[Congressional Record (Bound Edition), Volume 152 (2006), Part 16]
[House]
[Pages 20716-20743]
[From the U.S. Government Publishing Office, www.gpo.gov]




                    MILITARY COMMISSIONS ACT OF 2006

  Mr. SENSENBRENNER. Mr. Speaker, pursuant to House Resolution 1054, I 
call up the Senate bill (S. 3930) to authorize trial by military 
commission for violations of the law of war, and for other purposes, 
and ask for its immediate consideration.
  The Clerk read the title of the Senate bill.
  The text of the Senate bill is as follows:

                                S. 3930

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

     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 order, or regulation to require protection

[[Page 20717]]

     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 20718]]

       ``(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 20719]]

       ``(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 20720]]

       ``(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 20721]]

     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 20722]]

     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 20723]]

     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 20724]]

     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 20725]]

     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 on Armed 
     Services of the Senate and the

[[Page 20726]]

     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 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

[[Page 20727]]

     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''.

  The SPEAKER pro tempore. Pursuant to House Resolution 1054, debate 
shall not exceed 1 hour, with 40 minutes equally divided and controlled 
by the chairman and ranking minority member of the Committee on Armed 
Services and 20 minutes equally divided and controlled by the chairman 
and ranking minority member of the Committee on the Judiciary.
  The gentleman from California (Mr. Hunter) and the gentleman from 
Missouri (Mr. Skelton) each will control 20 minutes and the gentleman 
from Wisconsin (Mr. Sensenbrenner) and the gentleman from Michigan (Mr. 
Conyers) each will control 10 minutes.
  The Chair recognizes the gentleman from California.

                              {time}  1200


                             General Leave

  Mr. HUNTER. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days in which to revise and extend their remarks on 
S. 3930.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from California?
  There was no objection.
  Mr. HUNTER. Mr. Speaker, I yield myself such time as I may consume, 
and I rise in support of S. 3930, the Military Commissions Act of 2006.
  Mr. Speaker, as we debated this bill just a few hours ago, again, I 
say that I can't think of any better way to honor the fifth anniversary 
of September 11 than by establishing a system to prosecute the 
terrorists who on that day murdered thousands of civilians and who 
continue to seek to kill Americans both on and off the battlefield.

[[Page 20728]]

  Mr. Speaker, I think that Justice Thomas described best the backdrop 
against which this legislation is being considered when he said, and I 
quote, ``We are not engaged in a traditional battle with a nation state 
but with a worldwide hydra-headed enemy who lurks in the shadows 
conspiring to reproduce the atrocities of September 11, 2001, and who 
has boasted of sending suicide bombers into civilian gatherings, has 
proudly distributed videotapes of beheadings of civilian workers, and 
has tortured and dismembered captured American soldiers.''
  So, Mr. Speaker, we have debated this precisely, this bill, which is 
precisely the same coming back over from the other body as the bill 
that we voted on in the full House, where I think we had a robust 
debate on the issues. But I would just say that this gives us a new 
body of law that provides a construct under which we can carry out our 
charge.
  And this is an interesting charge to this body and to both Houses of 
Congress. We were not only requested to do this by the President, but 
the Supreme Court in the Hamdan case essentially invited, in fact said 
that we were an essential part of the construct of any tribunal 
legislation that would set up the new tribunal process; that it had to 
be a construct that was participated in by Congress. So you could say, 
I think, Mr. Speaker, that we have been charged not just by the 
President but by the Supreme Court with doing our job and putting 
together this process.
  We have pursued the terrorists across the globe. We have captured 
some, and we have killed many. We have pursued them literally to the 
ends of the earth. We have caught them at 10,000 foot elevation 
mountain ranges in caves where they thought they were safe, in so-
called safe houses that turned out not to be safe houses. We captured 
some who, according to our intelligence personnel, helped to design the 
attack against New York and Washington, DC, and Pennsylvania. And I can 
think of no more important way to memorialize 9/11 than to produce a 
justice system that allows us to bring to justice, to bring to the 
courthouse and show justice to the widows and orphans of 9/11, to the 
American people, to our fellow citizens and to the world. This system 
is going to allow us to do this.
  This system is a product of extensive negotiations, hundreds of 
provisions that have been agreed upon and worked and looked at by 
counsel for both this body, the other body, the U.S. Senate and, of 
course, the administration. I think it is sound. I think it is solid. I 
think it will allow for the expeditious prosecution of people who 
attacked our country.
  It gives them a lot of rights. It gives a lot of rights to the 
terrorists that they would never have in their native land. It also 
gives them rights that American soldiers don't have. There is no 
American soldier that has the right to an attorney, to a combatant 
status review and, if he doesn't like that review, to an appellate 
court, like the D.C. Circuit Court, to prove that he really was not a 
combatant in that particular conflict.
  So as the American people watch these trials unfold, Mr. Speaker, and 
they watch the defendants, including some of the people who hurt our 
country and helped to cause the death of thousands of Americans, they 
are going to watch them with their taxpayer-paid-for attorneys 
exercising their rights against self-incrimination, their right to a 
proof standard beyond a reasonable doubt; they are going to watch a 
jury system or a commission system that uses a secret ballot so that 
superior officers can't influence junior officers; they are going to 
watch all these safeguards that we put in place for justice, and I 
think the American people are going to say, although there will be some 
who will say they still didn't have enough rights, but I think the 
American people will come down on the side of what we have done here in 
the House.
  Mr. Speaker, I rise in support of S. 3930, the ``Military Commissions 
Act of 2006.'' I can think of no better way to honor the fifth 
anniversary of September 11th than by establishing a system to 
prosecute the terrorists who, on that day, murdered thousands of 
innocent civilians, and who continue to seek to kill Americans both on 
and off the battlefield.
  This is vital legislation important to the national security of the 
United States.
  Our foremost consideration in writing this legislation is to protect 
American troops and American citizens from harm.
  The war against terror has produced a new type of battlefield and a 
new type of enemy. How is it different? We are fighting a ruthless 
enemy who does not wear a uniform. A savage enemy who kills civilians, 
women and children and then boasts about it. A barbaric enemy who 
beheads innocent civilians by sawing their heads off. An uncivilized 
enemy who does not acknowledge or respect the laws of war, the Geneva 
Conventions or any of the guarantees which are recognized by civilized 
nations.
  Justice Thomas put it best in Hamdan. He said we are ``not engaged in 
a traditional battle with a nation-state, but with a world-wide, hydra-
headed enemy, who lurks in the shadows conspiring to reproduce the 
atrocities of September 11, 2001, and who has boasted of sending 
suicide bombers into civilian gatherings, has proudly distributed 
videotapes of beheadings of civilian workers, and has tortured and 
dismembered captured American soldiers.''
  How is the battlefield new? First, it will be a long war. We don't 
know if this enemy will be defeated this decade, the next decade, or 
even longer than that. Second, in this new war, where intelligence is 
more vital than ever, we want to interrogate the enemy. Not to degrade 
them, but to save the lives of American troops, American civilians, and 
our allies. But it is not practical on the battlefield to read the 
enemy their Miranda warnings. On the battlefield we can't have 
battalions of lawyers. Finally, this is an ongoing conflict and sharing 
sensitive intelligence sources, methods and other classified 
information with terrorist detainees could be highly dangerous to 
national security. I am not prepared to take that risk.
  So what we have done is to develop a military commission process that 
will allow for the effective prosecution of enemy combatants during 
this ongoing conflict. Without this action, United States has no 
effective means to try and punish the perpetrators of September 11th, 
the attack on the USS Cole and the embassy bombings.
  We provide basic fairness in our prosecutions, but we also preserve 
the ability of our warfighters to operate effectively on the 
battlefield.
  I think a fair process has two guiding principles:
  First, the government must be able to present its case fully and 
without compromising its intelligence sources or compromising military 
necessity; and
  Second, the prosecutorial process must be done fairly, swiftly and 
conclusively.
  Who are we dealing with in military commissions? We are dealing with 
the enemy in war, not defendants in our domestic criminal justice 
system. Some of them have returned to the battlefield after we let them 
out of Guantanamo. Our primary purpose is to keep them off the 
battlefield. In doing so, we treat them humanely and if we choose to 
try them as war criminals we will give them due process rights that the 
world will respect. But we have to remember they are the enemy in an 
ongoing war.
  In time of war it is not practical to apply to rules of evidence that 
we do in civilian trials or court-martials for our troops. Commanders 
and witnesses can't be called from the frontline to testify in a 
military commission. We need to accommodate rules of evidence, chain of 
custody and authentication to fit the exigencies of the battlefield. If 
hearsay is reliable we should use it. If sworn affidavits are reliable, 
we should use them. I note that the rules of evidence are relaxed in 
international war crime tribunals for Rwanda and Yugoslavia.
  The Supreme Court has suggested that Congress act here to fill the 
legal void left by the Hamdan decision, but in doing so let's not 
forget our purpose is to defend the nation against the enemy. We won't 
lower our standards, we will always treat detainees humanely, but we 
can't be naive either.
  This war started in 1996 with the al Qaeda declaration of jihad 
against the United States. The Geneva Conventions were written in 1949 
and the UCMJ was adopted in 1951. These documents were not written to 
address the war we are now fighting. In that sense, what we are 
required to do after Hamdan is broader than war crimes trials, it is 
the start of a new legal analysis for the long war. It is time for us 
to think about war crime trials and a process that provides due process 
and protects national security in the new war.
  So what do we do with these new military commissions? We uphold basic 
human rights and state what our compliance with this standard means for 
the treatment of detainees. We

[[Page 20729]]

do this in a way that is fair and the world will acknowledge as fair.
  First, we provide accused war criminals at least 26 rights if they 
are tried by a commission for a war crime. While I will not read them 
all, here are some of the essential rights we provide.
  Right to Counsel, provided by government at trial and throughout 
appellate proceedings;
  Impartial judge;
  Presumption of innocence;
  Standard of proof beyond a reasonable doubt;
  The right to be informed of the charges against him as soon as 
practicable;
  The right to service of charges sufficiently in advance of trial to 
prepare a defense;
  Mr. Speaker, since I am inserting my entire text in the Record, I 
will not read them all at this point.
  The right to reasonable continuances;
  Right to peremptory challenge against members of the commission and 
challenges for cause against members of the commission and the military 
judge;
  Witness must testify under oath; judges, counsel and members of 
military commission must take oath;
  Right to enter a plea of not guilty;
  The right to obtain witnesses and other evidence;
  The right to exculpatory evidence as soon a practicable;
  The right to be present at court with the exception of certain 
classified evidence involving national security, preservation of safety 
or preventing disruption of proceedings;
  The right to a public trial except for national security issues or 
physical safety issues;
  The right to have any findings or sentences announced as soon as 
detennined;
  Right against compulsory self-incrimination;
  Right against double jeopardy;
  The defense of lack of mental responsibility;
  Voting by members of the military commission by secret written 
ballot;
  Prohibitions against unlawful command influence toward members of the 
commission, counselor military judges;
  \2/3\ vote of members required for conviction; \3/4\ vote required 
for sentences of life or over ten years; unanimous verdict required for 
death penalty;
  Verbatim authenticated record of trial;
  Cruel or unusual punishments prohibited;
  Treatment and discipline during confinement the same as afford to 
prisoners in U.S. domestic courts;
  Right to review of full factual record by convening authority; and
  Right to at least two appeals including to a federal Article III 
appellate court.
  We provide all of these rights, and we give them an independent 
judge, and the right to at least two appeals, including the U.S. Court 
of Appeals for the District of Columbia and access to the Supreme 
Court. No one can say this is not a fair system.
  I know some of my colleagues are concerned about the issue of 
reciprocity. I ask them to look at the list of rights I just 
summarized. And also keep in mind, that these are rights for 
terrorists. If we are talking about true reciprocity, then we are only 
concerned about how the enemy will treat American terrorists. These are 
not our rules for POWs. We treat the legitimate enemy differently and 
expect them to treat our troops the same.
  How do we try the enemy for war crimes? In this Act, Congress 
authorizes the establishment of military commissions for alien unlawful 
enemy combatants, which is the legal term we use to define 
international terrorists and those who aid and support them, in a new 
separate chapter of Title 10 of the U.S.C. Code, Chapter 47A. While 
this new chapter is based upon the Uniform Code of Military Justice, it 
creates an entirely new structure for these trials.
  In this bill we provide standards for the admission of evidence, 
including hearsay evidence and other statements, that are adapted to 
military exigencies and provide the military judge the necessary 
discretion to determine if the evidence is reliable and probative.
  I want to talk a little bit about how we handle classified evidence. 
We had three hearings on this bill in addition to briefings and 
meetings with experts. I asked every witness the same question. If we 
have an informant, either a CIA agent or an undercover witness of some 
sort, are we going to tell Kalid Sheik Mohammad who the informant is? 
This legislation does not allow KSM to learn the identity of the 
informant. After several twists and turns in the road, after meeting 
with the Senate and the White House in marathon sessions over the 
weekend, we have crafted a solution that does not allow the KSM to 
learn the identify of the informant, yet provides a fair trial. How do 
we do this? We address this in Section 949d(f) of Section 3. Classified 
evidence is protected and is privileged from disclosure to the jury and 
the accused if disclosure would be detrimental to national security. 
The accused is permitted to be present at all phases of the trial and 
no evidence is presented to the jury that is not also provided to the 
accused.
  Section 949d(f) makes a clear statement that sources, methods, or 
activities will be protected and privileged and not shown to the 
accused, however, the substantive findings of the sources, methods, or 
activities will be admissible in an unclassified form. This allows the 
prosecution to present its best case while protecting classified 
information. In order to do this, the military judge questions the 
informant outside the presence of the jury and the defendant. In order 
to give the jury and the defendant a redacted version or the 
infornant's statement, the just must find: (1) that the sources, 
methods, or activities by which the U.S. acquired the evidence are 
classified and (2) the evidence is reliable. Once the judge stamps the 
informant as reliable, the informant's redacted statement is given to 
both the jury and the accused. It removes the confrontation issue, yet 
allows the accused to see the substance of the evidence against him. I 
think these rules protect classified evidence and yet preserve a fair 
trial.
  Unauthorized disclosures, not only of classified information, but 
also of our interrogation techniques, are extremely damaging to our 
intelligence efforts. Our personnel have encountered enemy combatants 
trained to resist disclosed interrogation techniques thanks to leakers 
in our media. I'm pleased that with the current Military Commission 
legislation moving forward, we have reaffirmed our strict adherence to 
the U.S. anti-torture laws, while at the same time allowing our CIA to 
move forward with an effective interrogation program whose techniques 
will not be published in the Federal Register, or God forbid, in 
another newspaper disclosure. This legislation preserves the necessary 
flexibility for the President and the CIA to utilize all lawful and 
effective methods of interrogation. Let me be clear: the bill defines 
the specific conduct that is prohibited under Common Article 3, but it 
does not purport to identify interrogation practices to the enemy or to 
take any particular means of interrogation off the table. Rather, this 
legislation properly leaves the decision as to the methods of 
interrogation to the President and to the intelligence professionals at 
the CIA, so that they may carry forward this vital program that, as the 
President explained, serves to gather the critical intelligence 
necessary to protect the country from another catastrophic terrorist 
attack.
  One other point I want to make for the record. As I mentioned 
earlier, we have modified the rules of evidence to adapt to the 
battlefield. One of the principles used by the judiciary in criminal 
prosecutions of our citizens is called the ``fruit of the poisonous 
tree doctrine.'' The rule provides that evidence derived from 
information acquired by police officials or the government through 
unlawful means is not admissible in a criminal prosecution. I want to 
make it clear that it is our intent with the legislation not to have 
this doctrine apply to evidence in military commissions. While evidence 
obtained improperly will not be used directly against an accused, we 
will not limit the use of any evidence derived from such evidence. The 
deterrent effect of the exclusionary rule is not something that our 
soldiers consider when they are fighting a war. The theory of the 
exclusionary rule is that if the constable blunders, the accused will 
not suffer. However, we are not going to say that if the soldier 
blunders, we are not going to punish a savage terrorist. Some rights 
are reserved for our citizens. Some rights are reserved for civilized 
people.
  Mr. Speaker, this is a complicated piece of legislation. In addition 
to establishing an entire legal process from start to finish, we 
address the application of common Article 3 of the Geneva conventions 
to our current laws.
  Section 5 clarifies that the Geneva Conventions are not an 
enforceable source of rights in any habeas corpus or other civil action 
or proceeding by an individual in U.S. courts.
  Section 6 of the bill amends 18 U.S.C. Section 2441, the War Crimes 
Act to criminalize grave breaches of common Article 3 of the Geneva 
Conventions. As amended, the War Crimes Act will fully satisfy our 
treaty obligations under common Article 3. This amendment is necessary 
because currently Section (c)(3) of the War Crimes Act defines a war 
crime as any conduct which constitutes a violation of Common Article 3. 
Common Article 3 prohibits some actions that are universally condemned, 
such as murder and torture but also prohibits ``outrages upon personal 
dignity'' and ``humiliating and degrading treatment,'' phrases which 
are vague and do not provide adequate guidance to our personnel. Since 
violation of Common Article 3 is a felony under the War Crimes Act, it 
is necessary to amend it to provide clarity and certainty to the

[[Page 20730]]

interpretation of this statute. The surest way to achieve that clarity 
and certainty is to define a list of specific offenses that constitute 
war crimes punishable as grave violations of Common Article 3. This is 
something we need now, because of the Hamdan decision.
  Section 6 of the bill also provides that any detainee under the 
custody or physical control of the United States will not be subject to 
``cruel, inhuman or degrading treatment or punishment'' prohibited by 
the Fifth, Eighth and Fourteenth Amendments to the Constitution, as 
defined by the U.S. reservations to the UN Convention against Torture. 
This defines our obligations under Common Article 3 by reference to the 
U.S. constitutional standard adopted by the Detainee Treatment Act of 
2005.
  Section 7 of the bill addresses the question of judicial review of 
claims by detainees by amending 28 U.S.C. Section 2241 to clarify the 
intent of the Detainee Treatment Act of 2005 to limit the right of 
detainees to challenge their detention. The practical effect of this 
amendment will be to eliminate the hundreds of detainee lawsuits that 
are pending in courts throughout the country and to consolidate all 
detainee treatment cases in the D.C. Circuit. However, I want to stress 
that under this provision detainees will retain their opportunity to 
file legitimate challenges to their status and to challenge convictions 
by military commissions. Every detainee under confinement in Guantanmo 
Bay will have their detention reviewed by the U.S. Court of Appeals for 
the District of Columbia.
  Mr. Sensenbrenner and my other colleagues are going to speak on the 
rest of the bill, but before I finish I want to make one point very 
clear. This legislation does not condone or authorize torture in any 
way. In fact, we make it a war crime, punishable by death, for one of 
our soldiers or interrogators to torture someone to death. Let me 
emphasize this again. In Section 6 of this bill, we amend 18 U.S.C. 
2441, the War Crimes Act. In this amendment we explicitly provide that 
torture inflicted upon a person in custody for the purpose of obtaining 
information is a war crime for which we may prosecute one of our own 
citizens. While most of this legislation deals with how we handle the 
enemy, I want to make it crystal clear that nothing in what we are 
doing condones or allows torture in any way.
  There is more to this bill than military commissions, however. H.R. 
6166 addresses an issue that Supreme Court created in the Hamdan case. 
The Court in Hamdan decided that Common Article 3 of the Geneva 
Conventions--a article that many assumed only applied to regular 
armies--applies to terrorist organizations, like al Qaeda. As a result 
of this decision, our brave personnel in the military and other 
national security agencies are faced with an unpredictable legal 
landscape because the meaning of certain elements of Common Article 3 
are vague.
  For example, would a female interrogator of a male Muslim detainee be 
guilty of violating Common Article 3 because the mere scenario 
constitutes an outrage upon personal dignity? Such a situation is 
untenable. It is unfair to our personnel out in the field trying to 
protect lives here at home. It is Congress' responsibility to draw the 
lines of what conduct will be criminal.
  As a result, we need to amend the War Crimes Act to make clear that 
only grave breaches of Common Article 3 constitutes a war crime under 
U.S. law. Let me be clear, under international law a party to the 
treaty is responsible for incorporating only grave breaches of Common 
Article 3 in its penal code. My point is simple: Today the Congress is 
complying with our treaty obligations under Geneva Conventions and 
today the Congress is following the guidance of the Supreme Court in 
Hamdan (even though many believe that the Court's decision was ill 
construed).
  Now, some have suggested that H.R. 6166 condones torture or that this 
bill implicitly permits ``enhanced torture techniques''. These 
suggestions are absolutely false and they fly in the face of the very 
words that appear on the pages of this bill.
  First--it is illegal under U.S. law to torture. This was true before 
H.R. 6166 and it will remain true. Moreover, H.R. 6166 makes torture a 
war crime that can result in the death penalty. This means that under 
the War Crimes Act, any U.S. personnel that engages in Torture will be 
subject to prosecution for committing a war crime. Additionally, in the 
context of military commissions, a statement obtained through torture 
is not admissible.
  Second--this bill makes clear that the way we treat our detainees is 
guided by treatment standards set by the Congress--last year--in the 
Detainee Treatment Act, also known as the McCain amendment. This 
standard is based upon the familiar standards of the U.S. Constitution. 
Thus, ``cruel, inhuman, and degrading treatment or punishment'' under 
this section means the cruel, unusual, inhumane treatment or punishment 
prohibited by the Fifth, Eighth, and Fourteenth Amendments to the 
Constitution, as defined by the U.S. reservations to the UN Convention 
Against Torture.
  I believe that the Constitution, which provides the fundamental, 
underlying protections for the citizens of the United States, provides 
more than sufficient protections for unlawful enemy combatants. Why 
should accused terrorist enjoy protections that exceed what the 
Constitution provides to United States citizens?
  Mr. Speaker, in summary, I believe that this legislation is the best 
way to prosecute enemy terrorists and to protect U.S. Government 
personnel and service members who are fighting them.
  I urge my colleagues to support this vital legislation.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SKELTON. Mr. Speaker, I yield myself such time as I may consume.
  The history of tribunals goes back to during and after the Second 
World War: The German saboteurs who were captured at Ponte Verde, 
Florida, and Long Island were tried before a tribunal; the Japanese 
leaders who carried out such inhumane treatment toward the American 
soldiers and prisoners of war, among them General Yamashita and General 
Tojo; and, of course, the Nuremberg trials held in Nuremberg, Germany, 
after the war of the Nazis who perpetrated those various crimes.
  Now, here we are trying to establish a tribunal or a commission, 
which we should do and need to do. The Supreme Court, as a result of 
the Hamdan decision, said that we in Congress need to do it as opposed 
to an Executive Order. But what we needed to do was to be tough on 
terrorists. And being a former prosecuting attorney and knowing that 
the specter that hangs over every prosecutor's head is that a hard-won 
victory in court will be overturned by an appellate court or by a 
Supreme Court, we should be tough on the terrorists; not just tough on 
them with the law but tough on them with certainty, not giving the 
opportunity through legislation for the overturning of a conviction.
  Now, as you know, Mr. Speaker, there are two ways in which a 
conviction may be overturned. Number one is on the evidence; a mistake 
made by the judge or a comment made by the prosecutor. On the other 
hand, someone may have their conviction overturned in the event that 
the law upon which the conviction is based is unconstitutional. In my 
debate and comments recently, I pointed out some seven areas of 
constitutional uncertainty which may very well cause a reversal of a 
conviction. Consequently, I think this bill before us, as I have said 
before, is flawed and that will cause us not only to be not tough but 
to be uncertain that these convictions will be upheld.
  Mr. Speaker, I reserve the balance of my time.
  Mr. HUNTER. Mr. Speaker, I will yield myself such time as I may 
consume to say, first, that I appreciate the gentleman's participation 
in the hearings and the briefings and the markup that we had on the 
initial bill that came out of the Armed Services Committee 52-8, and I 
would remind my colleagues that, in fact, the appellate route in this 
particular bill provides for the court of military review, a new court 
to be set up as a first appellate stop; and secondly, the D.C. Circuit 
Court. And in channeling all of the actions to the D.C. Circuit Court, 
we are going to a court that has lots of experience, is building a body 
of experience in this type of work, and that will keep us from rifle-
shooting actions out throughout the country.
  I think that makes for an efficient process, and it provides now two 
appellate reviews, whereas the Democrat substitute had only one 
appellate review before you would apply for final review by the Supreme 
Court, which might or might not occur. So instead of one review, we 
have two reviews. And I think that that is a strengthening, if you 
will, of this bill that is one more measure to ensure that as we move 
forward on this process of bringing to justice those who attacked our 
country, we give them a robust right of appeal.
  Having said that, Mr. Speaker, I yield 5 minutes to the gentleman 
from

[[Page 20731]]

Indiana (Mr. Buyer), who is the chairman of the Veterans' Affairs 
Committee and a former JAG officer himself.
  Mr. BUYER. Mr. Speaker, I thank the gentleman for yielding. I was a 
good listener to my colleague, Mr. Skelton, and we have worked very 
well over the years. Sometimes we disagree, but I think more times we 
agree than disagree.
  In review of the section, though, I would say to my good friend from 
Missouri that, with regard to how individuals are tried, I have worked 
with the administration and the Senate and with my good friend Lindsey 
Graham. When you start this legislative process, Mr. Skelton, and you 
start with five amendments and you end up with a colloquy, some good 
things must have happened in the process. So I just want my good friend 
from Missouri to know that a lot of the concerns I had have been worked 
out with Mr. Hunter, with his cooperation, and with the Senate and with 
the administration.
  I know some of you have some concerns that didn't get worked out, and 
I can understand that and I can relate to the gentleman, but with 
regard to a process here, the Supreme Court struck down the tribunals, 
said the Congress needs to act on this to come up with a process, and 
when I examined this, we took some of the best, not only of our own 
legal system, but we took some of the best out of the UCMJ, and we took 
some of the best out of the world court to create the military 
commissions.
  So, now, when you look at title 18, the first chapter will be the 
Federal criminal code that will apply to United States citizens. The 
second chapter then is the UCMJ, and the third chapter will now be the 
Code of Military Commissions. In my judgment, the Code of Military 
Commissions is in fact a process that will reflect America's values, 
and it will be balanced against the protection of our national 
security, and it has indispensable judicial guarantees that are 
recognized by the world.
  The Supreme Court, yes, they will examine our commissions, no 
differently than how they examine the tribunals, but I am left in an 
area of good comfort, and that is my counsel that I now give to my 
country, of 26 years' experience not only as a military JAG officer but 
also the 14 years here helping lead our country. I am comfortable with 
regard to this process, not only if I were the military prosecutor but 
even if I were the military defense counsel, about the protections that 
we are affording not only this unlawful enemy combatant but making sure 
that we have a balance of interests.
  Yesterday, on the floor, a couple of our colleagues had raised some 
issues as to whether American citizens could be subject to the Code of 
Military Commissions and whether or not, if an American citizen was 
even classified as an enemy combatant, could they then be subject to a 
military tribunal. The answer is no. American citizens cannot. Mr. 
Hunter has made it very clear in this language.
  So even a strict constructionist, when they read this language in the 
Supreme Court, it is very clear. Section 948 says this does not apply 
to American citizens; that it only applies to aliens. But let's go with 
an example: Let's say an American citizen has been arrested for aiding 
and abetting a terrorist, maybe even participating in a conspiracy, or 
maybe participating in an action that harmed or killed American 
citizens.

                              {time}  1215

  That American citizen cannot be tried in the military commission. His 
coconspirators could be tried in a military commission if they were an 
alien, but if that other coconspirator is an American citizen, they 
will be prosecuted under title 18 of the first chapter of a Federal 
crime, or even we could assimilate the State laws under the Assimilated 
Crimes Act.
  I am trying to go into details, and I want to share with the American 
people here beyond the rhetoric that sometimes you hear on the floor, 
that with regard to the process itself, I am very comfortable with the 
fact that American citizens cannot be tried in this.
  The reason I am spending a little time on it is that there was an 
editorial that went out there by a law professor published in the Los 
Angeles Times. Let me tell you, as a lawyer myself, just because a law 
professor says it, I am going to tell you what: not necessarily true.
  I read his editorial, and I also then looked at the law. Let me now 
speak unto the law professor: read the bill. Just like what you would 
do to your law students, you would tell them to read the bill. And when 
you read the bill and when you open it up, you would find that the 
words you wrote so that the readers in Southern California would 
somehow take what, action, or give you credit or credence to your 
words, your words are false. And that is completely unfortunate.
  So hopefully people will begin to understand that this whole issue 
about these military commissions applying to American people is not 
true at all.
  In the end, let me thank Mr. Hunter on a good work product. I do wish 
that, in the end, that this really could have been a product, Mr. 
Skelton, that the two of you could have brought together. I don't know 
what happened there, because I have such respect for both of you.
  Mr. SKELTON. Mr. Speaker, I yield 3 minutes to the gentleman from New 
York (Mr. Nadler).
  Mr. NADLER. Mr. Speaker, I am not going to get into any of the 
torture aspects of this bill, but I do want to address the due process 
aspects of this bill.
  The distinguished chairman says we have created a system of justice 
with plenty of rights. Well, we have created two systems of justice. 
First of all, it doesn't have so many rights. You can appeal from the 
military tribunal, but the military tribunal can hear hearsay evidence 
and it can hear evidence obtained under coercion, if not torture. That 
is debatable.
  But the appeal is only on matters of law, not fact. So if it is 
determined that it is you and not someone whose name is similar to you 
who is the unlawful enemy combatant by the military tribunal, you can't 
appeal that decision. You can only appeal the process of that decision. 
The civilian courts have nothing to say on questions of fact. That is 
number one.
  Number two, much more important, the President under this bill has 
the ability, or Federal bureaucrats, for that matter, to point their 
finger at anybody in this country or abroad, as long as he is not a 
citizen, and say you are an enemy combatant because I say so; and 
because I say so, we are going to throw you in jail forever and you 
have no right to have a military commission. We may put you before a 
military commission, in which case what they were talking about 
applies. We may put you before a combat status review tribunal, in 
which case what they were talking about applies; but there is no right 
to do that.
  The bill specifically says that this whole process is exempt from the 
speedy trial requirements of law. So you may be in jail forever because 
your name was similar to the real guy.
  The bill assumes that we need not have the normal protections that we 
have had since the Magna Carta for people to at least say habeas 
corpus; bring the body, sir King, before the magistrate to make sure 
you have the right guy, to make sure there is some basis for holding 
this person and depriving him of liberty.
  There is no such right. This person can be in jail forever without 
ever going to a military tribunal, without ever going to a combat 
status review tribunal, without anything.
  This, Mr. Speaker, is irrelevant and unconstitutional. This is un-
American. It is against all our traditions, to be able to say that 
people have no rights. It specifically says you have no right to go to 
any court, a military tribunal or a regular court, to protest that you 
are being tortured or to allege that you are being tortured. You can't 
get into court. If you are being tortured, too bad. No one knows about 
it.
  Secondly, you cannot go to court to say they got the wrong guy, 
because cops never make mistakes, no one ever makes a mistake.
  And, finally, the bill is also unconstitutional because it sets up 
two systems

[[Page 20732]]

of justice. If you pick up two people in New York, one of them is a 
citizen, they go to the Federal court, and you accuse them of being 
unlawful enemy combatants, they go to the regular American system of 
justice. One is awaiting citizenship but is a permanent resident, he 
goes through this other. He has no rights and can be in jail forever. 
That is clearly unconstitutional. It is a denial of equal protection.
  Mr. HUNTER. Mr. Speaker, I yield 1 minute to the gentleman from 
Indiana (Mr. Buyer).
  Mr. BUYER. Mr. Speaker, when the gentleman says the President can 
make any determination he wanted with regard to status, I would just 
like the gentleman to know that the determination of one's status is 
done by a tribunal under article V of the Geneva Conventions.
  Mr. NADLER. Mr. Speaker, will the gentleman yield?
  Mr. BUYER. I yield to the gentleman from New York.
  Mr. NADLER. It is supposed to be done by a tribunal under article V, 
but the President claims the power. We have never held such a tribunal.
  Mr. BUYER. Wait a minute. Reclaiming my time, please do not come to 
the floor and make things up. As a JAG officer in the first Gulf War, I 
wrote the practice and procedures for article V tribunals. I 
participated in the tribunals to determine status, a person's status. 
The President of the United States does not participate in that 
process.
  So, please, don't be silly and just make things up.
  Mr. HUNTER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, let me just go to the Detainee Act. It says that review 
is done by the District of Columbia relating to any aspect of the 
detention of an alien, and we have expanded it from Guantanamo Bay to 
anywhere, who has been determined by the United States District Court 
of Appeals for the District of Columbia Circuit in accordance with the 
procedures set forth in section 1405. So there is a process whereby the 
review is made with respect to the status of that alien.
  Let me go to a second point. The gentleman spoke about hearsay 
evidence being allowed. That is true. Hearsay evidence is allowed, with 
certain restrictions. The judge has to find that it is probative, that 
it is relevant and that it is reliable.
  The war crimes tribunals in Yugoslavia and Rwanda allow hearsay 
evidence. As I recall, the bill that was offered by Mr. Skelton, that 
was voted on in the HASC, in the Armed Services Committee, also allowed 
for the use of hearsay evidence.
  So hearsay evidence, I would say to my friends, is not excluded and 
has not historically been excluded in war crimes trials in Rwanda, in 
Yugoslavia.
  Mr. SKELTON. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, first I would make reference to my friend from Indiana 
(Mr. Buyer), and thank him for his comments. I am sorry that we don't 
agree on the basis of this. But thank you for your comments a few 
moments ago.
  Mr. Speaker, I yield 3 minutes to the gentleman from Ohio (Mr. 
Kucinich).
  Mr. KUCINICH. Mr. Speaker, I thank the gentleman from Missouri for 
his defense of basic constitutional principles. I would say that the 
basic premise of military commissions, that the U.S. military should 
try unlawful enemy combatants using draconian rules, that basic premise 
is false.
  The jury of commissioned military officers are not peers of these 
detainees. The detainees are accused of crimes against humanity and 
should be tried like all other such persons. The U.S. should hand over 
these detainees to the International Criminal Court. The U.S. should 
offer evidence that would be legal under our Constitution and the 
Geneva Conventions. This model of justice would set a precedent for 
other nations where the rule of law remains unfair, unjust, and 
inhumane.
  The wrong approach is to create a court system that has more in 
common with the nations that torture, jail and hold indefinitely anyone 
without legitimate evidence.
  The second point: H.R. 6166 and S. 3930 cast a wide net in defining 
unlawful enemy combatants that would include any American supporter of 
a national liberation movement which is seeking to overthrow a U.S. 
Government-supported despot.
  For instance, with such a loose definition, the thousands of 
Americans, many of whom are church clergy, who provided support to the 
armed and unarmed opposition to the disposed dictatorships of El 
Salvador and Nicaragua, could have been designated as unlawful enemy 
combatants.
  This hypothetical could occur since, one, it would only take a 
determination by the President or Secretary of Defense that the 
opposition to a U.S.-favored dictator was engaged in hostilities 
against the U.S., and that, two, the act of solidarity by the American 
clergymen supported the opposition group.
  This is very dangerous. It is widely known that the U.S. conducted a 
dirty war throughout Central and South America to uphold repressive 
regimes there.
  The third point I would like to make is that H.R. 6166 and S. 3930 
could make similar solidarity actions in the future a crime. Those 
crimes should not be triable by military commissions. They would be new 
crimes and expose Americans to prosecution simply for supporting 
unfortunate people in other countries who are struggling for their 
freedom.
  The other point is that H.R. 6166 and S. 3930 create a large loophole 
to keep administration officials out of jail for violations of the War 
Crimes Act of 1996. Section 4 amends the War Crimes Act to immunize 
from prosecution civilians who subject people to horrific abuse that 
may fall short of the definition of torture.
  It is clear that senior administrative officials signed off on 
aggressive and illegal techniques and are potentially liable under the 
War Crimes Act of 1996. Instead, Congress is going to gut the War 
Crimes Act to protect those who permitted torture of detainees.
  If those who think the so-called war on terror is about ideas such as 
good versus evil and democracy versus thuggery, then H.R. 6166 sends 
the wrong message about the true values of Americans. Let's stand up 
for the principles that this country was founded upon. Let's stand up 
for the Constitution, for the land of the free, for the home of the 
brave.
  Mr. HUNTER. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, let me just make a comment about the fact that we 
enumerate the crimes that might be committed, what we call the grave 
offenses under article III.
  I think that it accrues to the benefit of our soldiers, sailors, 
airmen and marines and our intelligence agents that they know what the 
crimes are when they have people in custody, and the fact that those 
grave crimes, and they are enumerated, are defined, gives clarity to 
our folks so they know what the offenses are. I think that serves the 
purpose. It does not disserve the purpose.
  But the idea that we have also reserved to the President on nongrave 
offenses, and again, one of the examples that was given by expert 
testimony was if you use the term ``degrading,'' you could charge that 
a female colonel JAG officer interrogating a Muslim male is in and of 
itself degrading, because it is a female interrogating a male, and in 
their culture that would be considered to be degrading.
  I think it is important not to expose that female JAG officer to 
liability. And it is important, therefore, when you have what you might 
consider to be minor infractions to not label that person, that 
American, a war criminal, but to allow the President as Commander in 
Chief to put forth regulations.
  So I think this is a good fit, and it gives the thing that is most 
important to personnel, and that is clarity.
  Mr. BUYER. Mr. Speaker, will the gentleman yield?
  Mr. HUNTER. I yield to the gentleman from Indiana.
  Mr. BUYER. What I would like to share with everyone, having done 
interrogations, I have interrogated Iraqi high command when I was at 
the Western Enemy Prisoner of War Camp. I assure you that trying to use 
any type of

[[Page 20733]]

method to torture or beat the person you are trying to interrogate, I 
assure you, you never want to do that as an interrogator, because 
whatever he is going to say is really not going to be helpful to you. 
So as an interrogator, it is the last thing. It wouldn't even enter 
your mind that you want to do this type of thing.
  The only time, I won't say the only time, some of the most difficult 
situations are usually what we find in the field where time is of the 
essence, where someone has just been killed, you are in a battlefield 
situation, you have gotten a prisoner and you need to know who they are 
and where they just went. That is generally where bad things happen. It 
is not at a garrison, in prison or a detention center.
  Mr. SKELTON. Mr. Speaker, I yield 2 minutes to the gentleman from 
Oregon (Mr. Wu).
  (Mr. WU asked and was given permission to revise and extend his 
remarks.)
  Mr. WU. Mr. Speaker, this is a sad day in the long history of this 
Chamber and of this Congress because today we break faith with the 
basic tenets of Anglo-American law that have come down from the Magna 
Carta, through the attempts of Charles I to suspend the writ of habeas 
corpus, to the challenges that American Presidents have faced in every 
stressful conflict situation in this Nation's history.

                              {time}  1230

  Although we should care about the rights of aliens seized in other 
countries, we should care, what we are debating today are the rights of 
American citizens here in the United States.
  If my wife, a sixth generation Oregonian, were seized up and detained 
under the law we are considering today, she would disappear into a 
black hole of detention with no access to article 3 courts. At best, 
she would get a military tribunal, and that is not what American 
citizens deserve. The Koramatsu case from World War II is still the law 
of the land. It has not been overturned. And what it stands for is the 
proposition that civilians can be held by the military in this country. 
The Koramatsu case has been called a gun pointed at the heart of our 
civil liberties, and today this Congress loads that weapon.
  This law is unwise as it is unconstitutional, and we should not be 
enacting this in haste. The great writ is one of our great protections. 
It applies to all Americans, and Americans should not be tried by a 
military tribunal.
  Mr. SKELTON. Mr. Speaker, I recognize the ranking member of the 
Judiciary Committee (Mr. Conyers) for 1 minute.
  Mr. CONYERS. I thank the gentleman for yielding. He has done great 
legal work from the Armed Services Committee.
  I just keep going through my mind, and this is getting to be a night 
and day job, because I have a Member I respect so much in judiciary, 
Mr. Lungren, who keeps trying to tell us that there are two writs of 
habeas corpus. A wonderful idea, if it were only true.
  The statutory writ of habeas corpus, I say to my colleague from 
California, is to implement the great writ in the Constitution. So to 
be telling us repeatedly, repeatedly, and I have got the cases, I have 
been waiting for this great moment in American judiciary history, that 
there are two writs and that you have got to know which one you are 
talking about is absolutely incorrect.
  Mr. SKELTON. Mr. Speaker, I yield 4 minutes to the gentlewoman from 
Texas, Sheila Jackson-Lee.
  Ms. JACKSON-LEE of Texas. Let me thank the distinguished ranking 
member of the Armed Services for his very insightful, instructive 
messages on the dilemma we face in Iraq and Afghanistan. Let me also 
acknowledge that there are individuals who have had firsthand 
experience in the military courts.
  Having gone to a law school that had a very outstanding JAG school, I 
understand the importance of military law and was one time a member of 
the U.S. Military Court of Appeals.
  But I think it is important that we make this argument 
understandable, because in a few hours the President will give to my 
friends on the other side of the aisle an opportunity of bragging 
rights by having signed a bill that has been rushed through this 
process and has totally ignored the Supreme Court's decision.
  Why are we standing here on this side of the aisle seemingly making 
arguments that don't promote security and safety in the United States? 
Well, that interpretation is totally wrong, because not one of us wants 
to take away the tools that would ensure America's security. But what 
we are concerned about are the faces here who represent those who have 
lost their lives on the front lines of Iraq and Afghanistan, and they 
continue over and over again. We have concerns about the life they 
sacrifice and the soldiers that they left behind. We know that soldiers 
don't leave comrades on the battlefield, injured or lost in the line of 
battle.
  Today, this military tribunal commission will leave our soldiers on 
the battlefield, for what it does is it creates the atmosphere, no 
matter whether we are in a guerilla war or we are in the 
confrontational wars that we know of World War I and II. It is to 
ensure that the treatment of our soldiers, if caught by the enemy, will 
reflect the lack of treatment that we have given here.
  Mr. Skelton has made it very clear, we could fix this, because he 
would have provided an expedited Constitution review of the entire 
matter to give the opportunity for entry into the courts under habeas. 
It would also require that these military commissions, because they are 
eliminating rights, we are not saying releasing people, we are saying 
eliminating rights, that then get translated to the miserable treatment 
of those who were incarcerated or taken off the battlefield that are 
our soldiers.
  Secondly, it refuses to give reauthorization language to the military 
commissions. We don't know where we will be in 3 years. We don't know 
how negatively this will impact our soldiers on the battlefield, which 
next conflict that, God forbid, we may have to be engaged in.
  Also, the language that my friends have go beyond the scope of the 
Supreme Court's decision in Hamdan to decide whether or not detainees 
have habeas rights. The court already decided they do. Or whether or 
not the habeas provisions in the Detainee Treatment Act are 
constitutionally legal. The habeas provisions in the legislation are 
contrary to congressional intent in the Detainee Treatment Act. In that 
act, Congress did not intend to strip the courts of jurisdiction over 
the pending habeas.
  In addition, although my friends say they fixed it, they also deny 
the rights which I had an amendment to to utilize the Geneva 
Conventions language to say that you were tortured or not tortured, 
even if you would put that defense in a classified presentation.
  So in concluding, let me say we owe them a debt of gratitude. Let's 
vote down this tribunal to save future lives.
  I rise in strong opposition to S. 3930, the Military Commissions Act. 
I oppose this bill because I stand strong for our troops. I stand 
strong for the Constitution. I stand strong for the values that have 
made our country, the United States of America, the greatest country in 
the history of the world. I oppose this legislation because it is not 
becoming a nation that is strong in its values, confident of its 
future, and proud of its ancient heritage.
  Mr. Speaker, let us be crystal clear: All Americans, and Democrats 
especially, want those responsible for 9/11 and other terrorist acts to 
be tried fairly and punished accordingly, and we want those convictions 
to be upheld by our courts.
  Democrats want the President to have the best possible intelligence 
to prevent future terrorist attacks on the United States and its 
allies.
  Democrats agreed with the President when he said ``whether the 
terrorists are brought to justice or justice brought to the terrorists, 
justice will be done.'' But Democrats understand that justice requires 
the Congress to establish a system for trying suspected terrorists that 
not only is fundamentally fair but also consistent with the Geneva 
Convention.
  We should abide by the Geneva Convention not out of some slavish 
devotion to international law or desire to coddle terrorists, but 
because adherence to the Geneva Convention protects American troops and 
affirms American values.

[[Page 20734]]

  S. 3930, the compromise before us, includes some improvements that I 
strongly support. For example, evidence obtained through torture can no 
longer be used against the accused. Similarly, the compromise bill 
provides that hearsay evidence can be challenged as unreliable.
  Perhaps the most important improvement over the bill passed by the 
House is that accused terrorists will have the right to rebut all 
evidence offered by the prosecution. As is the case in the existing 
military justice system, classified evidence can be summarized, 
redacted, declassified, or otherwise made available to the accused 
without compromising sources or methods. This change to the bill goes a 
long way toward minimizing the chance that an accused may be convicted 
with secret evidence, a shameful practice favored by dictators and 
totalitarians but beneath the dignity of a great nation like the United 
States. As Senator John McCain said:

       I think it's important that we stand by 200 years of legal 
     precedents concerning classified information because the 
     defendant should have a right to know what evidence is being 
     used.

  However, I am concerned that there is reason to believe that even 
with this compromise legislation, this system of military commissions 
may lead to endless litigation and get struck down by the courts. Then 
we would find ourselves back here again next year, or five years from 
now, trying to develop a system that can finally bring the likes of 
Khalid Sheik Mohammed to justice. Why would we want to give terrorist 
detainees a ``get out of jail free'' card when we can avoid that by 
establishing military commissions that work. As currently written, the 
compromise bill has provisions that could lead to the reversal of a 
conviction.
  Specifically, the bill contains a section that strips the federal 
courts of jurisdiction over habeas corpus petitions filed prior to the 
passage of the Detainee Treatment Act last December on behalf of 
detainees at Guantanamo Bay. Mr. Speaker, nine former federal judges 
were so alarmed by this prospect that they were compelled go public 
with their concerns:

       Congress would thus be skating on this constitutional ice 
     in depriving the federal courts of their power to hear the 
     cases of Guantanamo detainees. . . . If one goal of the 
     provision is to bring these cases to a speedy conclusion, we 
     can assure from our considerable experience that eliminating 
     habeas would be unconstitutional.

  Mr. Speaker, common Article 3 of the Geneva Convention requires that 
a military commission be a regularly constituted court affording all 
the necessary ``judicial guarantees which are recognized as 
indispensable by civilized peoples. Notwithstanding the provision in 
the House bill that the military commissions established therein 
satisfy this standard, the fact is that other nations will agree. 
Simply saying so does not make it so. Moreover, they may well be right. 
Consider this, Mr. Speaker:

       The compromise allows statements to be entered into 
     evidence that were obtained through cruel, inhuman and 
     degrading treatment and lesser forms of coercion if the 
     statement was obtained before passage of the Detainee 
     Treatment Act last December.
       To provide limited immunity to government agents involved 
     in the CIA detention and interrogation program, the bill 
     amends the War Crimes Act of 1996 to encompass only ``grave 
     breaches'' of the Geneva Conventions. U.S. agents could not 
     be tried under the War Crimes Act of 1996 to encompass only 
     ``grave breaches'' of the Geneva Convention. U.S. agents 
     could not be tried under the War Crimes Act for past actions 
     that degraded and humiliated detainees. The bill also limits 
     any use of international law such as the Geneva Convention in 
     interpreting the War Crimes Act.

  Mr. Speaker, what is sometimes lost sight of in all the tumult and 
commotion is that the reason we have observed the Geneva Conventions `` 
since their adoption in 1949 is to protect members of our military. But 
as the Judge Advocate Generals pointed out, the compromise bill could 
place United States servicemembers at risk by establishing an entirely 
new international standard that American troops could be subjected to 
if captured overseas. As Rear Admiral Bruce McDonald testified:

       I go back to the reciprocity issue that we raised earlier, 
     that I would be very concerned about other nations looking in 
     on the United States and making a determination that, if it's 
     good enough for the United States, it's good enough for us, 
     and perhaps doing a lot of damage and harm internationally if 
     one of our servicemen or -women were taken and held as a 
     detainee.

  What's more, Mr. Speaker, the Geneva Conventions also protect those 
not in uniform--special forces personnel, diplomatic personnel, CIA 
agents, contractors, journalists, missionaries, relief workers and all 
other civilians. Changing our commitment to this treaty could endanger 
them, as well.
  We can fix these deficiencies easily if we only we have the will. 
What we should do is recommit the bill with instructions to add two 
important elements: (1) expedited constitutional review of the 
legislation; and (2) a requirement that these military commissions be 
reauthorized after three years.
  Under expedited review, the constitutionality of the military 
commission system could be tested and determined quickly and early--
before there are trials and convictions. And it would help provide 
stability and sure-footing for novel legislation that sets up a 
military commissions system unlike anything in American history.
  Such an approach provides no additional rights to alleged terrorists. 
All it does is give the Supreme Court of the United States the ability 
to decide whether the military commissions system under this act is 
legal or not. It simply guarantees rapid judicial review.


                requiring reauthorization in three years

  Second, any system of military commissions to deal with detainees 
should be required to be reauthorized in three years. There are several 
good for requiring Congress to reaffirm its judgment that such 
tribunals are necessary:
  The Military Commissions Act of 2006 is a far-reaching measure that 
implements an entirely new kind of military justice system outside the 
Uniform Code of Military Justice. It has many complex provisions.
  This legislation has been rushed to the floor. It has numerous 
provisions that are still poorly understood by many in Congress. By 
requiring a reauthorization in three years, we give Congress the 
ability to carefully review how this statute is working in the real 
world.
  Providing for a reauthorization in three years is the best way to 
ensure congressional oversight. This reauthorization requirement will 
allow Congress to evaluate the effectiveness of the military commission 
provisions and decide whether they need any modifications in the 
future.
  The reauthorization requirement in the PATRIOT Act has worked well--
compelling Congress to review how various provisions in the PATRIOT Act 
have worked. As a result of congressional review, important 
modifications in the PATRIOT Act were signed into law in January 2006 
when 16 provisions were reauthorized.
  Mr. Speaker, even Republicans on the House Judiciary Committee 
admitted that the only way Congress was able to get information out of 
the Justice Department about the operation of the PATRIOT Act was that 
Congress had to reauthorize it--similarly, the only way Congress will 
be able to perform proper oversight on military commissions is this 
similar requirement that the program must be reauthorized. The 
reauthorization requirement is a critical tool in Congress' ability to 
hold the Administration accountable and review the military commission 
program's performance.
  Mr. Speaker, I cannot recall being asked to render final judgment on 
a matter of such scope, consequence, and moment in so short a period of 
time with such a sparsely developed legislative record. Now is not the 
time to rush blindly forward. Rather, now more than ever, it is 
important to take our time and make the right decision and establish 
the right policy. And the right policy is not to jettison the Geneva 
Convention.
  We should not try to redefine the Geneva Convention. We should not do 
anything to alter our international obligations in an election-year 
rush. We cannot use international law only when it is convenient and 
expedient. Our commitment to the Geneva Conventions gives us the moral 
high ground. This is true in both a long war against radical terrorists 
and a war for the hearts and minds of people from every religion and 
every nation. If we compromise our values, the terrorists win. As 
Senator McCain has said: ``This is not about the terrorists are, this 
is about who we are.''
  The United States was one of the prime architects of the Geneva 
Conventions and other international laws. Our goal was to protect 
prisoners of war in all kinds of armed conflicts and insure that no one 
would be outside the law of war. Coming shortly after World War II, 
they knew the horrors of war but they still chose to limit the 
inhumanity of war by establishing minimum protections of due process 
and humane treatment, even for those accused of grave breaches of the 
Conventions.
  Mr. Speaker, our nation has the finest military in the world. Our 
nation also deserves to have the finest military justice system in the 
world. I oppose S. 3930 because it departs significantly from the tried 
and true procedures established in the UCMJ.
  The United States has long served as the model for the world of a 
civilized society that effectively blends security and human liberty. 
When we refuse to observe the very international standards for the 
treatment of detainees, which we were so instrumental in developing, we 
provide encouragement for others

[[Page 20735]]

around the world to do the same. Our British allies have demonstrated 
that these traditional principles can be adhered to without 
distinguishing the ability to provide for the security of its citizens. 
We must do likewise.
  Mr. Speaker, the treatment and trials of detainees by the United 
States is too important not to do it right. In the words of Jonathan 
Winthrop, often quoted by President Reagan, ``for we must consider that 
we shall be as a City upon a hill. The eyes of all people are upon 
us.'' Let us act worthy of ourselves and our nation.
  So Mr. Speaker, I stand in opposition to this legislation. But I do 
not stand alone. I stand with former Secretary of State Colin Powell. I 
stand with former Chairman of the Joint Chiefs John Vesey. I stand with 
the 911 Families Opposed to Administration Efforts to Undermine Geneva 
Conventions. I stand with the retired federal judges and admirals and 
Judge Advocate Generals.
  The bill before us is not the right way to do justice by the American 
people. I therefore cannot support it and I urge my colleagues to 
reject it. We have time to come up with a better product and we should. 
The American people deserve no less. The eyes of the world are upon us. 
Let us act worthy of ourselves.
  Mr. SKELTON. I yield 1\1/2\ minutes to the gentleman from New York 
(Mr. Nadler).
  Mr. NADLER. Mr. Speaker, this bill says the term ``unlawful enemy 
combatant,'' means, one, a person who is engaged in hostilities or who 
is purposefully and materially supportive of hostilities against the 
United States; or, two, a person who has been determined to be an 
unlawful enemy combat status, review tribunal, or another competent 
tribunal established under the authority of the President.
  In other words, you could become an unlawful enemy combatant because 
you are adjudged by a tribunal; or, one, because the President says so 
without a tribunal. Otherwise, this language has no meaning. That's 
page 3 of the bill.
  And if you look at page 93 of the bill, you find that no court shall 
have jurisdiction to hear an application for writ of habeas corpus or 
for an application relating to any aspect of the detention transfer, 
treatment, trial, or conditions of confinement of an alien who is an 
unlawful enemy combatant.
  In other words, anyone other than the citizen can be accused by the 
President or by any bureaucrat of being an unlawful enemy combatant, 
thrown into jail, and get no benefits.
  We have heard repeatedly that we are giving rights to terrorism. No, 
we are not. We are not trying to give rights to terrorists. We are 
saying that before someone is accused of rape or murder, you don't 
string them up; you first give them a trial and then string them up.
  And what they are saying, what this bill says is the President or his 
designee can designate someone as an unlawful enemy combatant, and, 
with no trial, no hearing, no status review, no nothing, throw them in 
jail forever. That is un-American. It is worse than what we rebelled 
against the King of England for in 1776, and we should be ashamed of 
ourselves.
  Mr. HUNTER. I yield myself such time as I may consume, Mr. Speaker. 
And let me make five points here.
  First, there is nothing in this language that directs people to pick 
up or not pick up people. This is the language. This bill designs and 
constructs military commissions. On page 8 of the bill it gives the 
jurisdiction of the commission, and it says: ``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.'' 
That would allow us also to try those folks from the Cole and the 
Embassy bombings.
  With respect to habeas, there is no soldier in the world, no POW in 
the world from our research who has a habeas right.
  And let me go to Mr. Wu's point. Mr. Wu said, when we pointed out the 
Detainee Treatment Act provided for review, he said that he thought it 
expired because it was attached to an appropriations bill and expired 
annually. That is not so. It is a permanent code. So the Detainee 
Treatment Act is in place. And if the gentleman can show me where it is 
expired, we will be happy to entertain that.
  Secondly, the gentleman also said that it was procedural only. I am 
referring to the Detainee Treatment Act that says that the court has 
the jurisdiction to review relating to any aspect, and I am quoting, 
any aspect of the detention of the person in question, relating to any 
aspect. And, of course, that would go as to whether he was a combatant. 
So it was not as you stated, it is not simply a procedural review.
  So I just want to go over those points.
  I reserve the balance of my time.
  Mr. SKELTON. I yield 2 minutes to the gentlewoman from California 
(Mrs. Davis), who is a member of the Armed Services Committee.
  Mrs. DAVIS of California. Mr. Speaker, I want to give this 
administration, any administration, the ability to prosecute, convict, 
and punish individuals who have committed terrorist acts and who are 
planning acts against the United States. But we must do this under the 
guidelines outlined by the Supreme Court in Hamdan v. Rumsfeld.
  The Court entrusted this Congress with the duty to reform military 
tribunals in a matter consistent with the Constitution and 
international treaty obligations.
  While the Senate attempted to respect our obligations under Geneva, 
concern remains. We have heard that on many occasions that this bill 
will grant the Executive the power to define certain types of 
interrogation methods that may be inconsistent with common article 3 of 
the Geneva Conventions.
  Now, Mr. Speaker, in response to Hamdan, the House Armed Services 
Committee heard from current and former judge advocate generals. Mr. 
Speaker, I listened to them. Their testimony was compelling. Many spoke 
out against modifying the Geneva Conventions in any way, in anyway, 
because of the risk that this provision could put our troops in harm's 
way and could be found to be inconsistent with Hamdan. Congress must 
ensure that this doesn't happen.
  In this bill, I believe, Mr. Speaker, that we miss an opportunity to 
be absolutely clear on these points and to show the world that America 
can be tough on terrorism while staying true to the values we hold so 
dear.
  Ms. JACKSON-LEE of Texas. If the gentlewoman would yield just for a 
moment. I thank you for your comments. I think it should be clear that 
the framework for soldiers may not be habeas in civilian language, but 
there is a procedure that soldiers would have to be able to petition 
their detention, and it is a military term. And what we are seeing in 
the military tribunals commission language is that doesn't exist.

                              {time}  1245

  Mr. SKELTON. Mr. Speaker, in closing, let me say that being tough on 
terrorists not only centers about a conviction, a judgment rendered on 
what they did, whether it be the death penalty, life imprisonment or a 
term of years but also centers upon the fact that there is certainty 
after a conviction; and the last thing I want to see coming out of this 
is for there to be a reversal on appeal which destroys certainty 
because of what we did in this law.
  Mr. Speaker, I yield back the balance of my time.
  Mr. HUNTER. Mr. Speaker, I yield the balance of my time to the 
distinguished chairman of our Veterans Committee and former JAG 
officer, Mr. Buyer, for our closing remarks.
  Mr. BUYER. Mr. Speaker, to bring a chill into the debate, the issue 
of who can be detained is not addressed in this bill. This bill is 
about trying alien detainees who are unlawful enemy combatants. Nothing 
in this bill changes the Detainee Treatment Act of 2005.
  The SPEAKER pro tempore (Mr. Price of Georgia). All time has expired.
  The Chair recognizes the gentleman from Wisconsin.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, I rise in support of S. 3930, the Military Commissions 
Act of 2006, which is identical to legislation this House passed in a 
bipartisan manner on Wednesday evening by a vote

[[Page 20736]]

253-168. The other body voted 65-34 to approve this bill last night.
  Let me say that the only reason we are here today is because the 
other body has committed a flagrant act of legislative plagiarism, once 
again. The House passed its version of the bill first. They would not 
take up a bill with an ``H.R.'' number but instead picked up the work 
product that this House did, put an ``S.'' number on it, and thus 
required us to have an hour debate on this issue for a second time.
  I regret that, and I think all of the arguments that were made on 
Wednesday when we fully and thoroughly debated this bill are just as 
valid today as they were 2 days ago. Because there is not one word 
changed in the legislation between the time it passed the House and the 
time the Senate reintroduced it with an ``S.'' number and put us 
through an hour debate on the rule and an hour debate on the same bill, 
in my opinion unnecessarily.
  Having said that, on the merits of the bill, the way we treat 
terrorist enemy combatants sends a strong signal to the rest of the 
world about our commitment to the rule of law. This legislation says we 
will not subject enemy combatants in our custody to the cruel and 
brutal treatment they regularly utilize against our soldiers and 
civilians.
  At the same time, this bill makes it clear to the terrorists and 
their lawyers in America that America will not allow them to subvert 
our judicial process nor to disrupt the war on terror with unnecessary 
or frivolous lawsuits. The bill strikes the right balance. It 
establishes a mechanism that is full and fair but also is orderly and 
efficient.
  Indeed, the bill provides some 26 new rights to terrorist detainees, 
far more rights than any other system employed in history to try 
suspected war criminals. Those who have suggested that this legislation 
will be found unconstitutional are misguided.
  In this legislation, we accomplish precisely what a majority of the 
Supreme Court, and particularly Justice Breyer, invited us to do in the 
Hamdan case: construct a full set of rules for conducting military 
commissions that meet the fundamental test of fairness under our 
Constitution.
  On habeas corpus, let me again restate Congress' understanding of the 
law, because it is against this backdrop that we pass this legislation 
today.
  The Supreme Court has never held that the Constitution's protections, 
including habeas corpus, extend to noncitizens held outside the United 
States. To repeat, the Supreme Court has never held that the habeas 
corpus protections contained in the Constitution apply to noncitizens 
held outside the United States.
  In fact, the Supreme Court rejected such an argument in the 1950 case 
of Johnson v. Eisentrager. That portion of Eisentrager is still good 
law. Moreover, in the 1990 Verdugo case, the court reiterated that 
aliens detained in the United States but with no substantial connection 
to our country cannot avail themselves of the Constitution's 
protections.
  If the Supreme Court follows its own precedents and takes seriously 
its invitation to Congress to legislate in this area, the Court should 
have no problem concluding that this bill passes constitutional muster.
  As we consider this legislation, it is important to remember, first 
and foremost, that this bill is about prosecuting the most dangerous 
terrorist that America has ever confronted, individuals like Khalid 
Sheikh Mohammed, the mastermind of the 9/11 attacks, or Ahbd Nashiri, 
who planned the attack on the USS Cole. None of their victims was 
treated with the same kind of respect for human life and the rule of 
law that is embodied in this legislation.
  I urge my colleagues to support this legislation, and let me 
reiterate for my colleagues the 26 rights for terrorist detainees that 
are created by this legislation. They include:
  The right to be informed of the charges against them as soon as 
practicable;
  The right to service of charges sufficiently in advance of trial to 
prepare a defense;
  The right to reasonable continuances;
  The right to preemptory challenge against members of the commission 
and challenges for cause against members of the commission and the 
military judge;
  Witness must testify under oath, and judges, counsels and members of 
the military commission must take an oath.
  There is a right to enter a plea of not guilty.
  There is a right to obtain witnesses in other evidence.
  There is a right to exculpatory evidence as soon as possible.
  There is a right to be present in court with the exception of certain 
classified evidence involving national security, preservation of safety 
or preventing disruption of proceedings;
  The right to a public trial except for national security issues or 
physical safety issues;
  The right to have any findings or sentences announced as soon as 
determined;
  The right against compulsory self-incrimination;
  The right against double jeopardy;
  The defense of lack of mental responsibility;
  Voting by members of the military commission by secret written 
ballot;
  Prohibition against unlawful command influence toward members of the 
commission, counsel or military judges;
  Two-thirds vote of members required for conviction and three-quarters 
vote required for sentence of life or over 10 years, and unanimous 
verdict required for the death penalty;
  Verbatim authenticated record of trial;
  Cruel or unusual punishments are prohibited;
  Treatment and discipline during confinement the same as afforded to 
prisoners in U.S. domestic courts;
  The right to review the full factual record by the convening 
authority; and
  The right to at least two appeals, including to a Federal Article III 
appellate court.
  I submit, Mr. Speaker, that none of the people who have been beheaded 
by terrorists had any of those rights.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I would like to begin by inserting the New York Times 
editorial of September 28 entitled ``Rushing Off a Cliff.''

               [From the New York Times, Sept. 28, 2006]

                          Rushing Off a Cliff

       Here's what happens when this irresponsible Congress 
     railroads a profoundly important bill to serve the mindless 
     politics of a midterm election: The Bush administration uses 
     Republicans' fear of losing their majority to push through 
     ghastly ideas about antiterrorism that will make American 
     troops less safe and do lasting damage to our 217-year-old 
     nation of laws--while actually doing nothing to protect the 
     nation from terrorists. Democrats betray their principles to 
     avoid last-minute attack ads. Our democracy is the big loser.
       Republicans say Congress must act right now to create 
     procedures for charging and trying terrorists--because the 
     men accused of plotting the 9/11 attacks are available for 
     trial. That's pure propaganda. Those men could have been 
     tried and convicted long ago, but President Bush chose not 
     to. He held them in illegal detention, had them questioned in 
     ways that will make real trials very hard, and invented a 
     transparently illegal system of kangaroo courts to convict 
     them.
       It was only after the Supreme Court issued the inevitable 
     ruling striking down Mr. Bush's shadow penal system that he 
     adopted his tone of urgency. It serves a cynical goal: 
     Republican strategists think they can win this fall, not by 
     passing a good law but by forcing Democrats to vote against a 
     bad one so they could be made to look soft on terrorism.
       Last week, the White House and three Republican senators 
     announced a terrible deal on this legislation that gave Mr. 
     Bush most of what he wanted, including a blanket waiver for 
     crimes Americans may have committed in the service of his 
     antiterrorism policies. Then Vice President Dick Cheney and 
     his willing lawmakers rewrote the rest of the measure so that 
     it would give Mr. Bush the power to jail pretty much anyone 
     he wants for as long as he wants without charging them, to 
     unilaterally reinterpret the Geneva Conventions, to authorize 
     what normal people consider torture, and to deny justice to 
     hundreds of men captured in error.
       These are some of the bill's biggest flaws:

[[Page 20737]]

       Enemy Combatants: A dangerously broad definition of 
     ``illegal enemy combatant'' in the bill could subject legal 
     residents of the United States, as well as foreign citizens 
     living in their own countries, to summary arrest and 
     indefinite detention with no hope of appeal. The president 
     could give the power to apply this label to anyone he wanted.
       The Geneva Conventions: The bill would repudiate a half-
     century of international precedent by allowing Mr. Bush to 
     decide on his own what abusive interrogation methods he 
     considered permissible. And his decision could stay secret--
     there's no requirement that this list be published.
       Habeas Corpus: Detainees in U.S. military prisons would 
     lose the basic right to challenge their imprisonment. These 
     cases do not clog the courts, nor coddle terrorists. They 
     simply give wrongly imprisoned people a chance to prove their 
     innocence.
       Judicial Review: The courts would have no power to review 
     any aspect of this new system, except verdicts by military 
     tribunals. The bill would limit appeals and bar legal actions 
     based on the Geneva Conventions, directly or indirectly. All 
     Mr. Bush would have to do to lock anyone up forever is to 
     declare him an illegal combatant and not have a trial.
       Coerced Evidence: Coerced evidence would be permissible if 
     a judge considered it reliable--already a contradiction in 
     terms--and relevant. Coercion is defined in a way that 
     exempts anything done before the passage of the 2005 Detainee 
     Treatment Act, and anything else Mr. Bush chooses.
       Secret Evidence: American standards of justice prohibit 
     evidence and testimony that is kept secret from the 
     defendant, whether the accused is a corporate executive or a 
     mass murderer. But the bill as redrafted by Mr. Cheney seems 
     to weaken protections against such evidence.
       Offenses: The definition of torture is unacceptably narrow, 
     a virtual reprise of the deeply cynical memos the 
     administration produced after 9/11. Rape and sexual assault 
     are defined in a retrograde way that covers only forced or 
     coerced activity, and not other forms of nonconsensual sex. 
     The bill would effectively eliminate the idea of rape as 
     torture.
       There is not enough time to fix these bills, especially 
     since the few Republicans who call themselves moderates have 
     been whipped into line, and the Democratic leadership in the 
     Senate seems to have misplaced its spine. If there was ever a 
     moment for a filibuster, this was it.
       We don't blame the Democrats for being frightened. The 
     Republicans have made it clear that they'll use any 
     opportunity to brand anyone who votes against this bill as a 
     terrorist enabler. But Americans of the future won't remember 
     the pragmatic arguments for caving in to the administration.
       They'll know that in 2006, Congress passed a tyrannical law 
     that will be ranked with the low points in American 
     democracy, our generation's version of the Alien and Sedition 
     Acts.

  Mr. Speaker, the New York Times editorial summarizes the simple fact 
that what we are doing is giving the President the power to jail, and I 
am quoting from the editorial, pretty much anyone he wants for as long 
as he wants without charging them, to unilaterally reinterpret the 
Geneva Conventions, to authorize what normal people consider torture, 
and to deny justice to hundreds of men captured in error.
  I want to repeat that, because I could have taken a lot of time to 
say the same thing.
  The President in this measure would be given the power to jail pretty 
much anyone he wants for as long as he wants without charging them, to 
unilaterally reinterpret the Geneva Conventions, to authorize what 
normal people consider torture, and to deny justice to hundreds of men 
captured in error.
  Is there anybody that would really want to implement a piece of 
legislation on this last day before recess that would do that?
  Well, maybe there is innocent error. I have talked about the very 
esteemed Attorney General from California who has up until today been 
arguing that there are two writs of habeas corpus.
  But then I come to the gentleman from Indiana who says that there is 
nothing in this bill that relates to who can be detained. He says 
absolutely nothing.
  The first page of the bill starts off with ``unlawful enemy 
combatant.'' The term ``unlawful enemy combatant'' means a person who 
has engaged in hostilities or who has purposefully or materially 
supported hostilities against the United States, and they go on to tell 
you that he can be subjected to a combatant status review tribunal or 
any other tribunal established under the authority of the President or 
the Secretary of Defense. That's the first page.
  Then I get to my esteemed chairman of the committee that the United 
States has never held that people can be detained outside of the U.S. 
and have habeas rights. Well, as my colleague, the gentleman from New 
York (Mr. Nadler), points out, we are talking about being picked up and 
held indefinitely from Chicago. You don't have to be outside of the 
U.S. That's the problem. This is the most drastic piece of legislation 
that has ever come before the House of Representatives dealing with the 
writ of habeas corpus.
  Mr. Speaker, I yield 2 minutes to the gentleman from New York (Mr. 
Nadler).
  Mr. NADLER. Mr. Speaker, the radical nature of this bill is that, as 
the gentleman from Michigan said, anybody picked up in Chicago can be 
subject to this bill. The President can determine unilaterally, look at 
paragraph 1 on page 3, that someone is an unlawful enemy combatant, or 
they can put the person before a tribunal, paragraph 2 on page 3, to 
decide if he is an enemy combatant. But you don't have to have a 
tribunal.
  A little later it says that military tribunals are not subject to the 
speedy trial rule. So someone can be determined by the executive branch 
to be an unlawful enemy combatant, someone in America, never have a 
trial, never go before a combat status review tribunal, never go before 
a military commission, have none of the rights everybody is talking 
about, and be held in jail forever. That is wrong.
  Secondly, the gentleman who was debating me before said soldiers have 
never had rights to habeas corpus. Certainly, if you pick up someone on 
the battlefield with a rifle in his arms, he shouldn't have habeas 
corpus. But if you pick up somebody in Chicago or New York or Los 
Angeles, who is to say that person is an unlawful enemy combatant? If 
you pick up somebody in Chicago or New York and say he is a murderer or 
a rapist and you want to hold him in jail until you can have a trial, 
you go before a judge and say, here is our evidence. There is some 
evidence that he is, in fact, a murderer or rapist to justify keeping 
him in jail.

                              {time}  1300

  Under this, though, you say he is an unlawful enemy combatant and 
that's that. You never hear from him again. That is against all our 
traditions. It makes the President a dictator because someone who 
claims the power to put someone in jail forever, with no hearing, no 
evidence, and no recourse, is a dictator. And on page 93 of the bill it 
says that no court shall have jurisdiction to entertain habeas corpus, 
which is simply a request to say show me why you are holding me in 
jail, or to entertain any action saying, Hey, you are torturing me, 
about the condition of confinement. So you can take this person because 
the President says so, put him in jail, subject him to any torture or 
whatever, and whatever you write in the law doesn't matter because no 
court can hear the case. There is no one to bring the complaint before 
it. That is wrong and it is insupportable.
  Mr. SENSENBRENNER. Mr. Speaker, the gentleman from California, Mr. 
Lungren, was so moved by the last speech that I yield him 2 minutes.
  Mr. DANIEL E. LUNGREN of California. Mr. Speaker, I thank the 
gentleman for the time.
  Mr. Speaker, let me make clear, first of all, the distinguished 
ranking member of the full committee referred to the first page of the 
bill, but he needs to go on further, to section 948b subsection (a), 
which defines the purpose of the military tribunals, where it says: 
``This chapter establishes procedures governing the use of military 
commissions to try alien unlawful enemy combatants.'' So where 
initially he referred to the definition of unlawful enemy combatants, 
this bill refers to ``alien'' unlawful enemy combatants engaged in 
hostilities against the U.S. So you can't pick up just anybody in the 
United States.
  Section 948a(3) defines an alien as a person who is not a citizen of 
the United States. Therefore, the language of the bill before us 
precludes the use of military commissions to try citizens of the U.S.

[[Page 20738]]

  Second, the limitations on habeas corpus also only apply to alien 
enemy combatants. By its very terms, section 7 says that ``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 . . . '' Therefore, under 
the expressed terms of the bill, an American citizen will have the 
unencumbered ability to challenge his or her detention as they have 
under the Constitution.
  So let's not confuse it. Let's read all sections of the bill. We are 
dealing with, as the bill says, ``alien unlawful enemy combatants,'' 
those people who are not in uniform, those people who are not following 
the rules of international law with respect to war, those people who 
hide behind women and children, those people who use the very fact that 
they are not identified as ``legal combatants'' to try to kill and maim 
Americans around the world.
  That is what this tribunal is set up for, and to give them more 
rights than they would have virtually anywhere else and in any other 
system, as articulated by the chairman of the full committee. So let's 
not confuse the facts.
  Mr. CONYERS. Mr. Speaker, I yield 1 minute to the distinguished 
gentlewoman from Texas (Ms. Jackson-Lee), a superlative member of the 
committee.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the distinguished 
gentleman. He has waged a powerful argument.
  My good friend from California is arguing, if we had taken the time 
to clarify this bill. Let me tell you what is really in the bill.
  First of all, as I continue to acknowledge the existence of the lost 
lives of our soldiers, the bill does not clarify this whole definition. 
We have 11,000 non-U.S. citizens serving in the United States Army. We 
have individuals who are U.S. legal aliens, United States citizens. 
There is no clarification that they could not be defined as an unlawful 
enemy combatant. The definition of ``alien'' is unclear. In some places 
it is defined; in some places it is not.
  In addition, the Geneva Conventions is not respected. We have taken 
this away from the McCain-Warner compromise, and we have destroyed it 
because what we have done is given the President, not this President, 
any President, the ability to adjudge what the Geneva Conventions, how 
to interpret it, how to utilize it.
  This is a wrong way to ago. This should have more time. This is not a 
political opportunity. This is not a campaign speech. These are the 
lives of our soldiers.
  Mr. Speaker, at this time I will insert into the Record a letter from 
admirals and, as well, the 9/11 families opposing the military tribunal 
commission.

                                               September 12, 2006.
     Senator John Warner,
     Chairman, U.S. Senate Committee on Armed Services, Russell 
         Office Building, U.S. Senate, Washington, DC.
     Senator Carl Levin,
     Ranking Member, U.S. Senate Committee on Armed Services, 
         Russell Office Building, U.S. Senate, Washington, DC.
       We find it necessary yet again to communicate with you 
     about issues arising out of our policies concerning detainees 
     held at Guantanamo Bay. It would appear that each time the 
     U.S. Supreme Court speaks, efforts are taken to reverse by 
     legislation the decision of the Court. We refer, of course, 
     to the Supreme Court's Rasul and Hamdan decisions and to the 
     provision in the Administration's proposed Military 
     Comissions Act of 2006 that would strip the federal courts of 
     jurisdiction over even the pending habeas cases that have 
     been brought by the detainees at Guantanamo to challenge the 
     basis for their detention. We urge you to reject any such 
     habeas-stripping provision.
       As we have argued and agreed since 9/11, it is necessary 
     for Congress to enact legislation to create military 
     commissions that recognize both the basic notions of due 
     process and the need for specialized rules and procedures to 
     deal with the new paradigm we call the war on terror. This 
     effort must cover those already charged with violating the 
     laws of war and those newly transferred to Guantanamo Bay.
       But the military commissions we are now fashioning will 
     have no application to the vast majority of the detainees who 
     have never been charged, and most likely never will be 
     charged. These detainees will not go before any commissions, 
     but will continue to be held as ``enemy combatants.'' It is 
     critical to these detainees, who have not been charged with 
     any crime, that Congress not strip the courts of jurisdiction 
     to hear their pending habeas cases. The habeas cases are the 
     only avenue open for them to challenge the bases for their 
     detention--potentially life imprisonment--as ``enemy 
     combatants.''
       We strongly agree with those who have argued that we must 
     arrive at a position worthy of American values, i.e., that we 
     will not allow military commissions to rely on secret 
     evidence, hearsay, and evidence obtained by torture. But it 
     would be utterly inconsistent, and unworthy of American 
     values, to include language in the draft bill that would, at 
     the same time, strip the courts of habeas jurisdiction and 
     allow detainees to be held, potentially for life, based on 
     CSRT determinations that relied on just such evidence. The 
     effect would be to give greater protections to the likes of 
     Khalid Sheikh Mohammed than to the vast majority of the 
     Guantanamo detainees, who claim that they had nothing to do 
     with al Qaeda or the Taliban.
       We are on a course that should have been plotted and 
     navigated years ago, and we might be close to consensus. We 
     ask that, in the closing moments of your consideration of 
     this vital bill, you restore the faith of those who long have 
     been a voice for simple commitment to our longstanding basic 
     principles, to our integrity as a nation, and to the rule of 
     law. We urge you to oppose any further erosion of the proper 
     authority of our courts and to reject any provision that 
     would strip the courts of habeas jurisdiction.
       As Alexander Hamilton and James Madison emphasized in the 
     Federalist Papers, the writ of habeas corpus embodies 
     principles fundamental to our nation. It is the essence of 
     the rule of law, ensuring that neither king nor executive may 
     deprive a person of liberty without some independent review 
     to ensure that the detention has a reasonable basis in law 
     and fact. That right must be preserved. Fair hearings do not 
     jeopardize our security. They are what our country stands 
     for.
           Sincerely,
     John D. Hutson,
       Rear Admiral, JAGC, USN (Ret.).
     Donald J. Guter,
       Rear Admiral JAGC, USN (Ret.).
     David M. Brahms,
       Brigadier General, USMC (Ret.).
                                  ____


    9/11 Families Oppose Administration Efforts To Undermine Geneva 
                              Conventions

       Washington, D.C.--Today 9/11 family members sent a letter 
     to the Senate strongly opposing the Bush Administration's 
     proposals to undermine the Geneva Conventions, decriminalize 
     brutal interrogations and create military commissions lacking 
     fundamental due process guarantees.
       The letter challenges the Administration's claim that the 
     Military Commissions Act of 2006 is needed to make America 
     safer. ``There are those who would like to portray the 
     legislation as a choice between supporting the rights of 
     terrorists and keeping the United States safe. We reject this 
     argument. We believe that adopting policies against terrorism 
     which honor our values and our international commitments 
     makes us safer and is the smarter strategy.''
       The letter urges members of Congress to reject any 
     legislation which is at all ambiguous on the criminality of 
     brutal interrogation techniques and to oppose supporting 
     military trials that lack due process and judicial 
     accountability.
       The letter was signed by the parents of a FDNY fireman 
     killed in the World Trade Center collapse, the mother of a 
     NYPD policeman, along with relatives of victims from all four 
     of the attacks, including a passenger on Flight 93 that 
     crashed in Pennsylvania.
       The letter closes by urging members of Congress to ``reject 
     the Administration's ill-conceived proposals which will make 
     us both less safe and less proud as a nation.''
                                  ____

                                               September 14, 2006.
       Dear Senator: As members of families who lost loved ones in 
     the 9/11 attacks, we are writing to express our deep concern 
     over the provisions of the Administration's proposed Military 
     Commissions Act of 2006.
       There are those who would like to portray the legislation 
     as a choice between supporting the rights of terrorists and 
     keeping the United States safe. We reject this argument. We 
     believe that adopting policies against terrorism which honor 
     our values and our international commitments makes us safer 
     and is the smarter strategy.
       We do not believe that the United States should 
     decriminalize cruel and inhuman interrogations. The Geneva 
     Convention rules against brutal interrogations have long had 
     the strong support of the U.S. because they protect our 
     citizens. We should not be sending a message to the world 
     that we now believe that torture and cruel treatment is 
     sometimes acceptable. Moreover, the Administration's own 
     representatives at the Pentagon have strongly affirmed in 
     just the last few days that torture and abuse do not produce 
     reliable information. No legislation should have your support 
     if it is at all ambiguous on this issue.

[[Page 20739]]

       Nor do we believe that it is in the interest of the United 
     States to create a system of military courts that violate 
     basic notions of due process and lack truly independent 
     judicial oversight. Not only does this violate our most 
     cherished values and send the wrong message to the world, it 
     also runs the risk that the system will again be struck down 
     resulting in even more delay.
       We believe that we must have policies that reflect what is 
     best in the United States rather than compromising our values 
     out of fear. As John McCain has said, ``This is not about who 
     the terrorists are, this is about who we are.'' We urge you 
     to reject the Administration's ill-conceived proposals which 
     will make us both less safe and less proud as a nation.
           Sincerely,
         Marilynn Rosenthal, Nicholas H. Ruth, Adele Welty, Nissa 
           Youngren, Terry Greene, John LeBlanc, Andrea LeBlanc, 
           Ryan Amundson, Barry Amundson, Colleen Kelly, Terry Kay 
           Rockefeller, John William Harris.
         David Potorti, Donna Marsh O' Connor, Kjell Youngren, 
           Blake Allison, Tia Kminek, Jennifer Glick, Lorie Van 
           Auken, Mindy Kleinberg, Anthony Aversano, Paula 
           Shapiro, Valerie Lucznikowska, Lloyd Glick.
         James and Patricia Perry, Anne M. Mulderry, Marion 
           Kminek, Alissa Rosenberg-Torres, Kelly Campbell, Bruce 
           Wallace, John M. Leinung, Kristen Breitweiser, Patricia 
           Casazza, Michael A. Casazza, Loretta J. Filipov, Joan 
           Glick.

  Mr. CONYERS. Mr. Speaker, I yield 2 minutes to the gentleman from 
Maryland (Mr. Hoyer), our distinguished whip.
  Mr. HOYER. Mr. Speaker, I thank the gentleman from Michigan for 
yielding.
  I rise to talk about briefly coddling terrorists.
  There is no one in this body, no one in this country who wants to 
coddle terrorists. But let me remind my friends that Saddam Hussein was 
taken out of a hole and captured. And we did not torture him, and we 
have accorded him legal rights to hear the evidence, to address the 
court, and be represented by counsel. Why did we do that? Because we 
wanted to coddle Saddam Hussein? Did this administration want to coddle 
Saddam Hussein? Absolutely not. But because our values and the values 
of the international community suggested that.
  And the ``Butcher of Belgrade,'' Milosevic, who murdered tens of 
thousands of people and ethnically cleansed 2 million people, we 
accorded him legal rights because we wanted to coddle him? No. Because 
that was our value system.
  And, yes, even the butchers of Berlin, those who murdered millions of 
people in the Second World War, at Nuremburg were given their rights to 
see the evidence, to confront their accusers, and to have the proof 
adduced at trial. Why did we do that? Because we wanted to coddle the 
butchers of Berlin? Absolutely not. It was because those are our 
values, the values of the international community, and the values of 
our Founding Fathers.
  Let us not rush to judgment in this instance. Let us recognize and 
honor our values. That does not mean that we coddle the murderer, the 
rapist, or the terrorist. It means that we want a civilized society in 
which to live in this country and, yes, around the world.
  Mr. CONYERS. Mr. Speaker, I yield 15 seconds to my colleague from 
Oregon (Mr. Wu).
  Mr. WU. Mr. Speaker, we do a grave injustice today because this 
statute applies to American citizens as well as everybody else.
  Fred Korematsu was a U.S. citizen. He was picked up on a U.S. street. 
And we issued an apology years later.
  If we pass this bill today, some future Congress, long after we are 
out of office, long after we are dead, some future Congress will be 
issuing an apology.
  Mr. CONYERS. Mr. Speaker, I yield myself the balance of my time.
  Mr. Speaker, this has been an exceedingly interesting discussion here 
today. I only close by reminding the distinguished member of the 
Judiciary Committee from California that in the opening parts of this 
law, this bill, there is no word ``alien'' anywhere in it. It is 
referring to an unlawful enemy combatant. An unlawful enemy combatant 
could be an American.
  And so I oppose this legislation, finally, because it endangers our 
troops because we are lowering the standards set forth in the Geneva 
Conventions by allowing the President to unilaterally interpret the 
conventions and that can be operative against our own troops. Don't 
endanger our own troops.
  Mr. SENSENBRENNER. Mr. Speaker, I yield myself the balance of my 
time.
  Mr. Speaker, there is one issue that really has not come up in this 
debate, and that is the immunity that is given in this bill to the 
people who are interrogating the enemy combatants.
  We need to pass this bill so that interrogations can start up again 
because without the immunity, anybody who is hired by the United States 
Government to try to find out whom they are planning on blowing up next 
would be subject to a lawsuit that would be filed by some attorney that 
would claim that he was representing the public interest.
  This is a protection bill for the interrogators. It is something that 
is needed, and that is another reason why it ought to pass.
  Mr. McGOVERN. Mr. Speaker, I will not take up any more time speaking 
about why I oppose this bill. I spoke at length during the House 
debate, and nothing has changed over the past 48 hours to make me 
believe that undermining our history, values and constitutional 
commitment to human rights, civil rights, the rule of law, due process 
and judicial review is the right thing to do.
  Instead, I would like to submit for the Record the views of others in 
the face of this monumental mistake this Congress is making in 
submitting to the demands of an imperial White House.
  I ask unanimous consent to submit into the Record the following 
materials:
  1. Resolution Condemning Torture by the Conference of Major Superiors 
of Men;
  2. A September 22, 2006 letter from human rights organizations to the 
U.S. Senate regarding the Military Commissions Act of 2006;
  3. September 28, 2006 New York Times editorial, ``Rushing Off a 
Cliff;'' and
  4. ``Questions for the Interrogators,'' Commentary by Fareed Zakaria, 
September 25, 2006, Newsweek

                     Resolution Condemning Torture

       CMSM condemns torture in all its forms regardless of 
     putative justification, and encourages support and help for 
     victims of torture throughout the world, but especially in 
     areas under the control of the United States Government.
       Rationale: Jesus' death and resurrection revealed the 
     infinite value of each human being in God's eyes. [Cf. Mt 
     5:44-48; 10:29-31] Torture is a denial of that value. The 
     Catechism of the Catholic Church condemns torture as 
     ``contrary to respect for the person and for human dignity,'' 
     and Gaudium et Spes of the Second Vatican Council [#27] 
     characterizes as criminal ``all violations of the integrity 
     of the human person, such as mutilation, physical and mental 
     torture, undue psychological pressures,'' including them in a 
     list that also contains ``all offenses against life itself, 
     such as murder, genocide, abortion, euthanasia and willful 
     suicide.''
       Resolution: Given the universal condemnation of torture in 
     both International Law and religious documents, the 
     Conference of Major Superiors of Men resolves:
       To condemn unequivocally any use of torture by agents of 
     any government for any reason;
       To encourage its constituencies to use their resources of 
     education, preaching and advocacy to eliminate use of torture 
     as contrary to both natural law and human dignity, and in 
     fundamental opposition to God's salvific love for humanity:
       To join with others to work in advocacy for the abolition 
     of torture, and to offer help and support to victims of 
     torture.
       The Justice and Peace office will be responsible for 
     implementation.
       Additional Facts/Related Circumstances: Background: ``The 
     torturer has become like the pirate and slave trader before 
     him hostis humani generis, an enemy of all mankind.'' So 
     proclaimed the US Court of Appeals for the Second Circuit in 
     1980 [Filartiga v. Pena-Irala, 630 F.2d 876 (2nd Cir.(N.Y.) 
     Jun 30, 1980)]. In his 1958 Chicago address to the Radio and 
     Television News Directors Association, Edward R. Murrow said, 
     ``Not every story has two sides.''
       The United Nations Convention against Torture and Other 
     Cruel, Inhuman or Degrading Treatment or Punishment [1984] 
     defines torture as follows:
       For the purposes of this Convention, the term ``torture'' 
     means any act by which severe pain or suffering, whether 
     physical or mental, is intentionally inflicted on a person 
     for such purposes as obtaining from him or a third person 
     information or a confession, punishing him for an act he or a 
     third person has committed or is suspected of having 
     committed, or intimidating or coercing him or a third person, 
     or for any reason based on discrimination of any kind, when 
     such pain

[[Page 20740]]

     or suffering is inflicted by or at the instigation of or with 
     the consent or acquiescence of a public official or other 
     person acting in an official capacity. It does not include 
     pain or suffering arising only from, inherent in or 
     incidental to lawful sanctions. [A listing of other 
     international documents that condemn torture is available at 
     www.apt.ch/un/Torture%20Definition.doc.]
       Recent actions brought to light about the involvement of 
     the U.S. military and other branches of the government in the 
     application of torture to prisoners demand a faith-based 
     response. The USCCB has spoken as follows on the issue:
       The United States has a long history of leadership and 
     strong support for human rights around the world. 
     Ratifications of the Convention on Civil and Political Rights 
     and the Convention Against Torture embody our nation's 
     commitment to establishing standards of conduct and 
     prohibiting torture and other acts of inhumane treatment of 
     persons in U.S. custody. Tragically, our nation's record has 
     been marred by reported instances of abusive treatment of 
     enemy combatants held in military prisons in Iraq, 
     Afghanistan and Guantanamo Bay, Cuba. [The complete document 
     is available at www.usccb.org/sdwp/international/
senateletterretorture100405.pdf.]
       The CMSM Executive Committee issued a statement in May of 
     2004 that included the following:
       The Executive Committee of the Conference of Major 
     Superiors of Men is greatly disturbed by the revelations of 
     torture and abuse by U.S. military personnel. We have 
     consistently called for U.S. troops to abide by international 
     standards and laws that govern the treatment of detainees and 
     have questioned the lack of access that international 
     monitoring organizations such as the Red Cross, the Red 
     Crescent, Amnesty International have had at detention centers 
     in Iraq, Afghanistan, and Guantanamo Bay. Reports by 
     independent organizations and military personnel, combined 
     with the photographs and the admission by Administration 
     officials of the abuses indicate that the U.S. military 
     personnel and others contracted by the U.S. to work in the 
     detention centers must be monitored to protect the rights and 
     dignity of detainees.
       As people of faith and as leaders of the Catholic 
     congregations of the nearly 23,000 brothers and priests in 
     the United States we believe that we must address this issue. 
     Each human being is created with God-given dignity and each 
     life is precious. This dignity must always be upheld and 
     protected but especially so when an individual is being 
     detained and his or her rights are already limited. They 
     deserved to be treated with dignity and protected from 
     violence and humiliation. As Christians we are deeply 
     troubled that much of the humiliation and abuse violates the 
     beliefs and practices of Islam. As U.S. citizens we are 
     ashamed that those who represent our nation are perpetrating 
     these abuses. We believe that as a nation we stand for the 
     protection of human rights and uphold the dignity of all 
     peoples regardless of their ethnic or religious background 
     and we hold our national and military leaders responsible for 
     the conditions that made these abuses not only possible, but 
     who refused to acknowledge them even after they knew of the 
     abuses.
       George Hunsinger of the National Religious Campaign against 
     Torture adapted these words from Dr. Martin Luther King, Jr., 
     delivered at Riverside Church in New York in 1967:
       A time comes when silence is betrayal. [People] do not 
     easily assume the task of opposing their government's policy, 
     especially in time of war. We must speak with all the 
     humility that is appropriate to our limited vision, but we 
     must speak. For we are deeply in need of a new way beyond the 
     darkness so close around us. We are called upon to speak for 
     the weak, for the voiceless, for the victims of our nation, 
     for those it calls ``enemy,'' for no document from human 
     hands can make these humans any less our brothers and 
     sisters.
       Resources: A powerful article by Gary Haugen titled 
     ``Silence on Suffering: Where are the voices from the 
     Christian community on cruel and degrading treatment of 
     detainees?'' appeared in Christianity Today in October of 
     2005.
       Other useful links: The National Religious Campaign against 
     Torture; Torture Abolition and Survivors Network 
     International; Amnesty International; and Center for the 
     Victims of Torture.
       Origin of Proposal: CMSM Justice and Peace Committee.
       Budget: none.
       Contact Person: T. Michael McNulty, SJ, Justice and Peace 
     Director.
                                  ____

                                               September 22, 2006.
     Hon. John Warner,
     Hon. John McCain,
     Hon. Lindsey Graham,
     U.S. Senate,
     Washington, DC.
       Dear Senators Warner, McCain and Graham: We write to 
     express our grave concerns over the reported agreement 
     reached with the White House on the text of the Military 
     Commissions Act of 2006.
       While the agreement rejects the Administration's proposal 
     to define and narrow the scope of US obligations under Common 
     Article Three of the Geneva Conventions, its language 
     concerning the War Crimes Act contains potentially dangerous 
     ambiguities. These ambiguities create serious risks for 
     American servicemembers as well as detainees in US custody. 
     We believe that a good faith interpretation of U.S. law, 
     including the Detainee Treatment Act, and U.S. international 
     obligations make it absolutely clear that practices such as 
     waterboarding, cold cell, prolonged standing, sleep 
     deprivation, threats and assaults on prisoners are illegal. 
     These and similar abusive techniques manifestly cause serious 
     mental and physical suffering and constitute grave breaches 
     of Common Article 3. Nonetheless, for several years there 
     have been persistent reports that such techniques have been 
     used on detainees. Moreover, troubling legal justifications 
     for them have been devised and provided to U.S. 
     interrogators. Some of those spurious legal justifications, 
     such as the Bybee Memorandum, have now been abandoned; but 
     there are continuing reports that other legal justifications 
     have been provided for conduct we consider to be indisputably 
     illegal under both U.S. and international law.
       Against this background of repeated legal contortions used 
     to justify and permit torture and abuse--some abandoned, some 
     apparently still in effect--it is absolutely essential that 
     the Congress be clear that these kinds of abusive 
     interrogation techniques are illegal and covered by the War 
     Crimes Act. We urge you to leave no shred of doubt on these 
     crucial issues by naming specific techniques which amount to 
     per se violations of the War Crimes Act or, at a minimum, 
     creating a legislative record that these techniques are 
     prohibited.
       We also oppose the provisions in the bill that strip 
     individuals who are detained by the United States of the 
     ability to challenge the factual and legal basis of their 
     detention. Habeas corpus is necessary to avoid wrongful 
     deprivations of liberty and to ensure that executive 
     detentions are not grounded in torture or other abuse. 
     Likewise, we are deeply concerned about the provisions that 
     permit the use of evidence obtained through coercion.
       This letter is not intended to offer a comprehensive 
     catalogue of the provisions in the proposed compromise 
     legislation which are of great concern. We appreciate the 
     efforts you have made to insure that abusive interrogations 
     cannot take place and to provide fair judicial procedures for 
     detainees. However, we do not believe that the proposed 
     compromise can be said to have satisfied those important 
     goals and feel strongly that these issues must be resolved.
           Sincerely,
         Center for Victims of Torture; Brennan Center for Justice 
           at NYU Law School; Center for American Progress Action 
           Fund; Physicians for Human Rights; Washington Office on 
           Latin America; Open Society Policy Center; Amnesty 
           International USA; Human Rights Watch; Center for 
           National Security Studies; Human Rights First; American 
           Civil Liberties Union; Robert F. Kennedy Memorial 
           Center for Human Rights; Center for Human Rights and 
           Global Justice, NYU School of Law.
                                  ____
                                  

               [From the New York Times, Sept. 28, 2006]

                          Rushing Off a Cliff

       Here's what happens when this irresponsible Congress 
     railroads a profoundly important bill to serve the mindless 
     politics of a midterm election: The Bush administration uses 
     Republicans' fear of losing their majority to push through 
     ghastly ideas about antiterrorism that will make American 
     troops less safe and do lasting damage to our 217-year-old 
     nation of laws--while actually doing nothing to protect the 
     nation from terrorists. Democrats betray their principles to 
     avoid last-minute attack ads. Our democracy is the big loser.
       Republicans say Congress must act right now to create 
     procedures for charging and trying terrorists--because the 
     men accused of plotting the 9/11 attacks are available for 
     trial. That's pure propaganda. Those men could have been 
     tried and convicted long ago, but President Bush chose not 
     to. He held them in illegal detention, had them questioned in 
     ways that will make real trials very hard, and invented a 
     transparently illegal system of kangaroo courts to convict 
     them.
       It was only after the Supreme Court issued the inevitable 
     ruling striking down Mr. Bush's shadow penal system that he 
     adopted his tone of urgency. It serves a cynical goal: 
     Republican strategists think they can win this fall, not by 
     passing a good law but by forcing Democrats to vote against a 
     bad one so they could be made to look soft on terrorism.
       Last week, the White House and three Republican senators 
     announced a terrible deal on this legislation that gave Mr. 
     Bush most of what he wanted, including a blanket waiver for 
     crimes Americans may have committed in the service of his 
     antiterrorism policies. Then Vice President Dick Cheney and 
     his willing lawmakers rewrote the rest of the measure so that 
     it would give Mr. Bush the power to jail pretty much anyone 
     he wants for as long as he wants without

[[Page 20741]]

     charging them, to unilaterally reinterpret the Geneva 
     Conventions, to authorize what normal people consider 
     torture, and to deny justice to hundreds of men captured in 
     error.
       These are some of the bill's biggest flaws:
       Enemy Combatants: A dangerously broad definition of 
     ``illegal enemy combatant'' in the bill could subject legal 
     residents of the United States, as well as foreign citizens 
     living in their own countries, to summary arrest and 
     indefinite detention with no hope of appeal. The president 
     could give the power to apply this label to anyone he wanted.
       The Geneva Conventions: 'The bill would repudiate a half-
     century of international precedent by allowing Mr. Bush to 
     decide on his own what abusive interrogation methods he 
     considered permissible. And his decision could stay secret--
     there's no requirement that this list be published.
       Habeas Corpus: Detainees in U.S. military prisons would 
     lose the basic right to challenge their imprisonment. These 
     cases do not clog the courts, nor coddle terrorists. They 
     simply give wrongly imprisoned people a chance to prove their 
     innocence.
       Judicial Review: The courts would have no power to review 
     any aspect of this new system, except verdicts by military 
     tribunals. The bill would limit appeals and bar legal actions 
     based on the Geneva Conventions, directly or indirectly. All 
     Mr. Bush would have to do to lock anyone up forever is to 
     declare him an illegal combatant and not have a trial.
       Coerced Evidence: Coerced evidence would be permissible if 
     a judge considered it reliable--already a contradiction in 
     terms--and relevant. Coercion is defined in a way that 
     exempts anything done before the passage of the 2005 Detainee 
     Treatment Act, and anything else Mr. Bush chooses.
       Secret Evidence: American standards of justice prohibit 
     evidence and testimony that is kept secret from the 
     defendant, whether the accused is a corporate executive or a 
     mass murderer. But the bill as redrafted by Mr. Cheney seems 
     to weaken protections against such evidence.
       Offenses: The definition of torture is unacceptably narrow, 
     a virtual reprise of the deeply cynical memos the 
     administration produced after 9/11. Rape and sexual assault 
     are defined in a retrograde way that covers only forced or 
     coerced activity, and not other forms of nonconsensual sex. 
     The bill would effectively eliminate the idea of rape as 
     torture.
       There is not enough time to fix these bills, especially 
     since the few Republicans who call themselves moderates have 
     been whipped into line, and the Democratic leadership in the 
     Senate seems to have misplaced its spine. If there was ever a 
     moment for a filibuster, this was it.
       We don't blame the Democrats for being frightened. The 
     Republicans have made it clear that they'll use any 
     opportunity to brand anyone who votes against this bill as a 
     terrorist enabler. But Americans of the future won't remember 
     the pragmatic arguments for caving in to the administration.
       They'll know that in 2006, Congress passed a tyrannical law 
     that will be ranked with the low points in American 
     democracy, our generation's version of the Alien and Sedition 
     Acts.
                                  ____


                    [From Newsweek, Sept. 25, 2006]

                    Questions for the Interrogators

                          (By Fareed Zakaria]

       A fierce debate over military tribunals has erupted in 
     Washington. This is great news. The American constitutional 
     system is finally working. The idea that the war on terror 
     should be fought unilaterally by the executive branch--a 
     theory the Bush administration promulgated for its entire 
     first term--has died. The secret prisons have come out of the 
     dark. Guantanamo will have to be closed or transformed.
       The president and the legislative branch are negotiating a 
     new system to determine the guilt or innocence of terrorism 
     suspects, and it will have to pass muster with the courts. It 
     is heartening as well that some of the key senators 
     challenging the president's position are senior Republicans. 
     Principle is triumphing over partisanship. Let's hope the 
     debate will end with the United States' embracing a position 
     that will allow America to reclaim the moral high ground.
       The administration's policy has undergone a sea change. The 
     executive branch has abandoned the idea that ``enemy 
     combatants''--that is, anyone so defined by the White House 
     or Defense Department--may be locked up indefinitely without 
     ever being charged, that secret prisons can be maintained, 
     that congressional input or oversight is unnecessary and that 
     international laws and treaties are irrelevant. The Geneva 
     Conventions, in particular, were dismissed during the 
     administration's first term by the then White House counsel 
     Alberto Gonzales for their ``quaint'' protections of 
     prisoners and ``obsolete'' limitations on interrogations. 
     Donald Rumsfeld publicly announced that the Conventions no 
     longer applied. The Bush administration's basic legal 
     argument, formulated by officials like the Justice 
     Department's John Yoo, was that this was a new kind of war, 
     that the executive branch needed complete freedom and 
     flexibility, with no checks or balances.
       ``There has been a paradigm shift on this whole issue,' a 
     senior administration official told me last week. ``The whole 
     legal framework that underpinned the administration's 
     approach in the first term is gone. John Yoo's arguments are 
     simply no longer applicable. You may disagree with where we 
     draw the lines, but we're now using concepts, principles and 
     approaches that are familiar, within the American legal 
     tradition and that of other civilized nations.''
       The administration was forced to do much of this by the 
     Supreme Court's recent Hamdan decision and by the bold 
     opposition of senators like John McCain and Lindsey Graham. 
     But several officials, wishing to remain anonymous because of 
     the sensitivity of the matter, said Secretary of State 
     Condoleezza Rice and national security adviser Stephen Hadley 
     had been urging movement in this direction for some time. 
     ``We concluded that this whole structure of prisoners, 
     interrogations, trials and tribunals had to be placed on a 
     sustainable basis,'' said one official. ``That meant Congress 
     had to be involved and the president had to explain the 
     programs and procedures publicly.''
       The crucial issue, on which former Secretary of State Colin 
     Powell and other distinguished military figures have stood up 
     to Bush, is the treatment of prisoners under the Geneva 
     Conventions. Powell explained to me his deep concerns about 
     safeguarding American troops if ``we start monkeying around 
     with the common understanding of the Conventions.'' The 
     administration claims that it merely wants to provide 
     specific guidelines, but the real aim appears to be to let 
     CIA employees engage in ``rough'' interrogations without fear 
     of legal sanctions.
       Powell and the senators argue that the guidelines are 
     better left as they are--with a kind of calculated ambiguity 
     that deters U.S. interrogators from testing the limits. 
     ``Clarifying' our treaty obligations will be seen as 
     `withdrawing' from them,'' warns Senator Graham, a former 
     staff judge advocate in the Air National Guard. He's right. 
     No other nation has sought to narrow the Geneva Conventions' 
     scope by ``clarifying'' them. Does the United States want to 
     be the first? Why not retain the status quo and then consult 
     with other countries that are also grappling with terror 
     suspects and arrive at a genuinely ``common'' clarification 
     of the Conventions? If we ``clarify'' the Conventions to 
     allow, say, waterboarding and other ``rough'' procedures, 
     what happens to a CIA operative who is captured in a foreign 
     country? Can that country ``clarify'' the Conventions and 
     torture him? If it does, would the United States have any 
     basis to condemn it and take action under international law?
       Powell made another argument to me. ``Part of the war on 
     terror is an ideological and political struggle,'' he said. 
     ``Our moral posture is one of our best weapons. We're not 
     doing so well on the public-diplomacy front. This would be 
     the wrong signal to send the world.'' The administration 
     seems blind to this political reality. After Guantanamo, Abu 
     Ghraib, Haditha and more, America desperately needs a symbol 
     that showcases its basic decency. Quibbling with the Geneva 
     Conventions is the wrong signal, by the wrong administration, 
     at the wrong time.

  Mr. UDALL of Colorado. Mr. Speaker, the Senate-passed bill before us 
today is identical to H.R. 6166. I could not support that bill when the 
House considered it earlier this week, and nothing that has happened 
since then has caused me to change my view that it should not be 
enacted. So, I must continue to oppose it.
  As I said earlier, I agree that Congress should establish clear 
statutory authority for detaining unlawful enemy combatants and using 
military tribunals to try them. In fact, I thought this should have 
been done long age because I took seriously the warnings of legal 
experts who said the system established by President Bush's unilateral 
Executive Order lacked departed too far from America's fundamental 
legal traditions to be immune from serious legal challenges.
  That is why for several years I have cosponsored bills to replace 
that Executive Order with a sound statute that would allow prosecutions 
to proceed without the same vulnerability to challenge.
  Unfortunately, until recently neither the president nor the 
Republican leadership thought there was a need for Congress to act--the 
president preferred to insist on unilateral assertions of executive 
authority, and the leadership was content with an indolent abdication 
of Congressional authority and responsibility.
  Then, earlier this year, the Supreme Court put an end to that 
approach with its decision in the case of Hamdan v. Rumsfeld, which 
struck down the system established by the Executive Order--just what 
many of us had seen coming, and which we had sought to avoid through 
legislation.
  So, we are voting on this bill only because the Supreme Court has 
forced the Administration to do what it should have done much sooner--
come to Congress for legislation. And the voting is occurring this 
week, under rushed procedures that do not permit consideration of

[[Page 20742]]

any changes, because, above all, the Republicans have decided they need 
to claim a legislative victory when they go home to campaign, to help 
take voters' minds off the Administration's missteps and their own 
failures.
  But I think it is less important to get the job done before the 
election than to do it right. And, regrettably, I remain convinced that 
this bill fails that test.
  I remain concerned about the bill's specific provisions. But just as 
serious are my concerns about what the bill does not say. In 
particular, I am concerned about the lack of any provisions to prevent 
indefinite detentions of American citizens who have never left the 
United States.
  I cannot support any legislation intended to give the president--any 
president, of any party authority to throw an American citizen into 
prison without what the Supreme Court has described as ``a meaningful 
opportunity to contest the factual basis for that detention before a 
neutral decisionmaker.''
  As I said when the House first debated this legislation, I prefer to 
err on the side of caution when I must vote on a measure that is not 
more clear on this point. And since that earlier debate, my concern--
and my unwillingness to vote for this legislation--has been heightened 
by analyses of experts such as Professor Bruce Akerman of the Yale Law 
School.
  In an analysis published after the earlier vote here in the House--
which I am attaching for the benefit of our colleagues--Professor 
Akerman says: ``The legislation . . . authorizes the president to seize 
American citizens as enemy combatants, even if they have never left the 
United States. And once thrown into military prison, they cannot expect 
a trial by their peers or any other of the normal protections of the 
Bill of Rights. . . . This grants the president enormous power over 
citizens and legal residents. They can be designated as enemy 
combatants if they have contributed money to a Middle Eastern charity, 
and they can be held indefinitely in a military prison. . . . What is 
worse, if the federal courts support the president's initial detention 
decision, ordinary Americans would be required to defend themselves 
before a military tribunal without the constitutional guarantees 
provided in criminal trials.''
  And, as Professor Akerman notes: ``We are not dealing with 
hypothetical abuses. The president has already subjected a citizen to 
military confinement. Consider the case of Jose Padilla. A few months 
after 9/11, he was seized by the Bush administration as an ``enemy 
combatant'' upon his arrival at Chicago's O'Hare International Airport. 
He was wearing civilian clothes and had no weapons. Despite his 
American citizenship, he was held for more than three years in a 
military brig, without any chance to challenge his detention before a 
military or civilian tribunal. After a federal appellate court upheld 
the president's extraordinary action, the Supreme Court refused to hear 
the case, handing the administration's lawyers a terrible precedent. . 
. .
  ``But the bill also reinforces the presidential claims, made in the 
Padilla case, that the commander in chief has the right to designate a 
U.S. citizen on American soil as an enemy combatant and subject him to 
military justice. Congress is poised to authorize this presidential 
overreaching. Under existing constitutional doctrine, this show of 
explicit congressional support would be a key factor that the Supreme 
Court would consider in assessing the limits of presidential 
authority.''
  I do not have the legal expertise to say that Professor Akerman is 
completely right in this analysis. But I cannot in good conscience vote 
for this bill on the mere hope that he is wrong.
  And, as I said when the House first considered this bill, it is clear 
that several of its provisions raise enough legal questions that 
military lawyers say there is a good chance the Supreme Court will rule 
it unconstitutional.
  They may or may not be right about that, but their views deserve to 
be taken seriously--not only because we in Congress have sworn to 
uphold the Constitution but also because if our goal truly is to avoid 
unnecessary delays in bringing terrorists to justice, we need to take 
care to craft legislation that can and will operate soon, not only 
after prolonged legal challenges.
  Finally, I remain concerned that the bill gives the president the 
authority to ``interpret the meaning and application'' of U.S. 
obligations under the Geneva Conventions. Instead of clearly banning 
abuse and torture, the bill leaves in question whether or not we are 
authorizing the Executive Branch to carry out some of the very things 
the Geneva Conventions seek to ban.
  I cannot forget or discount the words of RADM Bruce MacDonald, the 
Navy's Judge Advocate General, who told the Armed Services Committee 
``I go back to the reciprocity issue that we raised earlier, that I 
would be very concerned about other nations looking in on the United 
States and making a determination that, if it's good enough for the 
United States, it's good enough for us, and perhaps doing a lot of 
damage and harm internationally if one of our service men or women were 
taken and held as a detainee.''
  I share that concern, and could not in good conscience support 
legislation that could put our men and women in uniform at risk.
  Mr. Speaker, as I said earlier, establishing a system of military 
tribunals to bring to trial some of the worst terrorists in the world 
shouldn't be a partisan matter. It also should not be handled in a 
rush, without adequate care to get it right. Unfortunately, that has 
been the process used to develop this legislation and the result is a 
measure that I think has too many flaws to deserve enactment as it 
stands.
  So, as I said earlier, I cannot support it.

              [From the Los Angeles Times, Sept. 28, 2006]

                         The White House Warden

                          (By Bruce Ackerman)

       Buried in the complex Senate compromise on detainee 
     treatment is a real shocker, reaching far beyond the legal 
     struggles about foreign terrorist suspects in the Guantanamo 
     Bay fortress. The compromise legislation, which is racing 
     toward the White House, authorizes the president to seize 
     American citizens as enemy combatants, even if they have 
     never left the United States. And once thrown into military 
     prison, they cannot expect a trial by their peers or any 
     other of the normal protections of the Bill of Rights.
       This dangerous compromise not only authorizes the president 
     to seize and hold terrorists who have fought against our 
     troops ``during an armed conflict,'' it also allows him to 
     seize anybody who has ``purposefully and materially supported 
     hostilities against the United States.'' This grants the 
     president enormous power over citizens and legal residents. 
     They can be designated as enemy combatants if they have 
     contributed money to a Middle Eastern charity, and they can 
     be held indefinitely in a military prison.
       Not to worry, say the bill's defenders. The president can't 
     detain somebody who has given money innocently, just those 
     who contributed to terrorists on purpose.
       But other provisions of the bill call even this limitation 
     into question. What is worse, if the federal courts support 
     the president's initial detention decision, ordinary 
     Americans would be required to defend themselves before a 
     military tribunal without the constitutional guarantees 
     provided in criminal trials.
       Legal residents who aren't citizens are treated even more 
     harshly. The bill entirely cuts off their access to federal 
     habeas corpus, leaving them at the mercy of the president's 
     suspicions.
       We are not dealing with hypothetical abuses. The president 
     has already subjected a citizen to military confinement. 
     Consider the case of Jose Padilla. A few months after 9/11, 
     he was seized by the Bush administration as an ``enemy 
     combatant'' upon his arrival at Chicago's O'Hare 
     International Airport. He was wearing civilian clothes and 
     had no weapons. Despite his American citizenship, he was held 
     for more than three years in a military brig, without any 
     chance to challenge his detention before a military or 
     civilian tribunal. After a federal appellate court upheld the 
     president's extraordinary action, the Supreme Court refused 
     to hear the case, handing the administration's lawyers a 
     terrible precedent.
       The new bill, if passed, would further entrench 
     presidential power. At the very least, it would encourage the 
     Supreme Court to draw an invidious distinction between 
     citizens and legal residents. There are tens of millions of 
     legal immigrants living among us, and the bill encourages the 
     justices to uphold mass detentions without the semblance of 
     judicial review.
       But the bill also reinforces the presidential claims, made 
     in the Padilla case, that the commander in chief has the 
     right to designate a U.S. citizen on American soil as an 
     enemy combatant and subject him to military justice. Congress 
     is poised to authorize this presidential overreaching. Under 
     existing constitutional doctrine, this show of explicit 
     congressional support would be a key factor that the Supreme 
     Court would consider in assessing the limits of presidential 
     authority.
       This is no time to play politics with our fundamental 
     freedoms. Even without this massive congressional expansion 
     of the class of enemy combatants, it is by no means clear 
     that the present Supreme Court will protect the Bill of 
     Rights. The Korematsu case--upholding the military detention 
     of tens of thousands of Japanese Americans during World War 
     II--has never been explicitly overruled. It will be tough for 
     the high court to condemn this notorious decision, especially 
     if passions are inflamed by another terrorist incident. But 
     congressional support of presidential power will make it much 
     easier to extend the Korematsu decision to future mass 
     seizures.
       Though it may not feel that way, we are living at a moment 
     of relative calm. It would be tragic if the Republican 
     leadership rammed through an election-year measure

[[Page 20743]]

     that would haunt all of us on the morning after the next 
     terrorist attack.
  Mrs. CHRISTENSEN. Mr. Speaker, I rise in opposition to S. 3930, the 
Military Commission Act of 2006 because it is too broad, overly 
inclusive and potentially unconstitutional. While I also vividly 
remember the horrors of the 9/11 terrorist attacks, I believe that 
Congress should carefully and constitutionally craft a bill which 
effectively punishes all terrorists and potential terrorists while at 
the same time maintaining the safety and security of our citizens from 
future terrorist attacks.
  The definition of an ``unlawful combatant'' in Section 948(a.) of 
this bill is indicative of its over-inclusiveness. It creates legal 
loopholes and in my view, leaves even U.S. Citizens vulnerable to being 
classified as unlawful combatants. This definition does not exclude nor 
does it seek to exclude U.S. Citizens from being indefinitely detained. 
The President or one of his designees can simply determine that a 
fellow U.S. Citizen is an ``unlawful enemy combatant'' and this would 
suffice as sufficient evidence to detain this citizen indefinitely 
without any access to his family, an attorney or any form of judicial 
review.
  Furthermore, the term ``purposefully and materially supported 
hostilities'' is overly broad and would lead to many innocent acts 
being transformed into terrorist activities.
  In an article, Aziz Huq astutely demonstrates the broadness of the 
term by showing how a fictional character that owns a bodega and 
allowed Lebanese immigrants to use its services to send money to ``West 
Beqaa'', an area within the Hezbollah controlled area of Lebanon 
protectorate is found to have ``purposefully and materially supported 
hostilities. This scenario is not very far-fetched, this piece of 
legislation has the potential to impact the very foundation of civil 
liberties and fundamental freedoms on which this country is built. It 
will impact the American Citizen's freedom of speech, freedom of 
association and the list could go on.
  The bill also further undermines U.S. credibility in the eyes of the 
international community by granting the President the authority to 
interpret Art. III of the Geneva Convention an international treaty to 
which the U.S. is a signatory. This language sets a bad precedence in 
the international community and only frustrates the goals of 
established international laws, norms and customs.
  If the U.S. President is allowed to reinterpret and apply an 
international treaty, what would stop other nations from doing the 
same? Additionally, as noted in his letter to Senator McCain, former 
U.S. Secretary of State Colin Powell, posited that allowing the 
President to interpret the Geneva Convention would expose U.S. soldiers 
to more dangers. Colin Powell emphatically opposed this provision.
  S. 3930 also violates separation of powers and the constitutional 
protection this provides, by stripping the federal court of its habeas 
review. The independence of the judiciary is one of the fundamental 
principles on which this democracy is built. Under this bill, the 
normal appeals process would not be available to the detained 
``unlawful enemy combatant.'' Instead the detainee who wishes to appeal 
an adverse decision has to appeal to a newly established ``Court of 
Military Commission Review''.
  Terrorists must be brought to justice and we must act accordingly to 
secure our country and our citizens. However, these same goals can be 
achieved in a constitutional manner. I urge my colleagues to oppose 
this unworthy bill.
  Mr. MICHAUD. Mr. Speaker, the final language for the bill was brought 
to the floor quickly and without thorough review by the House. I 
believe that it is important to have a system to try accused terrorists 
for their war crimes in a quick and fair way. In my original review of 
the bill, I believed that it took steps to protect fundamental human 
rights, prevent torture and provide for a fair legal process.
  As I have heard from more and more legal experts and from my 
constituents, it is clear that this bill does not create a system that 
meets our high American standards for a fair trial and human rights.
  Make no mistake; I believe that convicted terrorists must be punished 
for their war crimes. But it must be done in such a way that the 
American people are confident that our values are upheld. I do not 
believe that this bill makes this clear to the American people or to 
the international community that looks to us as a place of human rights 
and fairness.
  Some people may question me for changing my vote. I believe that 
elected officials must have the strength to recognize new information 
and to take it into account to make the right decision. I wish 
President Bush would do the same thing with our policies in Iraq.
  Mr. SENSENBRENNER. Mr. Speaker, I yield back the balance of my time
  The SPEAKER pro tempore. All time for debate has expired.
  Pursuant to House Resolution 1054, the Senate bill is considered read 
and the previous question is ordered.
  The question is on the third reading of the Senate bill.
  The Senate bill was ordered to be read a third time, and was read the 
third time.
  The SPEAKER pro tempore. The question is on the passage of the Senate 
bill.
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. SENSENBRENNER. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this question will be postponed.

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