[Congressional Record (Bound Edition), Volume 152 (2006), Part 15]
[Senate]
[Pages 20017-20051]
[From the U.S. Government Publishing Office, www.gpo.gov]




                           TEXT OF AMENDMENTS

  SA 5075. Mr. LEVIN submitted an amendment intended to be proposed to 
amendment SA 5036 proposed by Mr. Frist to the bill H.R. 6061, to 
establish operational control over the international land and maritime 
borders of the United States; which was ordered to lie on the table; as 
follows:

       In lieu of the matter proposed to be inserted, insert the 
     following:

     SECTION 1. SHORT TITLE.

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

     SEC. 2. 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.
       (6) Military commissions established and operating under 
     chapter 47A of title 10, United States Code (as enacted by 
     this Act), are regularly constituted courts affording, in the 
     words of Common Article 3 of the Geneva Conventions, ``all 
     the judicial guarantees which are recognized as indispensable 
     by civilized peoples''.

     SEC. 3. 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.

[[Page 20018]]

       (2) Form.--Each report under this subsection shall be 
     submitted in unclassified form, but may include a classified 
     annex.

     SEC. 4. 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, 
     while instructive, is therefore not of its own force 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) 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 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.

     ``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 military commission under this chapter shall have 
     jurisdiction to try persons subject to this chapter for 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, and 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.

[[Page 20019]]



     ``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.
       ``(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.
       ``(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 cruel, inhuman, or degrading treatment.
``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 cruel, inhuman, or 
       degrading treatment

       ``(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 or Cruel, Inhuman, or 
     Degrading Treatment.--A statement obtained by use of torture 
     or by cruel, inhuman, or degrading treatment prohibited by 
     section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 
     2000dd), whether or not under color of law, shall not be 
     admissible in a military commission under this chapter, 
     except against a person accused of torture or such treatment 
     as evidence the statement was made.
       ``(c) Statements Obtained by Alleged Coercion Not Amounting 
     to Torture or Cruel, Inhuman, or Degrading Treatment.--An 
     otherwise admissible statement obtained through the use of 
     alleged coercion not amounting to torture or cruel, inhuman, 
     or degrading treatment prohibited by section 1003 of the 
     Detainee Treatment Act of 2005 may be admitted in evidence in 
     a military commission under this chapter only if the military 
     judge finds that--
       ``(1) the totality of the circumstances under which the 
     statement was made render it reliable and possessing 
     sufficient probative value; and
       ``(2) the interests of justice would best be served by 
     admission of the statement into evidence.

     ``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

[[Page 20020]]

     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) 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 
     only if--
       ``(i) the proponent of the evidence makes known to the 
     adverse party, sufficiently in advance of trial or hearing to 
     provide the adverse party with a fair opportunity to meet the 
     evidence, the proponent's intention to offer the evidence, 
     and the particulars of the evidence (including information on 
     the circumstances under which the evidence was obtained); and
       ``(ii) the military judge finds that the totality of the 
     circumstances render the evidence more probative on the point 
     for which it is offered than other evidence which the 
     proponent can procure through reasonable efforts, taking into 
     consideration the unique circumstances of the conduct of 
     military and intelligence operations during hostilities.
       ``(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.
       ``(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

[[Page 20021]]

     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.
       ``(4)(A) Subject to the provisions of this paragraph, 
     classified information shall be handled in accordance with 
     rules applicable in trials by general courts-martial of the 
     United States.
       ``(B) Classified information shall be protected and is 
     privileged from disclosure if disclosure would be detrimental 
     to the national security. This subparagraph applies to all 
     stages of proceedings of military commissions under this 
     chapter.
       ``(C) After the original classification authority or head 
     of the agency concerned has certified in writing that 
     evidence and the sources thereof have been declassified to 
     the maximum extent possible, consistent with the requirements 
     of national security, the military judge may, to the extent 
     practicable in accordance with the rules applicable in trials 
     by court-martial, authorize--
       ``(i) the deletion of specified items of classified 
     information from documents made available to the accused;
       ``(ii) the substitution of a portion or summary of the 
     information for such classified documents; or
       ``(iii) the substitution of a statement admitting relevant 
     facts that the classified information would tend to prove.
       ``(D) A claim of privilege under this paragraph, and any 
     materials in support thereof, shall, upon the request of the 
     Government, be considered by the military judge in camera and 
     shall not be disclosed to the accused.
       ``(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.

     ``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) Disclosure of Exculpatory Evidence.--As soon as 
     practicable, trial counsel in a military commission under 
     this chapter shall disclose to the defense the existence of 
     any known evidence that reasonably tends to exculpate or 
     reduce the degree of guilt of the accused.
       ``(c) Treatment of Certain Items.--In accordance with the 
     rules applicable in trials by general courts-martial in the 
     United States, and to the extent provided in such rules, the 
     military judge in a military commission under this chapter 
     may authorize trial counsel, in making documents available to 
     the accused pursuant to subsections (a) and (b)--
       ``(1) to delete specified items of classified information 
     from such documents;
       ``(2) to substitute an unclassified summary of the 
     classified information in such documents; or
       ``(3) to substitute an unclassified statement admitting 
     relevant facts that classified information in such documents 
     would tend to prove.

     ``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

[[Page 20022]]

     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--
       ``(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(c)(4) 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 United States Court of Appeals for the Armed Forces 
              and Supreme Court.
``950g. Appellate counsel
``950h. Execution of sentence; suspension of sentence.
``950i. 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

[[Page 20023]]

     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.
       ``(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 United 
     States Court of Appeals for the Armed Forces under section 
     950f(a) 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 United States Court of Appeals for the Armed Forces 
     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) or (d) 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 United States Court of 
     Appeals for the Armed Forces. 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 United States Court of Appeals for the 
       Armed Forces and Supreme Court

       ``(a) Review by United States Court of Appeals for the 
     Armed Forces.--(1) Subject to the provisions of this 
     subsection, the United States Court of Appeals for the Armed 
     Forces 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 Armed 
     Forces 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 Armed Forces 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 written notice of the final decision 
     of the military commission is served on the accused or 
     defense counsel.
       ``(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 Armed Forces 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 Armed Forces in a 
     determination under subsection (a).

     ``Sec. 950g. 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 Supreme Court in 
     case 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 
     Armed Forces or the Supreme Court by military appellate 
     counsel, or by civilian counsel if retained by him.

     ``Sec. 950h. 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--

[[Page 20024]]

       ``(A) the time for the accused to file a petition for 
     review by the United States Court of Appeals for the Armed 
     Forces 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 Armed Forces 
     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 any 
     sentence or part thereof in the case, except a sentence of 
     death.

     ``Sec. 950i. 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. Principals.
``950cc. Accessory after the fact.
``950dd. Conviction of lesser offenses.
``950ee. Attempts.
``950ff. Conspiracy.
``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, unusual, or inhumane treatment or punishment.
``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. Contempt.
``950iii. 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. Principals

       ``Any person punishable under this chapter who--
       ``(1) commits an offense punishable by this chapter, or 
     aids, abets, counsels, commands, or procures its commission; 
     or
       ``(2) causes an act to be done which if directly performed 
     by him would be punishable by this chapter,

     is a principal.

     ``Sec. 950cc. 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. 950dd. 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. 950ee. 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. 950ff. 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. 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.

[[Page 20025]]



     ``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 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, unusual, or inhumane treatment or 
       punishment

       ``Any person subject to this chapter who subjects another 
     person in their custody or under their physical control, 
     regardless of nationality or physical location, to cruel, 
     unusual, or inhumane treatment or punishment prohibited by 
     the Fifth, Eighth, and 14th Amendments to the Constitution of 
     the United States 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.

     ``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 20026]]

     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. 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. 950iii. 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. 5. 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 Armed Forces under 
     section 950f of title 10.''.
       (2) Detainee treatment act of 2005.--Section 1005(e) 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 paragraphs (3) and (4), by striking ``United States 
     Court of Appeals for the District of Columbia Circuit'' each 
     place it appears and inserting ``United States Court of 
     Appeals for the Armed Forces''; and
       (B) in paragraph (3)--
       (i) 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'';
       (ii) by striking subparagraph (B) and inserting the 
     following new subparagraph (B):
       ``(ii) Grant of review.--Review under this paragraph shall 
     be as of right.'';
       (iii) in subparagraph (C)--

       (I) in clause (i)--

       (aa) by striking ``pursuant to the military order'' and 
     inserting ``by a military commission''; and
       (bb) 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

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

     SEC. 6. 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 
     outside of the United States who--
       ``(A) is currently in United States custody; or
       ``(B) has been determined by the United States to have been 
     properly detained as an enemy combatant.
       ``(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, treatment, or trial of an alien detained outside 
     of the United States who--
       ``(A) is currently in United States custody; or
       ``(B) has been determined by the United States to have been 
     properly detained as an enemy combatant.
       ``(3) In this subsection, the term `United States', when 
     used in a geographic sense, has the meaning given that term 
     in section 1005(g) of the Detainee Treatment Act of 2005.''.
       (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, treatment, or trial of an 
     alien detained outside the United States (as that term is 
     defined in section 2241(e)(3) of title 28, United States Code 
     (as added by subsection (a)) since September 11, 2001.

     SEC. 7. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR 
                   CERTAIN CLAIMS.

       (a) In General.--No person may invoke the Geneva 
     Conventions or any protocols thereto as an individually 
     enforceable right in any civil action against an officer, 
     employee, member of the Armed Forces or another agent of the 
     United States Government, or against the United States, for 
     the purpose of any claim for damages for death, injury, or 
     damage to property in any court of the United States or its 
     States or territories. This subsection does not affect the 
     obligations of the United States under the Geneva 
     Conventions.
       (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 3114);
       (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. 8. REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL 
                   CODE.

       (a) In General.--Section 2441 of title 18, United States 
     Code, is amended--
       (1) in subsection (c), by striking paragraph (3) and 
     inserting the following new paragraph (3):

[[Page 20027]]

       ``(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
       (2) by adding at the end the following new subsection:
       ``(d) Common Article 3 Violations.--
       ``(1) Grave breach of common article 3.--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, unusual, or inhumane treatment or 
     punishment.--The act of a person who subjects another person 
     in the custody or under the physical control of the United 
     States Government, regardless of nationality or physical 
     location, to cruel, unusual, or inhumane treatment or 
     punishment prohibited by the Fifth, Eighth, and 14th 
     Amendments to the Constitution of the United States.
       ``(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 section, one or more persons 
     taking no active part in hostilities, including those placed 
     out of active 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 section, 
     one or more persons taking no active part in hostilities, 
     including those placed out of active combat by sickness, 
     wounds, detention, or any other cause, by disfiguring such 
     person or persons by any mutilation thereof or by permanently 
     disabling any member, limb, or organ of the body of such 
     person or persons, 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 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 paragraph (1)(A) 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; and
       ``(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.
       ``(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) of 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.''.
       (b) Construction.--Such section is further amended by 
     adding at the end the following new subsections:
       ``(e) Inapplicability of Foreign Sources of Law in 
     Interpretation.--No foreign source of law shall be considered 
     in defining or interpreting the obligations of the United 
     States under this title.
       ``(f) Nature of Criminal Sanctions.--The criminal sanctions 
     in this section provide penal sanctions under the domestic 
     law of the United States for grave breaches of the 
     international conventions done at Geneva August 12, 1949. 
     Such criminal sanctions do not alter the obligations of the 
     United States under those international conventions.''.
       (c) Protection of Certain United States Government 
     Personnel.--Such section is further amended by adding at the 
     end the following new subsection:
       ``(g) Protection of Certain United States Government 
     Personnel.--The provisions of section 1004 of the Detainee 
     Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with 
     respect to any criminal prosecution relating to the detention 
     and interrogation of individuals described in such provisions 
     that is grounded in an offense under subsection (a) by reason 
     of subsection (c)(3) with respect to actions occurring 
     between September 11, 2001, and December 30, 2005.''.

     SEC. 9. 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 amended by striking ``the Department of 
     Defense at Guantanamo Bay, Cuba'' and inserting ``the United 
     States''.

     SEC. 10. 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.
                                 ______
                                 
  SA 5076. Mr. DURBIN submitted an amendment intended to be proposed to 
amendment SA 5036 proposed by Mr. Frist to the bill H.R. 6061, to 
establish operational control over the international and maritime 
borders of the United States, which was ordered to lie on the table; as 
follows;

       On page __, between lines ___ and ___ and insert the 
     following:
       (3) Exception to retroactive applicability.--
     Notwithstanding paragraph (2), the amendments made by this 
     subsection shall take effect with respect to any individual 
     appointed by the President to a position in any agency or 
     department of the United States on the date of the enactment 
     of this Act
                                 ______
                                 
  SA 5077. Mr. BYRD submitted an amendment intended to be proposed to 
amendment SA 5036 proposed by Mr. Frist to the bill H.R. 6061, to 
establish operational control over the international land and maritime 
borders of the United States; which was ordered to lie in the table; as 
follows:

       On page 5, line 19, add at the end the following: ``The 
     authority of the President to establish new military 
     commissions under this section shall expire on December 31, 
     2011. However, the expiration of that authority shall not be 
     construed to prohibit the conduct to finality of any 
     proceedings of a military commission established under this 
     section before that date.''.
                                 ______
                                 
  SA 5078. Mr. ROCKEFELLER submitted an amendment intended to be 
proposed to amendment SA 5036 proposed by Mr. Frist to the bill H.R. 
6061, to establish operational control over the international land and 
maritime borders of the United States; which was ordered to lie on the 
table; as follows:

       At the end, add the following:

     SEC. 11. OVERSIGHT OF CENTRAL INTELLIGENCE AGENCY PROGRAMS.

       (a) Director of Central Intelligence Agency Reports on 
     Detention and Interrogation Program.--
       (1) Quarterly reports required.--Not later than three 
     months after the date of the enactment of this Act, and every 
     three months thereafter, the Director of the Central 
     Intelligence Agency shall submit to the congressional 
     intelligence committees a report on the detention and 
     interrogation program of the Central Intelligence Agency 
     during the preceding three months.
       (2) Elements.--In addition to any other matter necessary to 
     keep the congressional intelligence committees fully and 
     currently informed about the detention and interrogation 
     program of the Central Intelligence Agency, each report under 
     paragraph (1) shall include (but not be limited to), for the 
     period covered by such report, the following:

[[Page 20028]]

       (A) A description of any detention facility operated or 
     used by the Central Intelligence Agency.
       (B) A description of the detainee population, including--
       (i) the name of each detainee;
       (ii) where each detainee was apprehended;
       (iii) the suspected activities on the basis of which each 
     detainee is being held; and
       (iv) where each detainee is being held.
       (C) A description of each interrogation technique 
     authorized for use and guidelines on the use of each such 
     technique.
       (D) A description of each legal opinion of the Department 
     of Justice and the General Counsel of the Central 
     Intelligence Agency that is applicable to the detention and 
     interrogation program.
       (E) The actual use of interrogation techniques.
       (F) A description of the intelligence obtained as a result 
     of the interrogation techniques utilized.
       (G) Any violation of law or abuse under the detention and 
     interrogation program by Central Intelligence Agency 
     personnel, other United States Government personnel or 
     contractors, or anyone else associated with the program.
       (H) An assessment of the effectiveness of the detention and 
     interrogation program.
       (I) An appendix containing all guidelines and legal 
     opinions applicable to the detention and interrogation 
     program, if not included in a previous report under this 
     subsection.
       (b) Director of Central Intelligence Agency Reports on 
     Disposition of Detainees.--
       (1) Quarterly reports required.--Not later than three 
     months after the date of the enactment of this Act, and every 
     three months thereafter, the Director of the Central 
     Intelligence Agency shall submit to the congressional 
     intelligence committees a report on the detainees who, during 
     the preceding three months, were transferred out of the 
     detention program of the Central Intelligence Agency.
       (2) Elements.--In addition to any other matter necessary to 
     keep the congressional intelligence committees fully and 
     currently informed about transfers out of the detention 
     program of the Central Intelligence Agency, each report under 
     paragraph (1) shall include (but not be limited to), for the 
     period covered by such report, the following:
       (A) For each detainee who was transferred to the custody of 
     the Department of Defense for prosecution before a military 
     commission, the name of the detainee and a description of the 
     activities that may be the subject of the prosecution.
       (B) For each detainee who was transferred to the custody of 
     the Department of Defense for any other purpose, the name of 
     the detainee and the purpose of the transfer.
       (C) For each detainee who was transferred to the custody of 
     the Attorney General for prosecution in a United States 
     district court, the name of the detainee and a description of 
     the activities that may be the subject of the prosecution.
       (D) For each detainee who was rendered or otherwise 
     transferred to the custody of another nation--
       (i) the name of the detainee and a description of the 
     suspected terrorist activities of the detainee;
       (ii) the rendition process, including the locations and 
     custody from, through, and to which the detainee was 
     rendered; and
       (iii) the knowledge, participation, and approval of foreign 
     governments in the rendition process.
       (E) For each detainee who was rendered or otherwise 
     transferred to the custody of another nation during or before 
     the preceding three months--
       (i) the knowledge of the United States Government, if any, 
     concerning the subsequent treatment of the detainee and the 
     efforts made by the United States Government to obtain that 
     information;
       (ii) the requests made by United States intelligence 
     agencies to foreign governments for information to be 
     obtained from the detainee;
       (iii) the information provided to United States 
     intelligence agencies by foreign governments relating to the 
     interrogation of the detainee;
       (iv) the current status of the detainee;
       (v) the status of any parliamentary, judicial, or other 
     investigation about the rendition or other transfer; and
       (vi) any other information about potential risks to United 
     States interests resulting from the rendition or other 
     transfer.
       (c) CIA Inspector General and General Counsel Reports.--
       (1) Annual reports required.--Not later than one year after 
     the date of the enactment of this Act, and annually 
     thereafter, the Inspector General of the Central Intelligence 
     Agency and the General Counsel of the Central Intelligence 
     Agency shall each submit to the congressional intelligence 
     committees a report on the detention, interrogation and 
     rendition programs of the Central Intelligence Agency during 
     the preceding year.
       (2) Elements.--Each report under paragraph (1) shall 
     include, for the period covered by such report, the 
     following:
       (A) An assessment of the adherence of the Central 
     Intelligence Agency to any applicable law in the conduct of 
     the detention, interrogation, and rendition programs of the 
     Central Intelligence Agency.
       (B) Any violations of law or other abuse on the part of 
     personnel of the Central Intelligence Agency, other United 
     States Government personnel or contractors, or anyone else 
     associated with the detention, interrogation, and rendition 
     programs of the Central Intelligence Agency in the conduct of 
     such programs.
       (C) An assessment of the effectiveness of the detention, 
     interrogation, and rendition programs of the Central 
     Intelligence Agency.
       (D) Any recommendations to ensure that the detention, 
     interrogation, and rendition programs of the Central 
     Intelligence Agency are conducted in a lawful and effective 
     manner.
       (3) Construction of reporting requirement.--Nothing in this 
     subsection shall be construed to modify the authority and 
     reporting obligations of the Inspector General of the Central 
     Intelligence Agency under section 17 of the Central 
     Intelligence Agency Act of 1949 (50 U.S.C. 403q) or any other 
     law.
       (d) Certification of Compliance.--Not later than three 
     months after the date of the enactment of this Act, and 
     promptly upon any subsequent approval of interrogation 
     techniques for use by the Central Intelligence Agency, the 
     Attorney General shall submit to the congressional 
     intelligence committees--
       (1) an unclassified certification whether or not each 
     approved interrogation technique complies with the 
     Constitution of the United States and all applicable 
     treaties, statutes, Executive orders, and regulations; and
       (2) an explanation of why each approved technique complies 
     with the Constitution of the United States and all applicable 
     treaties, statutes, Executive orders, and regulations.
       (e) Form of Reports.--Except as provided in subsection 
     (d)(1), each report under this section shall be submitted in 
     classified form.
       (f) Availability of Reports.--Each report under this 
     section shall be fully accessible by each member of the 
     congressional intelligence committees.
       (g) Definitions.--In this section:
       (1) Congressional intelligence committees.--The term 
     ``congressional intelligence committees'' means--
       (A) the Select Committee on Intelligence of the Senate; and
       (B) the Permanent Select Committee on Intelligence of the 
     House of Representatives.
       (2) Law.--The term ``law'' includes the Constitution of the 
     United States and any applicable treaty, statute, Executive 
     order, or regulation.
                                 ______
                                 
  SA 5079. Mr. ROCKEFELLER submitted an amendment intended to be 
proposed to amendment SA 5036 proposed by Mr. Frist to the bill H.R. 
6061, to establish operational control over the international land and 
maritime borders of the United States; which was ordered to lie on the 
table; as follows:

       At the end, add the following:

     SEC. 11. DEADLINE FOR TRANSFER OF DETAINEES HELD BY THE 
                   CENTRAL INTELLIGENCE AGENCY.

       (a) Deadline for Transfer.--Except as provided in 
     subsection (b), not later than one year after the 
     commencement of the detention of an individual by the Central 
     Intelligence Agency, the Director of the Central Intelligence 
     Agency shall--
       (1) transfer the individual to the custody of the 
     Department of Defense for prosecution before a military 
     commission or for any other lawful purpose for which the 
     Department of Defense may hold the individual;
       (2) transfer the individual to the Attorney General for 
     prosecution in a United States district court; or
       (3) transfer the individual to a foreign nation in a manner 
     consistent with the treaty obligations of the United States.
       (b) Extension.--The President may extend the period 
     otherwise provided by subsection (a), as previously extended 
     (if at all) under this subsection, for the transfer of an 
     individual under this section by an additional period of 180 
     days if the President submits to the congressional 
     intelligence committees a classified certification that it is 
     in the national security interest of the United States to 
     retain the individual in the custody of the Central 
     Intelligence Agency for such additional period. A separate 
     certification shall be submitted with respect to each 
     extension under this subsection.
       (c) Congressional Intelligence Committees Defined.--In this 
     section, the term ``congressional intelligence committees'' 
     means--
       (1) the Select Committee on Intelligence of the Senate; and
       (2) the Permanent Select Committee on Intelligence of the 
     House of Representatives.
                                 ______
                                 
  SA 5080. Mr. MARTINEZ submitted an amendment intended to be proposed 
to amendment SA 5036 proposed by Mr. Frist to the bill H.R. 6061, to 
establish operational control over the international land and maritime 
borders of the United States; which was ordered to lie on the table; as 
follows:

       On page 2, line 18, strike ``prevention'' and all that 
     follows through line 21, and insert

[[Page 20029]]

     the following: ``effective prevention of unlawful entries 
     into the United States, including entries by terrorists, 
     other unlawful aliens, instruments of terrorism, narcotics, 
     and other contraband, as determined by the Secretary of 
     Homeland Security.''.
                                 ______
                                 
  SA 5081. Mr. SPECTER submitted an amendment intended to be proposed 
to amendment SA 5036 proposed by Mr. Frist to the bill H.R. 6061, to 
establish operational control over the international land and maritime 
borders of the United States; which was ordered to lie on the table; as 
follows:

       On page 93, strike line 5 and all that follows through page 
     94, line 9.
                                 ______
                                 
  SA 5082. Mr. SPECTER (for himself, Mr. Leahy, and Mr. Smith) 
submitted an amendment intended to be proposed to amendment SA 5036 
proposed by Mr. Frist to the bill H.R. 6061, to establish operational 
control over the international land and maritime borders of the United 
States; which was ordered to lie on the table; as follows:

       On page 94, line 2, strike the quotation marks and the 
     second period and insert the following:
       ``(3)(A) Paragraph (1) shall not apply to an application 
     for a writ of habeas corpus challenging the legality of the 
     detention of an alien described in paragraph (1), including a 
     claim of innocence, filed by or on behalf of such an alien 
     who has been detained by the United States for longer than 1 
     year.
       ``(B) No second or successive application for a writ of 
     habeas corpus may be filed by or on behalf of an alien 
     described in paragraph (1).''.
                                 ______
                                 
  SA 5083. Mr. KENNEDY submitted an amendment intended to be proposed 
to amendment SA 5036 proposed by Mr. Frist to the bill H.R. 6061, to 
establish operational control over the international land and maritime 
borders of the United States; which was ordered to lie on the table; as 
follows:

       On page 94, strike lines 10 through 12 and insert the 
     following:

     SEC. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005.

       (a) Permissible Interrogation Techniques.--
       (1) In general.--Section 1002 of the Detainee Treatment Act 
     of 2005 (title X of Public Law 109-148; 119 Stat. 2739; 10 
     U.S.C. 801 note) is amended by striking ``Department of 
     Defense'' each place it appears in subsections (a) and (b) 
     and inserting ``United States Government''.
       (2) Conforming amendment.--The heading of such section is 
     amended to read as follows:

     ``SEC. 1002. UNIFORM STANDARDS FOR THE INTERROGATION OF 
                   PERSONS UNDER THE DETENTION OF THE UNITED 
                   STATES GOVERNMENT.''.

                                 ______
                                 
  SA 5084. Mr. KENNEDY submitted an amendment intended to be proposed 
to amendment SA 5036 proposed by Mr. Frist to the bill H.R. 6061, to 
establish operational control over the international land and maritime 
borders of the United States; which was ordered to lie on the table; as 
follows:

       On page 83, between lines 8 and 9, insert the following:
       (2) Protection of united states persons.--The Secretary of 
     State shall notify other parties to the Geneva Conventions 
     that--
       (A) the United States has historically interpreted the law 
     of war and the Geneva Conventions, including in particular 
     common Article 3, to prohibit a wide variety of cruel, 
     inhuman, and degrading treatment of members of the United 
     States Armed Forces and United States persons;
       (B) during and following previous armed conflicts, the 
     United States Government has prosecuted persons for engaging 
     in cruel, inhuman, and degrading treatment, including the use 
     of waterboarding techniques, stress positions, including 
     prolonged standing, the use of extreme temperatures, 
     beatings, sleep deprivation, and other similar acts;
       (C) this Act and the amendments made by this Act preserve 
     the capacity of the United States to prosecute nationals of 
     enemy powers for engaging in acts against members of the 
     United States Armed Forces and United States persons that 
     have been prosecuted by the United States as war crimes in 
     the past; and
       (D) should any United States person be subjected to the 
     following acts, without limitation, under circumstances in 
     which the Geneva Conventions are applicable, the United 
     States would consider such acts to constitute punishable 
     offenses under common Article 3 and would act accordingly: 
     forcing the person to be naked, perform sexual acts, or pose 
     in a sexual manner; applying beatings, electric shocks, 
     burns, or other forms of physical pain to the person; 
     waterboarding the person; using dogs on the person; inducing 
     hypothermia or heat injury in the person; conducting a mock 
     execution of the person; and depriving the person of 
     necessary food, water, or medical care.
                                 ______
                                 
  SA 5085. Mr. FRIST proposed an amendment to the bill S. 3930, to 
authorize trial by military commission for violations of the law of 
war, and for other purposes; as follows:

       Strike all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

       (a) Short Title.--This Act may be cited as the ``Military 
     Commissions Act of 2006''.
       (b) Table of Contents.--The table of contents for this Act 
     is as follows:

Sec. 1. Short title; table of contents.
Sec. 2. Construction of Presidential authority to establish military 
              commissions.
Sec. 3. Military commissions.
Sec. 4. Amendments to Uniform Code of Military Justice.
Sec. 5. Treaty obligations not establishing grounds for certain claims.
Sec. 6. Implementation of treaty obligations.
Sec. 7. Habeas corpus matters.
Sec. 8. Revisions to Detainee Treatment Act of 2005 relating to 
              protection of certain United States Government personnel.
Sec. 9. Review of judgments of military commissions.
Sec. 10. Detention covered by review of decisions of Combatant Status 
              Review Tribunals of propriety of detention.

     SEC. 2. CONSTRUCTION OF PRESIDENTIAL AUTHORITY TO ESTABLISH 
                   MILITARY COMMISSIONS.

       The authority to establish military commissions under 
     chapter 47A of title 10, United States Code, as added by 
     section 3(a), may not be construed to alter or limit the 
     authority of the President under the Constitution of the 
     United States 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.

     SEC. 3. 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
``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........................................950p....

                   ``SUBCHAPTER I--GENERAL PROVISIONS

``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``948e. Annual report to congressional committees.

     ``Sec. 948a. Definitions

       ``In this chapter:
       ``(1) Unlawful enemy combatant.--(A) The term `unlawful 
     enemy combatant' means--
       ``(i) a person who has engaged in hostilities or who has 
     purposefully and materially supported hostilities against the 
     United States or its co-belligerents who is not a lawful 
     enemy combatant (including a person who is part of the 
     Taliban, al Qaeda, or associated forces); or
       ``(ii) a person who, before, on, or after the date of the 
     enactment of the Military Commissions Act of 2006, has been 
     determined to be an unlawful enemy combatant by a Combatant 
     Status Review Tribunal or another competent tribunal 
     established under the authority of the President or the 
     Secretary of Defense.
       ``(B) Co-belligerent.--In this paragraph, the term `co-
     belligerent', with respect to the United States, means any 
     State or armed force joining and directly engaged with the 
     United States in hostilities or directly supporting 
     hostilities against a common enemy.
       ``(2) Lawful enemy combatant.--The term `lawful enemy 
     combatant' means a person 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.
       ``(3) Alien.--The term `alien' means a person who is not a 
     citizen of the United States.
       ``(4) 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

[[Page 20030]]

     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)).
       ``(5) Geneva conventions.--The term `Geneva Conventions' 
     means the international conventions signed at Geneva on 
     August 12, 1949.

     ``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) Authority for Military Commissions Under This 
     Chapter.--The President is authorized to establish military 
     commissions under this chapter for offenses triable by 
     military commission as provided in this chapter.
       ``(c) 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 in this chapter. The judicial construction and 
     application of that chapter are not binding on military 
     commissions established under this chapter.
       ``(d) 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 this chapter.
       ``(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 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) Status of 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.
       ``(g) Geneva Conventions Not Establishing Source of 
     Rights.--No alien unlawful enemy combatant subject to trial 
     by military commission under this chapter may invoke the 
     Geneva Conventions as a source of rights.

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

       ``Any alien unlawful enemy combatant is subject to trial by 
     military commission under 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 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) Determination of Unlawful Enemy Combatant Status 
     Dispositive.--A finding, whether before, on, or after the 
     date of the enactment of the Military Commissions Act of 
     2006, by a Combatant Status Review Tribunal or another 
     competent tribunal established under the authority of the 
     President or the Secretary of Defense that a person is an 
     unlawful enemy combatant is dispositive for purposes of 
     jurisdiction for trial by military commission under this 
     chapter.
       ``(d) Punishments.--A military commission under this 
     chapter may, under such limitations as the Secretary of 
     Defense may prescribe, adjudge any punishment not forbidden 
     by this chapter, including the penalty of death when 
     authorized under this chapter or the law of war.

     ``Sec. 948e. Annual report to congressional committees

       ``(a) 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 under this chapter during such year.
       ``(b) Form.--Each report under this section shall be 
     submitted in unclassified form, but may include a classified 
     annex.

          ``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.
       ``(b) Detail of Members.--When convening a military 
     commission under this chapter, the convening authority shall 
     detail as members of the commission such members of the armed 
     forces eligible under subsection (a), 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) Qualifications.--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 of the commission 
     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 of the 
     commission.
       ``(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 against the accused.

[[Page 20031]]

       ``(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 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--
       ``(A) is 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) is 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--
       ``(A) is a member of the bar of a Federal court or of the 
     highest court of a State; and
       ``(B) is 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 commission qualified court reporters, who 
     shall make a verbatim recording of the proceedings of and 
     testimony taken before the 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 commission and, as necessary, for trial 
     counsel and defense counsel 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 commission, who shall also be 
     responsible for preparing the record of the proceedings.

     ``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.
       ``(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; treatment of 
              statements obtained by torture and other statements.
``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 the 
     signer's 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 against him as soon 
     as practicable.

     ``Sec. 948r. Compulsory self-incrimination prohibited; 
       treatment of statements obtained by torture and other 
       statements

       ``(a) In General.--No person shall be required to testify 
     against himself at a proceeding of a military commission 
     under this chapter.
       ``(b) Exclusion of 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 that 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 Defense 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 the 
     statement 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 Defense 
     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 the 
     statement 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 amount to cruel, inhuman, or degrading 
     treatment prohibited by section 1003 of the Detainee 
     Treatment Act of 2005.

     ``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. Such charges shall be 
     served in English and, if appropriate, in another language 
     that the accused understands. Such service shall be made 
     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, in 
     consultation with the Attorney General. Such procedures 
     shall, so far as the Secretary considers practicable or 
     consistent with military or intelligence activities, apply 
     the principles of law and the rules of evidence in trial by 
     general courts-martial. Such procedures and rules of evidence 
     may not be contrary to or inconsistent with this chapter.
       ``(b) Rules for Military Commission.--(1) Notwithstanding 
     any departures from the law and the rules of evidence in 
     trial by general courts-martial authorized by subsection (a), 
     the procedures and rules of evidence in trials by military 
     commission under this chapter shall include the following:

[[Page 20032]]

       ``(A) The accused shall be permitted to present evidence in 
     his defense, to cross-examine the witnesses who testify 
     against him, and to examine and respond to evidence admitted 
     against him on the issue of guilt or innocence and for 
     sentencing, as provided for by this chapter.
       ``(B) The accused shall 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) The accused shall receive the assistance of counsel 
     as provided for by section 948k.
       ``(D) The accused shall be permitted to represent himself, 
     as provided for by paragraph (3).
       ``(2) In establishing procedures and rules of evidence for 
     military commission proceedings, the Secretary of Defense may 
     prescribe the following provisions:
       ``(A) Evidence shall be admissible if the military judge 
     determines that the evidence would have probative value to a 
     reasonable person.
       ``(B) Evidence shall not be excluded from trial by military 
     commission on the grounds that the evidence was not seized 
     pursuant to a search warrant or other authorization.
       ``(C) 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.
       ``(D) Evidence shall be admitted as authentic so long as--
       ``(i) the military judge of the military commission 
     determines that there is sufficient basis to find 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.
       ``(E)(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 the 
     preceding sentence is subject to the requirements and 
     limitations applicable to the disclosure of classified 
     information in section 949j(c) 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.
       ``(F) The military judge shall exclude any evidence the 
     probative value of which is substantially outweighed--
       ``(i) by the danger of unfair prejudice, confusion of the 
     issues, or misleading the commission; or
       ``(ii) by considerations of undue delay, waste of time, or 
     needless presentation of cumulative evidence.
       ``(3)(A) The accused in a military commission under this 
     chapter who exercises the right to self-representation under 
     paragraph (1)(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 (1)(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.
       ``(c) Delegation of Authority to Prescribe Regulations.--
     The Secretary of Defense may delegate the authority of the 
     Secretary to prescribe regulations under this chapter.
       ``(d) Notification to Congressional Committees of Changes 
     to Procedures.--Not later than 60 days before the date on 
     which any proposed modification of the procedures in effect 
     for military commissions under this chapter goes into effect, 
     the Secretary of Defense shall submit to the Committee on 
     Armed Services of the Senate and the Committee on Armed 
     Services of the House of Representatives a report describing 
     the modification.

     ``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 his 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 his judicial acts; or
       ``(C) the exercise of professional judgment by trial 
     counsel or defense counsel.
       ``(3) Paragraphs (1) and (2) do 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, but only if 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 
     classified information that is 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) Civilian defense counsel shall protect any classified 
     information received during the course of representation of 
     the accused in accordance with all applicable law governing 
     the protection of classified information and may not divulge 
     such information to any person not authorized to receive it.
       ``(5) If the accused is represented by civilian counsel, 
     detailed military counsel shall act as associate counsel.
       ``(6) 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 that person's sole discretion, may 
     detail additional military counsel to represent the accused.
       ``(7) 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 (c) and (e), any 
     proceedings under paragraph (1) shall--
       ``(A) be conducted in the presence of the accused, defense 
     counsel, and trial counsel; and

[[Page 20033]]

       ``(B) be made part of the record.
       ``(b) Proceedings in Presence of Accused.--Except as 
     provided in subsections (c) and (e), all proceedings of a 
     military commission under this chapter, including any 
     consultation of the members with the military judge or 
     counsel, shall--
       ``(1) be in the presence of the accused, defense counsel, 
     and trial counsel; and
       ``(2) be made a part of the record.
       ``(c) Deliberation or Vote of Members.--When the members of 
     a military commission under this chapter deliberate or vote, 
     only the members may be present.
       ``(d) 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, but only in 
     accordance with this subsection.
       ``(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.
       ``(e) 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.
       ``(f) 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. The rule in the preceding sentence 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 of the information 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 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 commission. The military judge shall determine the 
     relevance and validity of challenges for cause. The military 
     judge 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.--Each accused and the trial 
     counsel are entitled to one peremptory challenge. 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, 
     each accused and the trial counsel are entitled to one 
     peremptory challenge against members not previously subject 
     to peremptory challenge.

     ``Sec. 949g. Oaths

       ``(a) In General.--(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 
     the same, 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 prescribed in regulations of the Secretary of 
     Defense. Those 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.

     ``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) Entry of 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 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) Right of Defense Counsel.--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.
       ``(b) Process for Compulsion.--Process issued in a military 
     commission under this

[[Page 20034]]

     chapter to compel witnesses to appear and testify and to 
     compel the production of other evidence--
       ``(1) shall be similar to that which courts of the United 
     States having criminal jurisdiction may lawfully issue; and
       ``(2) shall run to any place where the United States shall 
     have jurisdiction thereof.
       ``(c) 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 to 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.
       ``(d) 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 
     (c).
       ``(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 general court-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 of the commission as to the defense of lack of mental 
     responsibility under this section and shall charge them to 
     find the accused--
       ``(1) guilty;
       ``(2) not guilty; or
       ``(3) 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) No person may be sentenced by a 
     military commission to suffer death, except insofar as--
       ``(A) the penalty of death is expressly authorized under 
     this chapter 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 is convicted of the offense by the 
     concurrence of all the members present at the time the vote 
     is taken; and
       ``(D) all the members present at the time the vote is taken 
     concur in the sentence of death.
       ``(2) 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.
       ``(3) All other 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.
       ``(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.
       ``(2) In any case described in paragraph (1) in which 12 
     members are not reasonably available because of physical 
     conditions or military exigencies, the convening authority 
     shall specify a lesser number of members for the military 
     commission (but not fewer than 9 members), and the military 
     commission may be assembled, and the trial held, with not 
     fewer than the number of members so specified. In such a 
     case, the convening authority shall make a detailed written 
     statement, to be appended to the record, stating why a 
     greater number of members were not reasonably available.

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

       ``A military commission 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 of the commission if the trial 
     counsel is unable to authenticate it by reason of his death, 
     disability, or absence. Where appropriate, and as provided 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 be given a redacted 
     version of the record consistent with the requirements of 
     section 949d 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

[[Page 20035]]

     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. Appellate referral; 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; procedures for execution of sentence of 
              death.
``950j. Finality or 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 the accused has been given an authenticated 
     record of trial under section 949o(c) of this title.
       ``(B) If the accused shows that additional time is required 
     for the accused to make a submittal under paragraph (1), the 
     convening authority 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)(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 on the sentence 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.
       ``(3) 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, may--
       ``(A) dismiss any charge or specification by setting aside 
     a finding of guilty thereto; or
       ``(B) change a finding of guilty to a charge to a finding 
     of guilty to an offense that is a lesser included offense of 
     the offense stated in the charge.
       ``(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.
       ``(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. Appellate referral; waiver or withdrawal of 
       appeal

       ``(a) Automatic Referral for Appellate Review.--Except as 
     provided under subsection (b), in each case in which the 
     final decision of a military commission (as approved by the 
     convening authority) includes a finding of guilty, the 
     convening authority shall refer the case to the Court of 
     Military Commission Review. Any such referral shall be made 
     in accordance with procedures prescribed under regulations of 
     the Secretary.
       ``(b) Waiver of Right of Review.--(1) In each case subject 
     to appellate review under section 950f of this title, except 
     a case in which the sentence as approved under section 950b 
     of this title extends to death, the accused may file with the 
     convening authority a statement expressly waiving the right 
     of the accused to such review.
       ``(2) A waiver under paragraph (1) shall be signed by both 
     the accused and a defense counsel.
       ``(3) A waiver under paragraph (1) must be filed, if at 
     all, within 10 days after notice on the action is served on 
     the accused 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.
       ``(c) 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.
       ``(d) 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 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 (d), (e), or (f) 
     of section 949d of this title or section 949j(c) 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 such 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.
       ``(d) Appeal From Adverse Ruling.--The United States may 
     appeal an adverse ruling on an appeal under subsection (c) to 
     the United States Court of Appeals for the District of 
     Columbia Circuit by filing a petition for review in the Court 
     of Appeals within 10

[[Page 20036]]

     days after the date of such ruling. Review under this 
     subsection shall be at the discretion of the Court of 
     Appeals.

     ``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 be serve as an appellate 
     military judge in any case in which that person acted as a 
     military judge, counsel, or reviewing official.
       ``(c) Cases to Be Reviewed.--The Court of Military 
     Commission Review, in accordance with procedures prescribed 
     under regulations of the Secretary, shall review the record 
     in each case that is referred to the Court by the convening 
     authority under section 950c of this title with respect to 
     any matter of law raised by the accused.
       ``(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) Exclusive Appellate Jurisdiction.--(1)(A) Except as 
     provided in subparagraph (B), the United States Court of 
     Appeals for the District of Columbia Circuit shall have 
     exclusive jurisdiction to determine the validity of a final 
     judgment rendered by a military commission (as approved by 
     the convening authority) under this chapter.
       ``(B) The Court of Appeals may not review the final 
     judgment until all other appeals under this chapter have been 
     waived or exhausted.
       ``(2) A petition for review must be filed by the accused in 
     the Court of Appeals not later than 20 days after the date on 
     which--
       ``(A) written notice of the final decision of the Court of 
     Military Commission Review is served on the accused or on 
     defense counsel; or
       ``(B) the accused submits, in the form prescribed by 
     section 950c of this title, a written notice waiving the 
     right of the accused to review by the Court of Military 
     Commission Review under section 950f of this title.
       ``(b) Standard for Review.--In a case reviewed by it under 
     this section, the Court of Appeals may act only with respect 
     to matters of law.
       ``(c) Scope of Review.--The jurisdiction of the Court of 
     Appeals on an appeal under subsection (a) shall be limited to 
     the consideration of--
       ``(1) whether the final decision was consistent with the 
     standards and procedures specified in this chapter; and
       ``(2) to the extent applicable, the Constitution and the 
     laws of the United States.
       ``(d) Supreme Court.--The Supreme Court may review by writ 
     of certiorari the final judgment of the Court of Appeals 
     pursuant to section 1257 of title 28.

     ``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 for counsel appearing before 
     military commissions under this chapter.
       ``(b) Representation of United States.--Appellate counsel 
     appointed under subsection (a)--
       ``(1) shall represent the United States in any appeal or 
     review proceeding under this chapter before the Court of 
     Military Commission Review; and
       ``(2) may, when requested to do so by the Attorney General 
     in a case arising under this chapter, represent the United 
     States before the United States Court of Appeals for the 
     District of Columbia Circuit or the Supreme Court.
       ``(c) Representation of Accused.--The accused shall be 
     represented by appellate counsel appointed under subsection 
     (a) before the Court of Military Commission Review, the 
     United States Court of Appeals for the District of Columbia 
     Circuit, and the Supreme Court, and by civilian counsel if 
     retained by the accused. Any such civilian counsel shall meet 
     the qualifications under paragraph (3) of section 949c(b) of 
     this title for civilian counsel appearing before military 
     commissions under this chapter and shall be subject to the 
     requirements of paragraph (4) of that section.

     ``Sec. 950i. Execution of sentence; procedures for execution 
       of sentence of death

       ``(a) In General.--The Secretary of Defense is authorized 
     to carry out a sentence imposed by a military commission 
     under this chapter in accordance with such procedures as the 
     Secretary may prescribe.
       ``(b) 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.
       ``(c) Execution of Sentence of Death Only Upon Final 
     Judgment of Legality of Proceedings.--(1) If the sentence of 
     a military commission under this chapter extends to death, 
     the sentence may not be executed until there is a final 
     judgment as to the legality of the proceedings (and with 
     respect to death, approval under subsection (b)).
       ``(2) A judgment 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 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 that 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--
       ``(i) a petition for a writ of certiorari is not timely 
     filed;
       ``(ii) such a petition is denied by the Supreme Court; or
       ``(iii) review is otherwise completed in accordance with 
     the judgment of the Supreme Court.
       ``(d) 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 any 
     sentence or part thereof in the case, except a sentence of 
     death.

     ``Sec. 950j. Finality or 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 the enactment of the Military 
     Commissions Act of 2006, 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.
``950p.  Statement of substantive offenses.
``950q.  Principals.
``950r.  Accessory after the fact.
``950s.  Conviction of lesser included offense.
``950t.  Attempts.
``950u.  Solicitation.
``950v.  Crimes triable by military commissions.
``950w.  Perjury and obstruction of justice; contempt.

     ``Sec. 950p. 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

[[Page 20037]]

     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. 950q. Principals

       ``Any person is punishable as a principal under this 
     chapter who--
       ``(1) commits an offense punishable by this chapter, or 
     aids, abets, counsels, commands, or procures its commission;
       ``(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 who failed to take the necessary 
     and reasonable measures to prevent such acts or to punish the 
     perpetrators thereof.

     ``Sec. 950r. Accessory after the fact

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

     ``Sec. 950s. Conviction of lesser included offense

       ``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. 950t. 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. 950u. Solicitation

       ``Any person subject to this chapter who solicits or 
     advises another or others to commit one or more substantive 
     offenses triable by military commission 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. 950v. Crimes triable by military commissions

       ``(a) Definitions and Construction.--In this section:
       ``(1) Military objective.--The term `military objective' 
     means--
       ``(A) combatants; and
       ``(B) those objects during an armed conflict--
       ``(i) which, by their nature, location, purpose, or use, 
     effectively contribute to the opposing force's war-fighting 
     or war-sustaining capability; and
       ``(ii) the total or partial destruction, capture, or 
     neutralization of which would constitute a definite military 
     advantage to the attacker under the circumstances at the time 
     of the attack.
       ``(2) Protected person.--The term `protected person' means 
     any person entitled to protection under one or more of the 
     Geneva Conventions, including--
       ``(A) civilians not taking an active part in hostilities;
       ``(B) military personnel placed hors de combat by sickness, 
     wounds, or detention; and
       ``(C) military medical or religious personnel.
       ``(3) Protected property.--The term `protected property' 
     means property specifically protected by the law of war (such 
     as buildings dedicated to religion, education, art, science 
     or charitable purposes, historic monuments, hospitals, or 
     places where the sick and wounded are collected), if such 
     property is not being used for military purposes or is not 
     otherwise a military objective. Such 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.
       ``(4) Construction.--The intent specified for an offense 
     under paragraph (1), (2), (3), (4), or (12) of subsection (b) 
     precludes the applicability of such offense with regard to--
       ``(A) collateral damage; or
       ``(B) death, damage, or injury incident to a lawful attack.
       ``(b) Offenses.--The following offenses shall be triable by 
     military commission under this chapter at any time without 
     limitation:
       ``(1) 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.
       ``(2) 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.
       ``(3) 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.
       ``(4) 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.
       ``(5) 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.
       ``(6) 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.
       ``(7) Taking hostages.--Any person subject to this chapter 
     who, having knowingly seized or detained one or more persons, 
     threatens to kill, injure, or continue to detain such person 
     or persons with the intent of compelling any nation, person 
     other than the hostage, or group of persons to act or refrain 
     from acting as an explicit or implicit condition for the 
     safety or release of such person or persons, shall be 
     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.
       ``(8) 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.
       ``(9) 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.
       ``(10) 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.
       ``(11) 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.
       ``(12) Cruel or inhuman treatment.--
       ``(A) Offense.--Any person subject to this chapter who 
     commits an act intended to inflict severe or serious physical 
     or mental

[[Page 20038]]

     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 paragraph:
       ``(i) The term `serious physical pain or suffering' means 
     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.

       ``(ii) The term `severe mental pain or suffering' has the 
     meaning given that term in section 2340(2) of title 18.
       ``(iii) 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--

       ``(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 Commissions 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.

       ``(13) 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 paragraph, 
     the term `serious bodily injury' means bodily injury which 
     involves--
       ``(i) a substantial risk of death;
       ``(ii) extreme physical pain;
       ``(iii) protracted and obvious disfigurement; or
       ``(iv) protracted loss or impairment of the function of a 
     bodily member, organ, or mental faculty.
       ``(14) 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.
       ``(15) 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.
       ``(16) 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.
       ``(17) 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.
       ``(18) 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.
       ``(19) 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.
       ``(20) 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 necessity, shall be punished as a military 
     commission under this chapter may direct.
       ``(21) 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.
       ``(22) Sexual assault or abuse.--Any person subject to this 
     chapter who forcibly or with coercion or threat of force 
     engages in sexual contact with one or more persons, or causes 
     one or more persons to engage in sexual contact, shall be 
     punished as a military commission under this chapter may 
     direct.
       ``(23) 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.
       ``(24) 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.
       ``(25) 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 paragraph (24)), or 
     who intentionally provides material support or resources to 
     an international terrorist organization engaged in 
     hostilities against the 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 
     paragraph, the term `material support or resources' has the 
     meaning given that term in section 2339A(b) of title 18.
       ``(26) 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.
       ``(27) Spying.--Any person subject to this chapter who with 
     intent or reason to believe that it is to be used to the 
     injury of the United States or to the advantage of a foreign 
     power, collects or attempts to collect 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.
       ``(28) Conspiracy.--Any person subject to this chapter who 
     conspires to commit one or more substantive offenses triable 
     by military commission under this chapter, 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. 950w. Perjury and obstruction of justice; contempt

       ``(a) 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 military commissions under this chapter.
       ``(b) 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.''.
       (2) Tables of chapters amendments.--The tables of chapters 
     at the beginning of subtitle A, and at the beginning of 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:

``47A. Military Commissions.....................................948a''.

       (b) Submittal of Procedures to Congress.--Not later than 90 
     days after the date of the enactment of this Act, the 
     Secretary of Defense shall submit to the Committees

[[Page 20039]]

     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)).

     SEC. 4. AMENDMENTS TO UNIFORM CODE OF MILITARY JUSTICE.

       (a) Conforming Amendments.--Chapter 47 of title 10, United 
     States Code (the Uniform Code of Military Justice), is 
     amended as follows:
       (1) Applicability to lawful enemy combatants.--Section 
     802(a) (article 2(a)) is amended by adding at the end the 
     following new paragraph:
       ``(13) Lawful enemy combatants (as that term is defined in 
     section 948a(2) of this title) who violate the law of war.''.
       (2) Exclusion of applicability to chapter 47a 
     commissions.--Sections 821, 828, 848, 850(a), 904, and 906 
     (articles 21, 28, 48, 50(a), 104, and 106) are amended by 
     adding at the end the following new sentence: ``This section 
     does not apply to a military commission established under 
     chapter 47A of this title.''.
       (3) Inapplicability of requirements relating to 
     regulations.--Section 836 (article 36) is amended--
       (A) in subsection (a), by inserting ``, except as provided 
     in chapter 47A of this title,'' after ``but which may not''; 
     and
       (B) in subsection (b), by inserting before the period at 
     the end ``, except insofar as applicable to military 
     commissions established under chapter 47A of this title''.
       (b) 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 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.''.

     SEC. 5. 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 corpus or 
     other 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 3114);
       (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. 6. 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.
       (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 (except as to grave breaches 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) Geneva conventions.--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) Third geneva convention.--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

[[Page 20040]]

     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 Commissions 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.
       ``(5) Definition of grave breaches.--The definitions in 
     this subsection are intended only to define the grave 
     breaches of common Article 3 and not the full scope of United 
     States obligations under that Article.''.
       (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 action to ensure 
     compliance with this subsection, including through the 
     establishment of administrative rules and procedures.

     SEC. 7. HABEAS CORPUS MATTERS.

       (a) In General.--Section 2241 of title 28, United States 
     Code, is amended by striking both the subsection (e) added by 
     section 1005(e)(1) of Public Law 109-148 (119 Stat. 2742) and 
     the subsection (e) added by added by section 1405(e)(1) of 
     Public Law 109-163 (119 Stat. 3477) and inserting the 
     following new subsection (e):
       ``(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 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 who is or was detained by the United 
     States and 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 amendment 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. 8. REVISIONS TO DETAINEE TREATMENT ACT OF 2005 RELATING 
                   TO PROTECTION OF CERTAIN UNITED STATES 
                   GOVERNMENT PERSONNEL.

       (a) Counsel and Investigations.--Section 1004(b) of the 
     Detainee Treatment Act of 2005 (42 U.S.C. 2000dd-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) Protection of Personnel.--Section 1004 of the Detainee 
     Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with 
     respect to any criminal prosecution that--
       (1) relates to the detention and interrogation of aliens 
     described in such section;
       (2) is grounded in section 2441(c)(3) of title 18, United 
     States Code; and
       (3) relates to actions occurring between September 11, 
     2001, and December 30, 2005.

     SEC. 9. REVIEW OF JUDGMENTS OF MILITARY COMMISSIONS.

       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--
       (1) 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'';
       (2) by striking subparagraph (B) and inserting the 
     following new subparagraph (B):
       ``(B) Grant of review.--Review under this paragraph shall 
     be as of right.'';
       (3) in subparagraph (C)--
       (A) 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
       (B) in clause (ii), by striking ``pursuant to such military 
     order'' and inserting ``by the military commission''; and
       (4) in subparagraph (D)(i), by striking ``specified in the 
     military order'' and inserting ``specified for a military 
     commission''.

     SEC. 10. 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 amended by striking ``the Department of 
     Defense at Guantanamo Bay, Cuba'' and inserting ``the United 
     States''.
                                 ______
                                 
  SA 5086. Mr. LEVIN (for himself, Mr. Dayton, and Mr. Reed) proposed 
an amendment to the bill S. 3930, to authorize trial by military 
commission for violations of the law of war, and for other purposes; as 
follows:

       Strike out all after the enacting clause and insert the 
     following:

     SECTION 1. SHORT TITLE.

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

     SEC. 2. 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.
       (6) Military commissions established and operating under 
     chapter 47A of title 10, United States Code (as enacted by 
     this Act), are regularly constituted courts affording, in

[[Page 20041]]

     the words of Common Article 3 of the Geneva Conventions, 
     ``all the judicial guarantees which are recognized as 
     indispensable by civilized peoples''.

     SEC. 3. 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. 4. 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, 
     while instructive, is therefore not of its own force 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) 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 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.

     ``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 military commission under this chapter shall have 
     jurisdiction to try persons subject to this chapter for 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, and 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.

[[Page 20042]]



     ``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.
       ``(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.
       ``(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 cruel, inhuman, or degrading treatment.
``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 cruel, inhuman, or 
       degrading treatment

       ``(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 or Cruel, Inhuman, or 
     Degrading Treatment.--A statement obtained by use of torture 
     or by cruel, inhuman, or degrading treatment prohibited by 
     section 1003 of the Detainee Treatment Act of 2005 (42 U.S.C. 
     2000dd), whether or not under color of law, shall not be 
     admissible in a military commission under this chapter, 
     except against a person accused of torture or such treatment 
     as evidence the statement was made.
       ``(c) Statements Obtained by Alleged Coercion Not Amounting 
     to Torture or Cruel, Inhuman, or Degrading Treatment.--An 
     otherwise admissible statement obtained through the use of 
     alleged coercion not amounting to torture or cruel, inhuman, 
     or degrading treatment prohibited by section 1003 of the 
     Detainee Treatment Act of 2005 may be admitted in evidence in 
     a military commission under this chapter only if the military 
     judge finds that--
       ``(1) the totality of the circumstances under which the 
     statement was made render

[[Page 20043]]

     it reliable and possessing sufficient probative value; and
       ``(2) the interests of justice would best be served by 
     admission of the statement into evidence.

     ``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) 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 
     only if--
       ``(i) the proponent of the evidence makes known to the 
     adverse party, sufficiently in advance of trial or hearing to 
     provide the adverse party with a fair opportunity to meet the 
     evidence, the proponent's intention to offer the evidence, 
     and the particulars of the evidence (including information on 
     the circumstances under which the evidence was obtained); and
       ``(ii) the military judge finds that the totality of the 
     circumstances render the evidence more probative on the point 
     for which it is offered than other evidence which the 
     proponent can procure through reasonable efforts, taking into 
     consideration the unique circumstances of the conduct of 
     military and intelligence operations during hostilities.
       ``(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.
       ``(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

[[Page 20044]]

     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.
       ``(4)(A) Subject to the provisions of this paragraph, 
     classified information shall be handled in accordance with 
     rules applicable in trials by general courts-martial of the 
     United States.
       ``(B) Classified information shall be protected and is 
     privileged from disclosure if disclosure would be detrimental 
     to the national security. This subparagraph applies to all 
     stages of proceedings of military commissions under this 
     chapter.
       ``(C) After the original classification authority or head 
     of the agency concerned has certified in writing that 
     evidence and the sources thereof have been declassified to 
     the maximum extent possible, consistent with the requirements 
     of national security, the military judge may, to the extent 
     practicable in accordance with the rules applicable in trials 
     by court-martial, authorize--
       ``(i) the deletion of specified items of classified 
     information from documents made available to the accused;
       ``(ii) the substitution of a portion or summary of the 
     information for such classified documents; or
       ``(iii) the substitution of a statement admitting relevant 
     facts that the classified information would tend to prove.
       ``(D) A claim of privilege under this paragraph, and any 
     materials in support thereof, shall, upon the request of the 
     Government, be considered by the military judge in camera and 
     shall not be disclosed to the accused.
       ``(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.

     ``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) Disclosure of Exculpatory Evidence.--As soon as 
     practicable, trial counsel in a military commission under 
     this chapter shall disclose to the defense the existence of 
     any known evidence that reasonably tends to exculpate or 
     reduce the degree of guilt of the accused.
       ``(c) Treatment of Certain Items.--In accordance with the 
     rules applicable in trials by general courts-martial in the 
     United States, and to the extent provided in such rules, the 
     military judge in a military commission under this chapter 
     may authorize trial counsel, in making documents available to 
     the accused pursuant to subsections (a) and (b)--
       ``(1) to delete specified items of classified information 
     from such documents;
       ``(2) to substitute an unclassified summary of the 
     classified information in such documents; or
       ``(3) to substitute an unclassified statement admitting 
     relevant facts that classified information in such documents 
     would tend to prove.

     ``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

[[Page 20045]]

     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--
       ``(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(c)(4) 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 United States Court of Appeals for the Armed Forces 
              and Supreme Court.
``950g. Appellate counsel
``950h. Execution of sentence; suspension of sentence.
``950i. 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

[[Page 20046]]

     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.
       ``(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 United 
     States Court of Appeals for the Armed Forces under section 
     950f(a) 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 United States Court of Appeals for the Armed Forces 
     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) or (d) 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 United States Court of 
     Appeals for the Armed Forces. 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 United States Court of Appeals for the 
       Armed Forces and Supreme Court

       ``(a) Review by United States Court of Appeals for the 
     Armed Forces.--(1) Subject to the provisions of this 
     subsection, the United States Court of Appeals for the Armed 
     Forces 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 Armed 
     Forces 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 Armed Forces 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 written notice of the final decision 
     of the military commission is served on the accused or 
     defense counsel.
       ``(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 Armed Forces 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

[[Page 20047]]

     Armed Forces in a determination under subsection (a).

     ``Sec. 950g. 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 Supreme Court in 
     case 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 
     Armed Forces or the Supreme Court by military appellate 
     counsel, or by civilian counsel if retained by him.

     ``Sec. 950h. 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 Armed 
     Forces 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 Armed Forces 
     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 any 
     sentence or part thereof in the case, except a sentence of 
     death.

     ``Sec. 950i. 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. Principals.
``950cc. Accessory after the fact.
``950dd. Conviction of lesser offenses.
``950ee. Attempts.
``950ff. Conspiracy.
``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, unusual, or inhumane treatment or punishment.
``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. Contempt.
``950iii. 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. Principals

       ``Any person punishable under this chapter who--
       ``(1) commits an offense punishable by this chapter, or 
     aids, abets, counsels, commands, or procures its commission; 
     or
       ``(2) causes an act to be done which if directly performed 
     by him would be punishable by this chapter,

     is a principal.

     ``Sec. 950cc. 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. 950dd. 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. 950ee. 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. 950ff. 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. 950gg. Solicitation

       ``Any person subject to this chapter who solicits or 
     advises another or others to commit one or more substantive 
     offenses triable

[[Page 20048]]

     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 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, unusual, or inhumane treatment or 
       punishment

       ``Any person subject to this chapter who subjects another 
     person in their custody or under their physical control, 
     regardless of nationality or physical location, to cruel, 
     unusual, or inhumane treatment or punishment prohibited by 
     the Fifth, Eighth, and 14th Amendments to the Constitution of 
     the United States 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.

     ``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.

[[Page 20049]]



     ``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 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. 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. 950iii. 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. 5. 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 Armed Forces under 
     section 950f of title 10.''.
       (2) Detainee treatment act of 2005.--Section 1005(e) 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 paragraphs (3) and (4), by striking ``United States 
     Court of Appeals for the District of Columbia Circuit'' each 
     place it appears and inserting ``United States Court of 
     Appeals for the Armed Forces''; and
       (B) in paragraph (3)--
       (i) 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'';
       (ii) by striking subparagraph (B) and inserting the 
     following new subparagraph (B):
       ``(ii) Grant of review.--Review under this paragraph shall 
     be as of right.'';
       (iii) in subparagraph (C)--

       (I) in clause (i)--

       (aa) by striking ``pursuant to the military order'' and 
     inserting ``by a military commission''; and
       (bb) 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

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

     SEC. 6. 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 
     outside of the United States who--
       ``(A) is currently in United States custody; or
       ``(B) has been determined by the United States to have been 
     properly detained as an enemy combatant.
       ``(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, treatment, or trial of an alien detained outside 
     of the United States who--
       ``(A) is currently in United States custody; or
       ``(B) has been determined by the United States to have been 
     properly detained as an enemy combatant.

[[Page 20050]]

       ``(3) In this subsection, the term `United States', when 
     used in a geographic sense, has the meaning given that term 
     in section 1005(g) of the Detainee Treatment Act of 2005.''.
       (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, treatment, or trial of an 
     alien detained outside the United States (as that term is 
     defined in section 2241(e)(3) of title 28, United States Code 
     (as added by subsection (a)) since September 11, 2001.

     SEC. 7. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR 
                   CERTAIN CLAIMS.

       (a) In General.--No person may invoke the Geneva 
     Conventions or any protocols thereto as an individually 
     enforceable right in any civil action against an officer, 
     employee, member of the Armed Forces or another agent of the 
     United States Government, or against the United States, for 
     the purpose of any claim for damages for death, injury, or 
     damage to property in any court of the United States or its 
     States or territories. This subsection does not affect the 
     obligations of the United States under the Geneva 
     Conventions.
       (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 3114);
       (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. 8. REVISION TO WAR CRIMES OFFENSE UNDER FEDERAL CRIMINAL 
                   CODE.

       (a) In General.--Section 2441 of title 18, United States 
     Code, is amended--
       (1) 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
       (2) by adding at the end the following new subsection:
       ``(d) Common Article 3 Violations.--
       ``(1) Grave breach of common article 3.--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, unusual, or inhumane treatment or 
     punishment.--The act of a person who subjects another person 
     in the custody or under the physical control of the United 
     States Government, regardless of nationality or physical 
     location, to cruel, unusual, or inhumane treatment or 
     punishment prohibited by the Fifth, Eighth, and 14th 
     Amendments to the Constitution of the United States.
       ``(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 section, one or more persons 
     taking no active part in hostilities, including those placed 
     out of active 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 section, 
     one or more persons taking no active part in hostilities, 
     including those placed out of active combat by sickness, 
     wounds, detention, or any other cause, by disfiguring such 
     person or persons by any mutilation thereof or by permanently 
     disabling any member, limb, or organ of the body of such 
     person or persons, 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 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 paragraph (1)(A) 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; and
       ``(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.
       ``(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) of 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.''.
       (b) Construction.--Such section is further amended by 
     adding at the end the following new subsections:
       ``(e) Inapplicability of Foreign Sources of Law in 
     Interpretation.--No foreign source of law shall be considered 
     in defining or interpreting the obligations of the United 
     States under this title.
       ``(f) Nature of Criminal Sanctions.--The criminal sanctions 
     in this section provide penal sanctions under the domestic 
     law of the United States for grave breaches of the 
     international conventions done at Geneva August 12, 1949. 
     Such criminal sanctions do not alter the obligations of the 
     United States under those international conventions.''.
       (c) Protection of Certain United States Government 
     Personnel.--Such section is further amended by adding at the 
     end the following new subsection:
       ``(g) Protection of Certain United States Government 
     Personnel.--The provisions of section 1004 of the Detainee 
     Treatment Act of 2005 (42 U.S.C. 2000dd-1) shall apply with 
     respect to any criminal prosecution relating to the detention 
     and interrogation of individuals described in such provisions 
     that is grounded in an offense under subsection (a) by reason 
     of subsection (c)(3) with respect to actions occurring 
     between September 11, 2001, and December 30, 2005.''.

     SEC. 9. 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 amended by striking ``the Department of 
     Defense at Guantanamo Bay, Cuba'' and inserting ``the United 
     States''.

     SEC. 10. 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.
                                 ______
                                 
  SA 5087. Mr. SPECTER (for himself, Mr. Leahy, Mr. Dorgan, Mr. Dodd, 
Mr. Dayton, Mr. Feingold, Mrs. Clinton, and Mr. Bingaman) submitted an 
amendment intended to be proposed by him to the bill S. 3930, to 
authorize trial by military commission for violations of the law of 
war, and for other purposes; as follows:

       On page 93, strike line 9 and all that follows through page 
     94, line 13.
                                 ______
                                 
  SA 5088. Mr. KENNEDY (for himself, Mrs. Feinstein, and Mrs. Clinton) 
submitted an amendment intended to be

[[Page 20051]]

proposed by him to the bill S. 3930, to authorize trial by military 
commission for violations of the law of war, and for other purposes; 
which was ordered to lie on the table; as follows:

       On page 83, between lines 8 and 9, insert the following:
       (2) Protection of united states persons.--The Secretary of 
     State shall notify other parties to the Geneva Conventions 
     that--
       (A) the United States has historically interpreted the law 
     of war and the Geneva Conventions, including in particular 
     common Article 3, to prohibit a wide variety of cruel, 
     inhuman, and degrading treatment of members of the United 
     States Armed Forces and United States citizens;
       (B) during and following previous armed conflicts, the 
     United States Government has prosecuted persons for engaging 
     in cruel, inhuman, and degrading treatment, including the use 
     of waterboarding techniques, stress positions, including 
     prolonged standing, the use of extreme temperatures, 
     beatings, sleep deprivation, and other similar acts;
       (C) this Act and the amendments made by this Act preserve 
     the capacity of the United States to prosecute nationals of 
     enemy powers for engaging in acts against members of the 
     United States Armed Forces and United States citizens that 
     have been prosecuted by the United States as war crimes in 
     the past; and
       (D) should any United States person to whom the Geneva 
     Conventions apply be subjected to any of the following acts, 
     the United States would consider such act to constitute a 
     punishable offense under common Article 3 and would act 
     accordingly. Such acts, each of which is prohibited by the 
     Army Field Manual include forcing the person to be naked, 
     perform sexual acts, or pose in a sexual manner; applying 
     beatings, electric shocks, burns, or other forms of physical 
     pain to the person; waterboarding the person; using dogs on 
     the person; inducing hypothermia or heat injury in the 
     person; conducting a mock execution of the person; and 
     depriving the person of necessary food, water, or medical 
     care.
                                 ______
                                 
  SA 5089. Mr. MARTINEZ submitted an amendment intended to be proposed 
to amendment SA 5066 submitted by Mrs. Hutchison (for herself and Mr. 
Kyl) and intended to be proposed to the bill H.R. 6061, to establish 
operational control over the international land and maritime borders of 
the United States; which was ordered to lie on the table; as follows:

       On page 1, between lines 2 and 3, insert the following:
       (d) Operational Control Defined.--Notwithstanding 
     subsection (b), for purposes of this section the term 
     ``operational control'' means effective prevention of 
     unlawful entries into the United States, including entries by 
     terrorists, other unlawful aliens, instruments of terrorism, 
     narcotics, and other contraband, as determined by the 
     Secretary of Homeland Security.
                                 ______
                                 
  SA 5090. Mr. BENNETT (for Mr. Frist) proposed an amendment to the 
bill S. 403, to amend title 18, United States Code, to prohibit taking 
minors across State lines in circumvention of laws requiring the 
involvement of parents in abortion decisions; as follows:

       On page 12, line 2, strike ``45 days'' and insert ``46 
     days''.
                                 ______
                                 
  SA 5091. Mr. BENNETT (for Mr. Frist) proposed an amendment to 
amendment SA 5090 proposed by Mr. Bennett (for Mr. Frist) to the bill 
S. 403, to amend title 18, United States Code, to prohibit taking 
minors across State lines in circumvention of laws requiring the 
involvement of parents in abortion decisions; as follows:

       Strike ``46 days'' and insert ``44 days''.

                          ____________________