning all 
     previous applications that have been made to any judge under 
     this title involving any of the persons, facilities, or 
     places specified in the application, and the action taken on 
     each previous application; and
       ``(10) a summary statement of the means by which the 
     surveillance will be effected and a statement whether 
     physical entry is required to effect the surveillance.'';
       (2) by striking subsection (b);
       (3) by redesignating subsections (c) through (e) as 
     subsections (b) through (d), respectively; and
       (4) in subsection (d)(1)(A), as redesignated by paragraph 
     (3), by inserting after ``Secretary of State'' inserting 
     ``Director of the Central Intelligence Agency''.
       (f) Issuance of Order.--Section 105 of FISA (50 U.S.C. 
     1805) is amended--
       (1) in subsection (a), by--
       (A) striking paragraph (1); and
       (B) redesignating paragraphs (2) through (5) as paragraphs 
     (1) through (4), respectively;
       (2) by striking paragraph (1) of subsection (c) and 
     inserting the following:
       ``(1) An order approving an electronic surveillance under 
     this section shall specify--
       ``(A) the identity, if known, or a description of the 
     target of the electronic surveillance identified or described 
     in the application pursuant to section 104(a)(3);
       ``(B) the nature and location of each of the facilities or 
     places at which the electronic surveillance will be directed, 
     if known;
       ``(C) the period of time during which the electronic 
     surveillance is approved;
       ``(D) the type of information sought to be acquired and the 
     type of communications or activities to be subjected to the 
     surveillance; and
       ``(E) the means by which the electronic surveillance will 
     be effected and whether physical entry will be used to effect 
     the surveillance.'';
       (3) by striking subsection (d) and inserting the following:
       ``(d) Each order under this section shall specify the type 
     of electronic surveillance involved, including whether 
     physical entry is required.'';
       (4) by striking paragraph (2) of subsection (e) and 
     inserting the following:
       ``(2) Extensions of an order issued under this title may be 
     granted on the same basis as an original order upon an 
     application for an extension and new findings made in the 
     same manner as required for an original order and may be for 
     a period not longer than the court determines to be 
     reasonable or 1 year, whichever is less.'';
       (5) by striking subsection (f) and inserting the following:
       ``(f)(1) Notwithstanding any other provision of this title, 
     when an executive branch officer appointed by the President 
     with the advice and consent of the Senate who is authorized 
     by the President to conduct electronic surveillance 
     reasonably determines that--
       ``(A) an emergency situation exists with respect to the 
     employment of electronic surveillance to obtain foreign 
     intelligence information before an order authorizing such 
     surveillance can with due diligence be obtained; and
       ``(B) the factual basis for issuance of an order under this 
     title to approve such surveillance exists;

     that official may authorize the emergency employment of 
     electronic surveillance in accordance with paragraph (2).
       ``(2) Under paragraph (1), the following requirements shall 
     be satisfied:
       ``(A) The Attorney General shall be informed of the 
     emergency electronic surveillance.
       ``(B) A judge having jurisdiction under section 103 shall 
     be informed by the Attorney

[[Page S10033]]

     General or his designee as soon as practicable following such 
     authorization that the decision has been made to employ 
     emergency electronic surveillance.
       ``(C) An application in accordance with this title shall be 
     made to that judge or another judge having jurisdiction under 
     section 103 as soon as practicable, but not more than 7 days 
     after such surveillance is authorized. In the absence of a 
     judicial order approving such electronic surveillance, the 
     surveillance shall terminate when the information sought is 
     obtained, when the application for the order is denied, or 
     after the expiration of 7 days from the time of emergency 
     authorization, whichever is earliest. In the event that such 
     application for approval is denied, or in any other case 
     where the electronic surveillance is terminated and no order 
     is issued approving the surveillance, no information obtained 
     or evidence derived from such surveillance shall be received 
     in evidence or otherwise disclosed in any trial, hearing, or 
     other proceeding in or before any court, grand jury, 
     department, office, agency, regulatory body, legislative 
     committee, or other authority of the United States, a State, 
     or political subdivision thereof, and no information 
     concerning any United States person acquired from such 
     surveillance shall subsequently be used or disclosed in any 
     other manner by Federal officers or employees without the 
     consent of such person, except with the approval of the 
     Attorney General if the information indicates a threat of 
     death or serious bodily harm to any person. A denial of the 
     application made under this subsection may be reviewed as 
     provided in section 103.
       ``(D) The official authorizing the emergency employment of 
     electronic surveillance shall require that the minimization 
     procedures required by this title for the issuance of a 
     judicial order be followed.''; and
       (6) in subsection (i)--
       (A) by striking ``a wire or'' and inserting ``any'';
       (B) by striking ``chapter'' and inserting ``title''; and
       (C) by adding at the end ``, or in response to 
     certification by the Attorney General or his designee seeking 
     information, facilities, or technical assistance from such 
     person under section 102 of this title''.
       (g) Use of Information.--Section 106 of FISA (50 U.S.C. 
     1806) is amended--
       (1) in subsection (i)--
       (A) by striking ``radio''; and
       (B) by inserting ``contain foreign intelligence information 
     or'' after ``the Attorney General determines that the 
     contents'' inserting ``contain foreign intelligence 
     information or''; and
       (2) in subsection (k), by striking ``1804(a)(7)'' and 
     inserting ``104(a)(6)''.
       (h) Congressional Oversight.--Section 108 of FISA (50 
     U.S.C. 1808) is amended by adding at the end the following:
       ``(c) Document Management System for Applications for 
     Orders Approving Electronic Surveillance.--
       ``(1) System proposed.--The Attorney General and Director 
     of National Intelligence shall, in consultation with the 
     Director of the Federal Bureau of Investigation, the Director 
     of the National Security Agency, the Director of the Central 
     Intelligence Agency, and the court established under section 
     103(b), conduct a feasibility study to develop and implement 
     a secure, classified document management system that permits 
     the prompt preparation, modification, and review by 
     appropriate personnel of the Department of Justice, the 
     Federal Bureau of Investigation, the National Security 
     Agency, and other applicable elements of the United States 
     Government of applications under section 104 before their 
     submittal to that court.
       ``(2) Scope of system.--The document management system 
     proposed in paragraph (1) shall--
       ``(A) permit and facilitate the prompt submittal of 
     applications and all other matters, including electronic 
     filings, to the court established under section 103(b) under 
     section 104 or 105(g)(5); and
       ``(B) permit and facilitate the prompt transmittal of 
     rulings of that court to personnel submitting applications 
     described in paragraph (1).''.
       (i) Amendments to Fisa Title I Relating to Weapons of Mass 
     Destruction.--
       (1) Section 101 of FISA, as amended by subsection (b) of 
     this section, is further amended--
       (A) in subsection (b)(1)--
       (i) by striking ``or'' at the end of subparagraph (D);
       (ii) by redesignating subparagraph (E) as subparagraph (F); 
     and
       (iii) by inserting after subparagraph (D) the following new 
     subparagraph (E):
       ``(E) engages in the development or proliferation of 
     weapons of mass destruction, or activities in preparation 
     therefor; or;'';
       (B) in subsection (b)(2)(C), by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the development or proliferation 
     of weapons of mass destruction''; and
       (C) by inserting after subsection (k) the following new 
     subsection (l):
       ``(l) `Weapon of mass destruction' means--
       ``(1) any destructive device (as that term is defined in 
     section 921 of title 18, United States Code) that is intended 
     or has the capability, to cause death or serious bodily 
     injury to a significant number of people;
       ``(2) any weapon that is designed or intended to cause 
     death or serious bodily injury through the release, 
     dissemination, or impact of toxic or poisonous chemicals, or 
     their precursors;
       ``(3) any weapon involving a biological agent, toxin, or 
     vector (as those terms are defined in section 178 of title 
     18, United States Code); or
       ``(4) any weapon that is designed to release radiation or 
     radioactivity at a level dangerous to human life.''.
       (2) Sections 101(e)(1)(B), 106(k)(1)(B), and 305(k)(1)(B) 
     of FISA are each amended by striking ``sabotage or 
     international terrorism'' and inserting ``sabotage, 
     international terrorism, or the development or proliferation 
     of weapons of mass destruction''.
       (j) Conforming Amendments to Titles I and III of Fisa to 
     Accommodate International Movements of Targets.--
       (1) Section 105(e) of FISA is amended by adding at the end 
     the following new paragraph:
       ``(4) An order issued under this section shall remain in 
     force during the authorized period of surveillance 
     notwithstanding the absence of the target from the United 
     States, unless the Government files a motion to extinguish 
     the order and the court grants the motion.''.
       (2) Section 304(d) of FISA is amended by adding at the end 
     the following new paragraph:
       ``(4) An order issued under this section shall remain in 
     force during the authorized period of physical search 
     notwithstanding the absence of the target from the United 
     States, unless the Government files a motion to extinguish 
     the order and the court grants the motion.''.

     SEC. 210. CONFORMING AMENDMENT TO TABLE OF CONTENTS.

       The table of contents for the Foreign Intelligence 
     Surveillance Act of 1978 is amended--
       (1) by striking the item relating to section 102 and 
     inserting the following new item:

``Sec. 102. Electronic surveillance authorization without court order; 
              certification by attorney general; reports to 
              congressional committees; transmittal under seal; duties 
              and compensation of communication common carrier; 
              applications; jurisdiction of court.'';
       (2) by striking the items relating to sections 111, 309, 
     and 404; and
       (3) by striking the items related to title VII and section 
     701 and inserting the following:

             ``TITLE VII--ELECTRONIC SURVEILLANCE PROGRAMS

``Sec. 701. Definitions.
``Sec. 702. Foreign intelligence surveillance court jurisdiction to 
              review electronic surveillance programs.
``Sec. 703. Applications for approval of electronic surveillance 
              programs.
``Sec. 704. Approval of electronic surveillance programs.
``Sec. 705. Congressional oversight.

                      ``TITLE VIII--EFFECTIVE DATE

``Sec. 801.Effective date.''.
                                 ______