Congressional Record: September 22, 2006 (Senate)
Page S10017-S10033
STATEMENTS ON INTRODUCED BILLS AND JOINT RESOLUTIONS
By Mr. McCONNELL (for himself and Mr. Frist):
S. 3929. A bill to authorize military commissions to bring terrorists
to justice, to strengthen and modernize terrorist surveillance
capabilities, and for other purposes; read the first time.
Mr. McCONNELL. Mr. President, I ask unanimous consent that the text
of the bill be printed in the Record.
There being no objection, the text of the bill was ordered to be
printed in the Record, as follows:
S. 3929
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress assembled,
TITLE I--MILITARY COMMISSIONS
SECTION 101. SHORT TITLE.
This title may be cited as the ``Military Commissions Act
of 2006''.
SEC. 102. FINDINGS.
Congress makes the following findings:
(1) The Constitution of the United States grants to
Congress the power ``To define and punish . . . Offenses
against the Law of Nations'', as well as the power ``To
declare War . . . To raise and support Armies . . . [and] To
provide and maintain a Navy''.
(2) The military commission is the traditional tribunal for
the trial of persons engaged in hostilities for violations of
the law of war.
(3) Congress has, in the past, both authorized the use of
military commission by statute and recognized the existence
and authority of military commissions.
(4) Military commissions have been convened both by the
President and by military commanders in the field to try
offenses against the law of war.
(5) It is in the national interest for Congress to exercise
its authority under the Constitution to enact legislation
authorizing and regulating the use of military commissions to
try and punish violations of the law of war.
SEC. 103. AUTHORIZATION FOR MILITARY COMMISSIONS.
(a) In General.--The President is authorized to establish
military commissions for the trial of alien unlawful enemy
combatants engaged in hostilities against the United States
for violations of the law of war and other offenses
specifically made triable by military commission as provided
in chapter 47 of title 10, United States Code, and chapter
47A of title 10, United States Code (as enacted by this Act).
(b) Construction.--The authority in subsection (a) may not
be construed to alter or limit the authority of the President
under the Constitution and laws of the United States to
establish military commissions for areas declared to be under
martial law or in occupied territories should circumstances
so require.
(c) Scope of Punishment Authority.--A military commission
established pursuant to subsection (a) shall have authority
to impose upon any person found guilty under a proceeding
under chapter 47A of title 10, United States Code (as so
enacted), a sentence that is appropriate for the offense or
offenses for which there is a finding of guilt, including a
sentence of death if authorized under such chapter,
imprisonment for life or a term of years, payment of a fine
or restitution, or such other lawful punishment or condition
of punishment as the military commission shall direct.
(d) Execution of Punishment.--The Secretary of Defense is
authorized to carry out a sentence of punishment imposed by a
military commission established pursuant to subsection (a) in
accordance with such procedures as the Secretary may
prescribe.
(e) Annual Report on Trials by Military Commissions.--
(1) Annual report required.--Not later than December 31
each year, the Secretary of Defense shall submit to the
Committees on Armed Services of the Senate and the House of
Representatives a report on any trials conducted by military
commissions established pursuant to subsection (a) during
such year.
(2) Form.--Each report under this subsection shall be
submitted in unclassified form, but may include a classified
annex.
SEC. 104. MILITARY COMMISSIONS.
(a) Military Commissions.--
(1) In general.--Subtitle A of title 10, United States
Code, is amended by inserting after chapter 47 the following
new chapter:
``CHAPTER 47A--MILITARY COMMISSIONS
``SUBCHAPTER......................................................Sec.
``I. General Provisions..........................................948a.
``II. Composition of Military Commissions........................948h.
``III. Pre-Trial Procedure.......................................948q.
``IV. Trial Procedure............................................949a.
``V. Sentences...................................................949s.
``VI. Post-Trial Procedure and Review of Military Commissions....950a.
``VII. Punitive Matters..........................................950aa.
``SUBCHAPTER I--GENERAL PROVISIONS
``Sec.
``948a. Definitions.
``948b. Military commissions generally.
``948c. Persons subject to military commissions.
``948d. Jurisdiction of military commissions.
``Sec. 948a. Definitions
``In this chapter:
``(1) Alien.--The term `alien' means an individual who is
not a citizen of the United States.
``(2) Classified information.--The term `classified
information' means the following:
``(A) Any information or material that has been determined
by the United States Government pursuant to statute,
Executive order, or regulation to require protection against
unauthorized disclosure for reasons of national security.
``(B) Any restricted data, as that term is defined in
section 11 y. of the Atomic Energy Act of 1954 (42 U.S.C.
2014(y)).
``(3) Lawful enemy combatant.--The term `lawful enemy
combatant' means an individual who is--
``(A) a member of the regular forces of a State party
engaged in hostilities against the United States;
``(B) a member of a militia, volunteer corps, or organized
resistance movement belonging to a State party engaged in
such hostilities, which are under responsible command, wear a
fixed distinctive sign recognizable at a distance, carry
their arms openly, and abide by the law of war; or
``(C) a member of a regular armed force who professes
allegiance to a government engaged in such hostilities, but
not recognized by the United States.
``(4) Unlawful enemy combatant.--The term `unlawful enemy
combatant' means an individual engaged in hostilities against
the United States who is not a lawful enemy combatant.
``Sec. 948b. Military commissions generally
``(a) Purpose.--This chapter establishes procedures
governing the use of military commissions to try alien
unlawful enemy combatants engaged in hostilities against the
United States for violations of the law of war and other
offenses triable by military commission.
``(b) Construction of Provisions.--The procedures for
military commissions set forth in this chapter are based upon
the procedures for trial by general courts-martial under
chapter 47 of this title (the Uniform Code of Military
Justice). Chapter 47 of this title does not, by its terms,
apply to trial by military commission except as specifically
provided therein or in this chapter, and many of the
provisions of chapter 47 of this title are by their terms
inapplicable to military commissions. The judicial
construction and application of chapter 47 of this title is
therefore not binding on military commissions established
under this chapter.
``(c) Inapplicability of Certain Provisions.--(1) The
following provisions of this title shall not apply to trial
by military commission under this chapter:
``(A) Section 810 (article 10 of the Uniform Code of
Military Justice), relating to speedy trial, including any
rule of courts-martial relating to speedy trial.
``(B) Sections 831(a), (b), and (d) (articles 31(a), (b),
and (d) of the Uniform Code of Military Justice), relating to
compulsory self-incrimination.
``(C) Section 832 (article 32 of the Uniform Code of
Military Justice), relating to pretrial investigation.
``(2) Other provisions of chapter 47 of this title shall
apply to trial by military commission under this chapter only
to the extent provided by the terms of such provisions or by
this chapter.
``(d) Status of Military Commissions Under Common Article
3.--A military commission established under this chapter is a
regularly constituted court, affording all the necessary
`judicial guarantees which are recognized as indispensable by
civilized peoples' for purposes of common Article 3 of the
Geneva Conventions.
``(e) Treatment of Rulings and Precedents.--The findings,
holdings, interpretations, and other precedents of military
commissions under this chapter may not be introduced or
considered in any hearing, trial, or other proceeding of a
court-martial convened under chapter 47 of this title. The
findings, holdings, interpretations, and other
[[Page S10018]]
precedents of military commissions under this chapter may not
form the basis of any holding, decision, or other
determination of a court-martial convened under that chapter.
``(f) Geneva Conventions Not Establishing Source of
Rights.--No alien enemy unlawful combatant subject to trial
by military commission under this chapter may invoke the
Geneva Conventions as a source of rights at his trial by
military commission.
``Sec. 948c. Persons subject to military commissions
``Any alien unlawful enemy combatant engaged in hostilities
or having supported hostilities against the United States is
subject to trial by military commission as set forth in this
chapter.
``Sec. 948d. Jurisdiction of military commissions
``(a) Jurisdiction.--A military commission under this
chapter shall have jurisdiction to try any offense made
punishable by this chapter, sections 904 and 906 of this
title (articles 104 and 106 of the Uniform Code of Military
Justice), or the law of war when committed by an alien
unlawful enemy combatant before, on, or after September 11,
2001.
``(b) Lawful Enemy Combatants.--Military commissions under
this chapter shall not have jurisdiction over lawful enemy
combatants. Lawful enemy combatants who violate the law of
war are subject to chapter 47 of this title. Courts-martial
established under that chapter shall have jurisdiction to try
a lawful enemy combatant for any offense made punishable
under this chapter.
``(c) Punishments.--A miliary commission under this chapter
may, under such limitations as the President may prescribe,
adjudge any punishment not forbidden by this chapter,
including the penalty of death when authorized under this
chapter, chapter 47 of this title, or the law of war.
``SUBCHAPTER II--COMPOSITION OF MILITARY COMMISSIONS
``Sec.
``948h. Who may convene military commissions.
``948i. Who may serve on military commissions.
``948j. Military judge of a military commission.
``948k. Detail of trial counsel and defense counsel.
``948l. Detail or employment of reporters and interpreters.
``948m. Number of members; excuse of members; absent and additional
members.
``Sec. 948h. Who may convene military commissions
``Military commissions under this chapter may be convened
by the Secretary of Defense or by any officer or official of
the United States designated by the Secretary for that
purpose.
``Sec. 948i. Who may serve on military commissions
``(a) In General.--Any commissioned officer of the armed
forces on active duty is eligible to serve on a military
commission under this chapter, including commissioned
officers of the reserve components of the armed forces on
active duty, commissioned officers of the National Guard on
active duty in Federal service, or retired commissioned
officers recalled to active duty.
``(b) Detail of Members.--When convening a military
commission under this chapter, the convening authority shall
detail as members thereof such members of the armed forces
eligible under subsection (a) who, as in the opinion of the
convening authority, are best qualified for the duty by
reason of age, education, training, experience, length of
service, and judicial temperament. No member of an armed
force is eligible to serve as a member of a military
commission when such member is the accuser or a witness for
the prosecution or has acted as an investigator or counsel in
the same case.
``(c) Excuse of Members.--Before a military commission
under this chapter is assembled for the trial of a case, the
convening authority may excuse a member from participating in
the case.
``Sec. 948j. Military judge of a military commission
``(a) Detail of Military Judge.--A military judge shall be
detailed to each military commission under this chapter. The
Secretary of Defense shall prescribe regulations providing
for the manner in which military judges are so detailed to
military commissions. The military judge shall preside over
each military commission to which he has been detailed.
``(b) Eligibility.--A military judge shall be a
commissioned officer of the armed forces who is a member of
the bar of a Federal court, or a member of the bar of the
highest court of a State, and who is certified to be
qualified for duty under section 826 of this title (article
26 of the Uniform Code of Military Justice) as a military
judge in general courts-martial by the Judge Advocate General
of the armed force of which such military judge is a member.
``(c) Ineligibility of Certain Individuals.--No person is
eligible to act as military judge in a case of a military
commission under this chapter if he is the accuser or a
witness or has acted as investigator or a counsel in the same
case.
``(d) Consultation With Members; Ineligibility to Vote.--A
military judge detailed to a military commission under this
chapter may not consult with the members except in the
presence of the accused (except as otherwise provided in
section 949d of this title), trial counsel, and defense
counsel, nor may he vote with the members.
``(e) Other Duties.--A commissioned officer who is
certified to be qualified for duty as a military judge of a
military commission under this chapter may perform such other
duties as are assigned to him by or with the approval of the
Judge Advocate General of the armed force of which such
officer is a member or the designee of such Judge Advocate
General.
``(f) Prohibition on Evaluation of Fitness by Convening
Authority.--The convening authority of a military commission
under this chapter shall not prepare or review any report
concerning the effectiveness, fitness, or efficiency of a
military judge detailed to the military commission which
relates to his performance of duty as a military judge on the
military commission.
``Sec. 948k. Detail of trial counsel and defense counsel
``(a) Detail of Counsel Generally.--(1) Trial counsel and
military defense counsel shall be detailed for each military
commission under this chapter.
``(2) Assistant trial counsel and assistant and associate
defense counsel may be detailed for a military commission
under this chapter.
``(3) Military defense counsel for a military commission
under this chapter shall be detailed as soon as practicable
after the swearing of charges.
``(4) The Secretary of Defense shall prescribe regulations
providing for the manner in which trial counsel and military
defense counsel are detailed for military commissions under
this chapter and for the persons who are authorized to detail
such counsel for such military commissions.
``(b) Trial Counsel.--Subject to subsection (e), trial
counsel detailed for a military commission under this chapter
must be--
``(1) a judge advocate (as that term is defined in section
801 of this title (article 1 of the Uniform Code of Military
Justice)) who is--
``(A) a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a
State; and
``(B) certified as competent to perform duties as trial
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member; or
``(2) a civilian who is--
``(A) a member of the bar of a Federal court or of the
highest court of a State; and
``(B) otherwise qualified to practice before the military
commission pursuant to regulations prescribed by the
Secretary of Defense.
``(c) Military Defense Counsel.--Subject to subsection (e),
military defense counsel detailed for a military commission
under this chapter must be a judge advocate (as so defined)
who is--
``(1) a graduate of an accredited law school or is a member
of the bar of a Federal court or of the highest court of a
State; and
``(2) certified as competent to perform duties as defense
counsel before general courts-martial by the Judge Advocate
General of the armed force of which he is a member.
``(d) Chief Prosecutor; Chief Defense Counsel.--(1) The
Chief Prosecutor in a military commission under this chapter
shall meet the requirements set forth in subsection (b)(1).
``(2) The Chief Defense Counsel in a military commission
under this chapter shall meet the requirements set forth in
subsection (c)(1).
``(e) Ineligibility of Certain Individuals.--No person who
has acted as an investigator, military judge, or member of a
military commission under this chapter in any case may act
later as trial counsel or military defense counsel in the
same case. No person who has acted for the prosecution before
a military commission under this chapter may act later in the
same case for the defense, nor may any person who has acted
for the defense before a military commission under this
chapter act later in the same case for the prosecution.
``Sec. 948l. Detail or employment of reporters and
interpreters
``(a) Court Reporters.--Under such regulations as the
Secretary of Defense may prescribe, the convening authority
of a military commission under this chapter shall detail to
or employ for the military commission qualified court
reporters, who shall prepare a verbatim record of the
proceedings of and testimony taken before the military
commission.
``(b) Interpreters.--Under such regulations as the
Secretary of Defense may prescribe, the convening authority
of a military commission under this chapter may detail to or
employ for the military commission interpreters who shall
interpret for the military commission, and, as necessary, for
trial counsel and defense counsel for the military
commission, and for the accused.
``(c) Transcript; Record.--The transcript of a military
commission under this chapter shall be under the control of
the convening authority of the military commission, who shall
also be responsible for preparing the record of the
proceedings of the military commission.
``Sec. 948m. Number of members; excuse of members; absent and
additional members
``(a) Number of Members.--(1) A military commission under
this chapter shall, except as provided in paragraph (2), have
at least five members.
[[Page S10019]]
``(2) In a case in which the accused before a military
commission under this chapter may be sentenced to a penalty
of death, the military commission shall have the number of
members prescribed by section 949m(c) of this title.
``(b) Excuse of Members.--No member of a military
commission under this chapter may be absent or excused after
the military commission has been assembled for the trial of a
case unless excused--
``(1) as a result of challenge;
``(2) by the military judge for physical disability or
other good cause; or
``(3) by order of the convening authority for good cause.
``(c) Absent and Additional Members.--Whenever a military
commission under this chapter is reduced below the number of
members required by subsection (a), the trial may not proceed
unless the convening authority details new members sufficient
to provide not less than such number. The trial may proceed
with the new members present after the recorded evidence
previously introduced before the members has been read to the
military commission in the presence of the military judge,
the accused (except as provided in section 949d of this
title), and counsel for both sides.
``SUBCHAPTER III--PRE-TRIAL PROCEDURE
``Sec.
``948q. Charges and specifications.
``948r. Compulsory self-incrimination prohibited; statements obtained
by torture or other methods of coercion.
``948s. Service of charges.
``Sec. 948q. Charges and specifications
``(a) Charges and Specifications.--Charges and
specifications against an accused in a military commission
under this chapter shall be signed by a person subject to
chapter 47 of this title under oath before a commissioned
officer of the armed forces authorized to administer oaths
and shall state--
``(1) that the signer has personal knowledge of, or reason
to believe, the matters set forth therein; and
``(2) that they are true in fact to the best of his
knowledge and belief.
``(b) Notice to Accused.--Upon the swearing of the charges
and specifications in accordance with subsection (a), the
accused shall be informed of the charges and specifications
against him as soon as practicable.
``Sec. 948r. Compulsory self-incrimination prohibited;
statements obtained by torture or other methods of coercion
``(a) In General.--No person shall be required to testify
against himself at a proceeding of a military commission
under this chapter.
``(b) Statements Obtained by Torture.--A statement obtained
by use of torture shall not be admissible in a military
commission under this chapter, except against a person
accused of torture as evidence the statement was made.
``(c) Statements Obtained Before Enactment of Detainee
Treatment Act of 2005.--A statement obtained before December
30, 2005 (the date of the enactment of the Detainee Treatment
Act of 2005), in which the degree of coercion is disputed may
be admitted only if the military judge finds that--
``(1) the totality of the circumstances renders it reliable
and possessing sufficient probative value; and
``(2) the interests of justice would best be served by
admission of the statement into evidence.
``(d) Statements Obtained After Enactment of Detainee
Treatment Act of 2005.--A statement obtained on or after
December 30, 2005 (the date of the enactment of the Detainee
Treatment Act of 2005), in which the degree of coercion is
disputed may be admitted only if the military judge finds
that--
``(1) the totality of the circumstances renders it reliable
and possessing sufficient probative value;
``(2) the interests of justice would best be served by
admission of the statement into evidence; and
``(3) the interrogation methods used to obtain the
statement do not violate the cruel, unusual, or inhumane
treatment or punishment prohibited by the Fifth, Eighth, and
14th Amendments to the United States Constitution.
``Sec. 948s. Service of charges
``The trial counsel assigned to a case before a military
commission under this chapter shall cause to be served upon
the accused and military defense counsel a copy of the
charges upon which trial is to be had in English and, if
appropriate, in another language that the accused
understands, sufficiently in advance of trial to prepare a
defense.
``SUBCHAPTER IV--TRIAL PROCEDURE
``Sec.
``949a. Rules.
``949b. Unlawfully influencing action of military commission.
``949c. Duties of trial counsel and defense counsel.
``949d. Sessions.
``949e. Continuances.
``949f. Challenges.
``949g. Oaths.
``949h. Former jeopardy.
``949i. Pleas of the accused.
``949j. Opportunity to obtain witnesses and other evidence.
``949k. Defense of lack of mental responsibility.
``949l. Voting and rulings.
``949m. Number of votes required.
``949n. Military commission to announce action.
``949o. Record of trial.
``Sec. 949a. Rules
``(a) Procedures and Rules of Evidence.--Pretrial, trial,
and post-trial procedures, including elements and modes of
proof, for cases triable by military commission under this
chapter may be prescribed by the Secretary of Defense. Such
procedures may not be contrary to or inconsistent with this
chapter. Except as otherwise provided in this chapter or
chapter 47 of this title, the procedures and rules of
evidence applicable in trials by general courts-martial of
the United States shall apply in trials by military
commission under this chapter.
``(b) Exceptions.--(1) The Secretary of Defense, in
consultation with the Attorney General, may make such
exceptions in the applicability in trials by military
commission under this chapter from the procedures and rules
of evidence otherwise applicable in general courts-martial as
may be required by the unique circumstances of the conduct of
military and intelligence operations during hostilities or by
other practical need.
``(2) Notwithstanding any exceptions authorized by
paragraph (1), the procedures and rules of evidence in trials
by military commission under this chapter shall include, at a
minimum, the following rights:
``(A) To examine and respond to all evidence considered by
the military commission on the issue of guilt or innocence
and for sentencing.
``(B) To be present at all sessions of the military
commission (other than those for deliberations or voting),
except when excluded under section 949d of this title.
``(C) To the assistance of counsel.
``(D) To self-representation, if the accused knowingly and
competently waives the assistance of counsel, subject to the
provisions of paragraph (4).
``(E) To the suppression of evidence that is not reliable
or probative.
``(F) To the suppression of evidence the probative value of
which is substantially outweighed by--
``(i) the danger of unfair prejudice, confusion of the
issues, or misleading the members; or
``(ii) considerations of undue delay, waste of time, or
needless presentation of cumulative evidence.
``(3) In making exceptions in the applicability in trials
by military commission under this chapter from the procedures
and rules otherwise applicable in general courts-martial, the
Secretary of Defense may provide the following:
``(A) Evidence seized outside the United States shall not
be excluded from trial by military commission on the grounds
that the evidence was not seized pursuant to a search warrant
or authorization.
``(B) A statement of the accused that is otherwise
admissible shall not be excluded from trial by military
commission on grounds of alleged coercion or compulsory self-
incrimination so long as the evidence complies with the
provisions of section 948r of this title.
``(C) Evidence shall be admitted as authentic so long as--
``(i) the military judge of the military commission
determines that there is sufficient evidence that the
evidence is what it is claimed to be; and
``(ii) the military judge instructs the members that they
may consider any issue as to authentication or identification
of evidence in determining the weight, if any, to be given to
the evidence.
``(D)(i) Except as provided in clause (ii), hearsay
evidence not otherwise admissible under the rules of evidence
applicable in trial by general courts-martial may be admitted
in a trial by military commission if the proponent of the
evidence makes known to the adverse party, sufficiently in
advance to provide the adverse party with a fair opportunity
to meet the evidence, the intention of the proponent to offer
the evidence, and the particulars of the evidence (including
information on the general circumstances under which the
evidence was obtained). The disclosure of evidence under this
clause is subject to the requirements and limitations
applicable to the disclosure of classified information in
section 949j(b) of this title.
``(ii) Hearsay evidence not otherwise admissible under the
rules of evidence applicable in trial by general courts-
martial shall not be admitted in a trial by military
commission if the party opposing the admission of the
evidence demonstrates that the evidence is unreliable or
lacking in probative value.
``(4)(A) The accused in a military commission under this
chapter who exercises the right to self-representation under
paragraph (2)(D) shall conform his deportment and the conduct
of the defense to the rules of evidence, procedure, and
decorum applicable to trials by military commission.
``(B) Failure of the accused to conform to the rules
described in subparagraph (A) may result in a partial or
total revocation by the military judge of the right of self-
representation under paragraph (2)(D). In such case, the
detailed defense counsel of the accused or an appropriately
authorized civilian counsel shall perform the functions
necessary for the defense.
[[Page S10020]]
``(c) Delegation of Authority to Prescribe Regulations.--
The Secretary of Defense may delegate the authority of the
Secretary to prescribe regulations under this chapter.
``Sec. 949b. Unlawfully influencing action of military
commission
``(a) In General.--(1) No authority convening a military
commission under this chapter may censure, reprimand, or
admonish the military commission, or any member, military
judge, or counsel thereof, with respect to the findings or
sentence adjudged by the military commission, or with respect
to any other exercises of its or their functions in the
conduct of the proceedings.
``(2) No person may attempt to coerce or, by any
unauthorized means, influence--
``(A) the action of a military commission under this
chapter, or any member thereof, in reaching the findings or
sentence in any case;
``(B) the action of any convening, approving, or reviewing
authority with respect to their judicial acts; or
``(C) the exercise of professional judgment by trial
counsel or defense counsel.
``(3) The provisions of this subsection shall not apply
with respect to--
``(A) general instructional or informational courses in
military justice if such courses are designed solely for the
purpose of instructing members of a command in the
substantive and procedural aspects of military commissions;
or
``(B) statements and instructions given in open proceedings
by a military judge or counsel.
``(b) Prohibition on Consideration of Actions on Commission
in Evaluation of Fitness.--In the preparation of an
effectiveness, fitness, or efficiency report or any other
report or document used in whole or in part for the purpose
of determining whether a commissioned officer of the armed
forces is qualified to be advanced in grade, or in
determining the assignment or transfer of any such officer or
whether any such officer should be retained on active duty,
no person may--
``(1) consider or evaluate the performance of duty of any
member of a military commission under this chapter; or
``(2) give a less favorable rating or evaluation to any
commissioned officer because of the zeal with which such
officer, in acting as counsel, represented any accused before
a military commission under this chapter.
``Sec. 949c. Duties of trial counsel and defense counsel
``(a) Trial Counsel.--The trial counsel of a military
commission under this chapter shall prosecute in the name of
the United States.
``(b) Defense Counsel.--(1) The accused shall be
represented in his defense before a military commission under
this chapter as provided in this subsection.
``(2) The accused shall be represented by military counsel
detailed under section 948k of this title.
``(3) The accused may be represented by civilian counsel if
retained by the accused, provided that such civilian
counsel--
``(A) is a United States citizen;
``(B) is admitted to the practice of law in a State,
district, or possession of the United States, or before a
Federal court;
``(C) has not been the subject of any sanction of
disciplinary action by any court, bar, or other competent
governmental authority for relevant misconduct;
``(D) has been determined to be eligible for access to
information classified at the level Secret or higher; and
``(E) has signed a written agreement to comply with all
applicable regulations or instructions for counsel, including
any rules of court for conduct during the proceedings.
``(4) If the accused is represented by civilian counsel,
military counsel detailed shall act as associate counsel.
``(5) The accused is not entitled to be represented by more
than one military counsel. However, the person authorized
under regulations prescribed under section 948k of this title
to detail counsel, in such person's sole discretion, may
detail additional military counsel to represent the accused.
``(6) Defense counsel may cross-examine each witness for
the prosecution who testifies before a military commission
under this chapter.
``Sec. 949d. Sessions
``(a) Sessions Without Presence of Members.--(1) At any
time after the service of charges which have been referred
for trial by military commission under this chapter, the
military judge may call the military commission into session
without the presence of the members for the purpose of--
``(A) hearing and determining motions raising defenses or
objections which are capable of determination without trial
of the issues raised by a plea of not guilty;
``(B) hearing and ruling upon any matter which may be ruled
upon by the military judge under this chapter, whether or not
the matter is appropriate for later consideration or decision
by the members;
``(C) if permitted by regulations prescribed by the
Secretary of Defense, receiving the pleas of the accused; and
``(D) performing any other procedural function which may be
performed by the military judge under this chapter or under
rules prescribed pursuant to section 949a of this title and
which does not require the presence of the members.
``(2) Except as provided in subsections (b), (c), and (d),
any proceedings under paragraph (1) shall be conducted in the
presence of the accused, defense counsel, and trial counsel,
and shall be made part of the record.
``(b) Deliberation or Vote of Members.--When the members of
a military commission under this chapter deliberate or vote,
only the members may be present.
``(c) Closure of Proceedings.--(1) The military judge may
close to the public all or part of the proceedings of a
military commission under this chapter.
``(2) The military judge may close to the public all or a
portion of the proceedings under paragraph (1) only upon
making a specific finding that such closure is necessary to--
``(A) protect information the disclosure of which could
reasonably be expected to cause damage to the national
security, including intelligence or law enforcement sources,
methods, or activities; or
``(B) ensure the physical safety of individuals.
``(3) A finding under paragraph (2) may be based upon a
presentation, including a presentation ex parte or in camera,
by either trial counsel or defense counsel.
``(d) Exclusion of Accused From Certain Proceedings.--The
military judge may exclude the accused from any portion of a
proceeding upon a determination that, after being warned by
the military judge, the accused persists in conduct that
justifies exclusion from the courtroom--
``(1) to ensure the physical safety of individuals; or
``(2) to prevent disruption of the proceedings by the
accused.
``(e) Protection of Classified Information.--
``(1) National security privilege.--(A) Classified
information shall be protected and is privileged from
disclosure if disclosure would be detrimental to the national
security. This rule applies to all stages of the proceedings
of military commissions under this chapter.
``(B) The privilege referred to in subparagraph (A) may be
claimed by the head of the executive or military department
or government agency concerned based on a finding by the head
of that department or agency that--
``(i) the information is properly classified; and
``(ii) disclosure would be detrimental to the national
security.
``(C) A person who may claim the privilege referred to in
subparagraph (A) may authorize a representative, witness, or
trial counsel to claim the privilege and make the finding
described in subparagraph (B) on behalf of such person. The
authority of the representative, witness, or trial counsel to
do so is presumed in the absence of evidence to the contrary.
``(2) Introduction of classified information.--
``(A) Alternatives to disclosure.--To protect classified
information from disclosure, the military judge, upon motion
of trial counsel, shall authorize, to the extent
practicable--
``(i) the deletion of specified items of classified
information from documents to be introduced as evidence
before the military commission;
``(ii) the substitution of a portion or summary of the
information for such classified documents; or
``(iii) the substitution of a statement of relevant facts
that the classified information would tend to prove.
``(B) Protection of sources, methods, or activities.--The
military judge, upon motion of trial counsel, shall permit
trial counsel to introduce otherwise admissible evidence
before the military commission, while protecting from
disclosure the sources, methods, or activities by which the
United States acquired the evidence if the military judge
finds that (i) the sources, methods, or activities by which
the United States acquired the evidence are classified, and
(ii) the evidence is reliable. The military judge may require
trial counsel to present to the military commission and the
defense, to the extent practicable and consistent with
national security, an unclassified summary of the sources,
methods, or activities by which the United States acquired
the evidence.
``(C) Assertion of national security privilege at trial.--
During the examination of any witness, trial counsel may
object to any question, line of inquiry, or motion to admit
evidence that would require the disclosure of classified
information. Following such an objection, the military judge
shall take suitable action to safeguard such classified
information. Such action may include the review of trial
counsel's claim of privilege by the military judge in camera
and on an ex parte basis, and the delay of proceedings to
permit trial counsel to consult with the department or agency
concerned as to whether the national security privilege
should be asserted.
``(3) Consideration of privilege and related materials.--A
claim of privilege under this subsection, and any materials
submitted in support thereof, shall, upon request of the
Government, be considered by the military judge in camera and
shall not be disclosed to the accused.
``(4) Additional regulations.--The Secretary of Defense may
prescribe additional regulations, consistent with this
subsection, for the use and protection of classified
information during proceedings of military commissions under
this chapter. A report on any regulations so prescribed, or
modified, shall
[[Page S10021]]
be submitted to the Committees on Armed Services of the
Senate and the House of Representatives not later than 60
days before the date on which such regulations or
modifications, as the case may be, go into effect.
``Sec. 949e. Continuances
``The military judge in a military commission under this
chapter may, for reasonable cause, grant a continuance to any
party for such time, and as often, as may appear to be just.
``Sec. 949f. Challenges
``(a) Challenges Authorized.--The military judge and
members of a military commission under this chapter may be
challenged by the accused or trial counsel for cause stated
to the military commission. The military judge shall
determine the relevance and validity of challenges for cause,
and may not receive a challenge to more than one person at a
time. Challenges by trial counsel shall ordinarily be
presented and decided before those by the accused are
offered.
``(b) Peremptory Challenges.--The accused and trial counsel
are each entitled to one peremptory challenge, but the
military judge may not be challenged except for cause.
``(c) Challenges Against Additional Members.--Whenever
additional members are detailed to a military commission
under this chapter, and after any challenges for cause
against such additional members are presented and decided,
the accused and trial counsel are each entitled to one
peremptory challenge against members not previously subject
to peremptory challenge.
``Sec. 949g. Oaths
``(a) In General.--(1) Before performing their respective
duties in a military commission under this chapter, military
judges, members, trial counsel, defense counsel, reporters,
and interpreters shall take an oath to perform their duties
faithfully.
``(2) The form of the oath required by paragraph (1), the
time and place of the taking thereof, the manner of recording
thereof, and whether the oath shall be taken for all cases in
which duties are to be performed or for a particular case,
shall be as provided in regulations prescribed by the
Secretary of Defense. The regulations may provide that--
``(A) an oath to perform faithfully duties as a military
judge, trial counsel, or defense counsel may be taken at any
time by any judge advocate or other person certified to be
qualified or competent for the duty; and
``(B) if such an oath is taken, such oath need not again be
taken at the time the judge advocate or other person is
detailed to that duty.
``(b) Witnesses.--Each witness before a military commission
under this chapter shall be examined on oath.
``(c) Oath Defined.--In this section, the term `oath'
includes an affirmation.
``Sec. 949h. Former jeopardy
``(a) In General.--No person may, without his consent, be
tried by a military commission under this chapter a second
time for the same offense.
``(b) Scope of Trial.--No proceeding in which the accused
has been found guilty by military commission under this
chapter upon any charge or specification is a trial in the
sense of this section until the finding of guilty has become
final after review of the case has been fully completed.
``Sec. 949i. Pleas of the accused
``(a) Plea of Not Guilty.--If an accused in a military
commission under this chapter after a plea of guilty sets up
matter inconsistent with the plea, or if it appears that the
accused has entered the plea of guilty through lack of
understanding of its meaning and effect, or if the accused
fails or refuses to plead, a plea of not guilty shall be
entered in the record, and the military commission shall
proceed as though the accused had pleaded not guilty.
``(b) Finding of Guilt After Guilty Plea.--With respect to
any charge or specification to which a plea of guilty has
been made by the accused in a military commission under this
chapter and accepted by the military judge, a finding of
guilty of the charge or specification may be entered
immediately without a vote. The finding shall constitute the
finding of the military commission unless the plea of guilty
is withdrawn prior to announcement of the sentence, in which
event the proceedings shall continue as though the accused
had pleaded not guilty.
``Sec. 949j. Opportunity to obtain witnesses and other
evidence
``(a) In General.--(1) Defense counsel in a military
commission under this chapter shall have a reasonable
opportunity to obtain witnesses and other evidence as
provided in regulations prescribed by the Secretary of
Defense.
``(2) Process issued in military commissions under this
chapter to compel witnesses to appear and testify and to
compel the production of other evidence--
``(A) shall be similar to that which courts of the United
States having criminal jurisdiction may lawfully issue; and
``(B) shall run to any place where the United States shall
have jurisdiction thereof.
``(b) Protection of Classified Information.--(1) With
respect to the discovery obligations of trial counsel under
this section, the military judge, upon motion of trial
counsel, shall authorize, to the extent practicable--
``(A) the deletion of specified items of classified
information from documents to be made available to the
accused;
``(B) the substitution of a portion or summary of the
information for such classified documents; or
``(C) the substitution of a statement admitting relevant
facts that the classified information would tend prove.
``(2) The military judge, upon motion of trial counsel,
shall authorize trial counsel, in the course of complying
with discovery obligations under this section, to protect
from disclosure the sources, methods, or activities by which
the United States acquired evidence if the military judge
finds that the sources, methods, or activities by which the
United States acquired such evidence are classified. The
military judge may require trial counsel to provide, to the
extent practicable, an unclassified summary of the sources,
methods, or activities by which the United States acquired
such evidence.
``(c) Exculpatory Evidence.--(1) As soon as practicable,
trial counsel shall disclose to the defense the existence of
any evidence known to trial counsel that reasonably tends to
exculpate the accused. Where exculpatory evidence is
classified, the accused shall be provided with an adequate
substitute in accordance with the procedures under subsection
(b).
``(2) In this subsection, the term `evidence known to trial
counsel', in the case of exculpatory evidence, means
exculpatory evidence that the prosecution would be required
to disclose in a trial by courts-martial under chapter 47 of
this title.
``Sec. 949k. Defense of lack of mental responsibility
``(a) Affirmative Defense.--It is an affirmative defense in
a trial by military commission under this chapter that, at
the time of the commission of the acts constituting the
offense, the accused, as a result of a severe mental disease
or defect, was unable to appreciate the nature and quality or
the wrongfulness of the acts. Mental disease or defect does
not otherwise constitute a defense.
``(b) Burden of Proof.--The accused in a military
commission under this chapter has the burden of proving the
defense of lack of mental responsibility by clear and
convincing evidence.
``(c) Findings Following Assertion of Defense.--Whenever
lack of mental responsibility of the accused with respect to
an offense is properly at issue in a military commission
under this chapter, the military judge shall instruct the
members as to the defense of lack of mental responsibility
under this section and shall charge the members to find the
accused--
``(1) guilty;
``(2) not guilty; or
``(3) subject to subsection (d), not guilty by reason of
lack of mental responsibility.
``(d) Majority Vote Required for Finding.--The accused
shall be found not guilty by reason of lack of mental
responsibility under subsection (c)(3) only if a majority of
the members present at the time the vote is taken determines
that the defense of lack of mental responsibility has been
established.
``Sec. 949l. Voting and rulings
``(a) Vote by Secret Written Ballot.--Voting by members of
a military commission under this chapter on the findings and
on the sentence shall be by secret written ballot.
``(b) Rulings.--(1) The military judge in a military
commission under this chapter shall rule upon all questions
of law, including the admissibility of evidence and all
interlocutory questions arising during the proceedings.
``(2) Any ruling made by the military judge upon a question
of law or an interlocutory question (other than the factual
issue of mental responsibility of the accused) is conclusive
and constitutes the ruling of the military commission.
However, a military judge may change his ruling at any time
during the trial.
``(c) Instructions Prior to Vote.--Before a vote is taken
of the findings of a military commission under this chapter,
the military judge shall, in the presence of the accused and
counsel, instruct the members as to the elements of the
offense and charge the members--
``(1) that the accused must be presumed to be innocent
until his guilt is established by legal and competent
evidence beyond a reasonable doubt;
``(2) that in the case being considered, if there is a
reasonable doubt as to the guilt of the accused, the doubt
must be resolved in favor of the accused and he must be
acquitted;
``(3) that, if there is reasonable doubt as to the degree
of guilt, the finding must be in a lower degree as to which
there is no reasonable doubt; and
``(4) that the burden of proof to establish the guilt of
the accused beyond a reasonable doubt is upon the United
States.
``Sec. 949m. Number of votes required
``(a) Conviction.--No person may be convicted by a military
commission under this chapter of any offense, except as
provided in section 949i(b) of this title or by concurrence
of two-thirds of the members present at the time the vote is
taken.
``(b) Sentences.--(1) Except as provided in paragraphs (2)
and (3), sentences shall be determined by a military
commission by the concurrence of two-thirds of the members
present at the time the vote is taken.
``(2) No person may be sentenced to death by a military
commission, except insofar as--
[[Page S10022]]
``(A) the penalty of death has been expressly authorized
under this chapter, chapter 47 of this title, or the law of
war for an offense of which the accused has been found
guilty;
``(B) trial counsel expressly sought the penalty of death
by filing an appropriate notice in advance of trial;
``(C) the accused was convicted of the offense by the
concurrence of all the members present at the time the vote
is taken; and
``(D) all members present at the time the vote was taken
concurred in the sentence of death.
``(3) No person may be sentenced to life imprisonment, or
to confinement for more than 10 years, by a military
commission under this chapter except by the concurrence of
three-fourths of the members present at the time the vote is
taken.
``(c) Number of Members Required for Penalty of Death.--(1)
Except as provided in paragraph (2), in a case in which the
penalty of death is sought, the number of members of the
military commission under this chapter shall be not less than
12 members.
``(2) In any case described in paragraph (1) in which 12
members are not reasonably available for a military
commission because of physical conditions or military
exigencies, the convening authority shall specify a lesser
number of members for the military commission (but not fewer
than 5 members), and the military commission may be
assembled, and the trial held, with not less than the number
of members so specified. In any such case, the convening
authority shall make a detailed written statement, to be
appended to the record, stating why a greater number of
members were not reasonably available.
``Sec. 949n. Military commission to announce action
``A military commission under this chapter shall announce
its findings and sentence to the parties as soon as
determined.
``Sec. 949o. Record of trial
``(a) Record; Authentication.--Each military commission
under this chapter shall keep a separate, verbatim, record of
the proceedings in each case brought before it, and the
record shall be authenticated by the signature of the
military judge. If the record cannot be authenticated by the
military judge by reason of his death, disability, or
absence, it shall be authenticated by the signature of the
trial counsel or by a member if the trial counsel is unable
to authenticate it by reason of his death, disability, or
absence. Where appropriate, and as provided in regulations
prescribed by the Secretary of Defense, the record of a
military commission under this chapter may contain a
classified annex.
``(b) Complete Record Required.--A complete record of the
proceedings and testimony shall be prepared in every military
commission under this chapter.
``(c) Provision of Copy to Accused.--A copy of the record
of the proceedings of the military commission under this
chapter shall be given the accused as soon as it is
authenticated. If the record contains classified information,
or a classified annex, the accused shall receive a redacted
version of the record consistent with the requirements of
section 949d(e) of this title. Defense counsel shall have
access to the unredacted record, as provided in regulations
prescribed by the Secretary of Defense.
``SUBCHAPTER V--SENTENCES
``Sec.
``949s. Cruel or unusual punishments prohibited.
``949t. Maximum limits.
``949u. Execution of confinement.
``Sec. 949s. Cruel or unusual punishments prohibited
``Punishment by flogging, or by branding, marking, or
tattooing on the body, or any other cruel or unusual
punishment, may not be adjudged by a military commission
under this chapter or inflicted under this chapter upon any
person subject to this chapter. The use of irons, single or
double, except for the purpose of safe custody, is prohibited
under this chapter.
``Sec. 949t. Maximum limits
``The punishment which a military commission under this
chapter may direct for an offense may not exceed such limits
as the President or Secretary of Defense may prescribe for
that offense.
``Sec. 949u. Execution of confinement
``(a) In General.--Under such regulations as the Secretary
of Defense may prescribe, a sentence of confinement adjudged
by a military commission under this chapter may be carried
into execution by confinement--
``(1) in any place of confinement under the control of any
of the armed forces; or
``(2) in any penal or correctional institution under the
control of the United States or its allies, or which the
United States may be allowed to use.
``(b) Treatment During Confinement by Other Than the Armed
Forces.--Persons confined under subsection (a)(2) in a penal
or correctional institution not under the control of an armed
force are subject to the same discipline and treatment as
persons confined or committed by the courts of the United
States or of the State, District of Columbia, or place in
which the institution is situated.
``SUBCHAPTER VI--POST-TRIAL PROCEDURE AND REVIEW OF MILITARY
COMMISSIONS
``Sec.
``950a. Error of law; lesser included offense.
``950b. Review by the convening authority.
``950c. Waiver or withdrawal of appeal.
``950d. Appeal by the United States.
``950e. Rehearings.
``950f. Review by Court of Military Commission Review.
``950g. Review by the United States Court of Appeals for the District
of Columbia Circuit and the Supreme Court.
``950h. Appellate counsel
``950i. Execution of sentence; suspension of sentence.
``950j. Finality of proceedings, findings, and sentences.
``Sec. 950a. Error of law; lesser included offense
``(a) Error of Law.--A finding or sentence of a military
commission under this chapter may not be held incorrect on
the ground of an error of law unless the error materially
prejudices the substantial rights of the accused.
``(b) Lesser Included Offense.--Any reviewing authority
with the power to approve or affirm a finding of guilty by a
military commission under this chapter may approve or affirm,
instead, so much of the finding as includes a lesser included
offense.
``Sec. 950b. Review by the convening authority
``(a) Notice to Convening Authority of Findings and
Sentence.--The findings and sentence of a military commission
under this chapter shall be reported in writing promptly to
the convening authority after the announcement of the
sentence.
``(b) Submittal of Matters by Accused to Convening
Authority.--(1) The accused may submit to the convening
authority matters for consideration by the convening
authority with respect to the findings and the sentence of
the military commission under this chapter.
``(2)(A) Except as provided in subparagraph (B), a
submittal under paragraph (1) shall be made in writing within
20 days after accused has been give an authenticated record
of trial under section 949o(c) of this title.
``(B) If the accused shows that additional time is required
for the accused to make a submittal under paragraph (1), the
convening authority may, for good cause, extend the
applicable period under subparagraph (A) for not more than an
additional 20 days.
``(3) The accused may waive his right to make a submittal
to the convening authority under paragraph (1). Such a waiver
shall be made in writing, and may not be revoked. For the
purposes of subsection (c)(2), the time within which the
accused may make a submittal under this subsection shall be
deemed to have expired upon the submittal of a waiver under
this paragraph to the convening authority.
``(c) Action by Convening Authority.--(1) The authority
under this subsection to modify the findings and sentence of
a military commission under this chapter is a matter of the
sole discretion and prerogative of the convening authority.
``(2) The convening authority is not required to take
action on the findings of a military commission under this
chapter. If the convening authority takes action on the
findings, the convening authority may, in his sole
discretion, only--
``(A) dismiss any charge or specification by setting aside
a finding of guilty thereto; or
``(B) change a finding of guilty to a charge to a finding
of guilty to an offense that is a lesser included offense of
the offense stated in the charge.
``(3)(A) The convening authority shall take action on the
sentence of a military commission under this chapter.
``(B) Subject to regulations prescribed by the Secretary of
Defense, action under this paragraph may be taken only after
consideration of any matters submitted by the accused under
subsection (b) or after the time for submitting such matters
expires, whichever is earlier.
``(C) In taking action under this paragraph, the convening
authority may, in his sole discretion, approve, disapprove,
commute, or suspend the sentence in whole or in part. The
convening authority may not increase a sentence beyond that
which is found by the military commission.
``(4) The convening authority shall serve on the accused or
on defense counsel notice of any action taken by the
convening authority under this subsection.
``(d) Order of Revision or Rehearing.--(1) Subject to
paragraphs (2) and (3), the convening authority of a military
commission under this chapter may, in his sole discretion,
order a proceeding in revision or a rehearing.
``(2)(A) Except as provided in subparagraph (B), a
proceeding in revision may be ordered by the convening
authority if--
``(i) there is an apparent error or omission in the record;
or
``(ii) the record shows improper or inconsistent action by
the military commission with respect to the findings or
sentence that can be rectified without material prejudice to
the substantial rights of the accused.
``(B) In no case may a proceeding in revision--
``(i) reconsider a finding of not guilty of a specification
or a ruling which amounts to a finding of not guilty;
``(ii) reconsider a finding of not guilty of any charge,
unless there has been a finding of guilty under a
specification laid under that charge, which sufficiently
alleges a violation; or
``(iii) increase the severity of the sentence unless the
sentence prescribed for the offense is mandatory.
[[Page S10023]]
``(3) A rehearing may be ordered by the convening authority
if the convening authority disapproves the findings and
sentence and states the reasons for disapproval of the
findings. If the convening authority disapproves the finding
and sentence and does not order a rehearing, the convening
authority shall dismiss the charges. A rehearing as to the
findings may not be ordered by the convening authority when
there is a lack of sufficient evidence in the record to
support the findings. A rehearing as to the sentence may be
ordered by the convening authority if the convening authority
disapproves the sentence.
``Sec. 950c. Waiver or withdrawal of appeal
``(a) Waiver of Right of Review.--(1) An accused may file
with the convening authority a statement expressly waiving
the right of the accused to appellate review by the Court of
Military Commission Review under section 950f of this title
of the final decision of the military commission under this
chapter.
``(2) A waiver under paragraph (1) shall be signed by both
the accused and a defense counsel.
``(3) A waiver under paragraph (1) must be filed, if at
all, within 10 days after notice of the action is served on
the accused or on defense counsel under section 950b(c)(4) of
this title. The convening authority, for good cause, may
extend the period for such filing by not more than 30 days.
``(b) Withdrawal of Appeal.--Except in a case in which the
sentence as approved under section 950b of this title extends
to death, the accused may withdraw an appeal at any time.
``(c) Effect of Waiver or Withdrawal.--A waiver of the
right to appellate review or the withdrawal of an appeal
under this section bars review under section 950f of this
title.
``Sec. 950d. Appeal by the United States
``(a) Interlocutory Appeal.--(1) Except as provided in
paragraph (2), in a trial by military commission under this
chapter, the United States may take an interlocutory appeal
to the Court of Military Commission Review under section 950f
of this title of any order or ruling of the military judge
that--
``(A) terminates proceedings of the military commission
with respect to a charge or specification;
``(B) excludes evidence that is substantial proof of a fact
material in the proceeding; or
``(C) relates to a matter under subsection (c), (d), or (e)
of section 949d of this title.
``(2) The United States may not appeal under paragraph (1)
an order or ruling that is, or amounts to, a finding of not
guilty by the military commission with respect to a charge or
specification.
``(b) Notice of Appeal.--The United States shall take an
appeal of an order or ruling under subsection (a) by filing a
notice of appeal with the military judge within five days
after the date of the order or ruling.
``(c) Appeal.--An appeal under this section shall be
forwarded, by means specified in regulations prescribed the
Secretary of Defense, directly to the Court of Military
Commission Review. In ruling on an appeal under this section,
the Court may act only with respect to matters of law.
``Sec. 950e. Rehearings
``(a) Composition of Military Commission for Rehearing.--
Each rehearing under this chapter shall take place before a
military commission under this chapter composed of members
who were not members of the military commission which first
heard the case.
``(b) Scope of Rehearing.--(1) Upon a rehearing--
``(A) the accused may not be tried for any offense of which
he was found not guilty by the first military commission; and
``(B) no sentence in excess of or more than the original
sentence may be imposed unless--
``(i) the sentence is based upon a finding of guilty of an
offense not considered upon the merits in the original
proceedings; or
``(ii) the sentence prescribed for the offense is
mandatory.
``(2) Upon a rehearing, if the sentence approved after the
first military commission was in accordance with a pretrial
agreement and the accused at the rehearing changes his plea
with respect to the charges or specifications upon which the
pretrial agreement was based, or otherwise does not comply
with pretrial agreement, the sentence as to those charges or
specifications may include any punishment not in excess of
that lawfully adjudged at the first military commission.
``Sec. 950f. Review by Court of Military Commission Review
``(a) Establishment.--The Secretary of Defense shall
establish a Court of Military Commission Review which shall
be composed of one or more panels, and each such panel shall
be composed of not less than three appellate military judges.
For the purpose of reviewing military commission decisions
under this chapter, the Court may sit in panels or as a whole
in accordance with rules prescribed by the Secretary.
``(b) Appellate Military Judges.--The Secretary shall
assign appellate military judges to a Court of Military
Commission Review. Each appellate military judge shall meet
the qualifications for military judges prescribed by section
948j(b) of this title or shall be a civilian with comparable
qualifications. No person may serve as an appellate military
judge in any case in which that person acted as a military
judge, counsel, or reviewing official.
``(c) Right of Appeal.--The accused may appeal from a final
decision of a military commission, and the United States may
appeal as provided in section 950d of this title, to the
Court of Military Commission Review in accordance with
procedures prescribed under regulations of the Secretary.
``(d) Scope of Review.--In a case reviewed by the Court of
Military Commission Review under this section, the Court may
act only with respect to matters of law.
``Sec. 950g. Review by the United States Court of Appeals for
the District of Columbia Circuit and the Supreme Court
``(a) Review by United States Court of Appeals for the
District of Columbia Circuit.--(1) Subject to the provisions
of this subsection, the United States Court of Appeals for
the District of Columbia Circuit shall have exclusive
jurisdiction to determine the final validity of any judgment
rendered by a military commission under this chapter.
``(2) The United States Court of Appeals for the District
of Columbia Circuit may not determine the final validity of a
judgment of a military commission under this subsection until
all other appeals from the judgment under this chapter have
been waived or exhausted.
``(3)(A) An accused may seek a determination by the United
States Court of Appeals for the District of Columbia Circuit
of the final validity of the judgment of the military
commission under this subsection only upon petition to the
Court for such determination.
``(B) A petition on a judgment under subparagraph (A) shall
be filed by the accused in the Court not later than 20 days
after the date on which--
``(i) written notice of the final decision of the military
commission is served on the accused or defense counsel; or
``(ii) the accused submits, in the form prescribed by
section 950c of this title, a written notice waiving the
right of the accused to review by the Court of Military
Commission Review under section 950f of this title.
``(C) The accused may not file a petition under
subparagraph (A) if the accused has waived the right to
appellate review under section 950c(a) of this title.
``(4) The determination by the United States Court of
Appeals for the District of Columbia Circuit of the final
validity of a judgment of a military commission under this
subsection shall be governed by the provisions of section
1005(e)(3) of the Detainee Treatment Act of 2005 (42 U.S.C.
801 note).
``(b) Review by Supreme Court.--The Supreme Court of the
United States may review by writ of certiorari pursuant to
section 1257 of title 28 the final judgment of the United
States Court of Appeals for the District of Columbia Circuit
in a determination under subsection (a).
``Sec. 950h. Appellate counsel
``(a) Appointment.--The Secretary of Defense shall, by
regulation, establish procedures for the appointment of
appellate counsel for the United States and for the accused
in military commissions under this chapter. Appellate counsel
shall meet the qualifications of counsel for appearing before
military commissions under this chapter.
``(b) Representation of United States.--Appellate counsel
may represent the United States in any appeal or review
proceeding under this chapter. Appellate Government counsel
may represent the United States before the United States
Court of Appeals for the District of Columbia Circuit and the
Supreme Court in cases arising under this chapter when
requested to do so by the Attorney General.
``(c) Representation of Accused.--The accused shall be
represented before the United States Court of Appeals for the
District of Columbia Circuit or the Supreme Court by military
appellate counsel, or by civilian counsel if retained by him.
``Sec. 950i. Execution of sentence; suspension of sentence
``(a) Execution of Sentence of Death Only Upon Approval by
the President.--If the sentence of a military commission
under this chapter extends to death, that part of the
sentence providing for death may not be executed until
approved by the President. In such a case, the President may
commute, remit, or suspend the sentence, or any part thereof,
as he sees fit.
``(b) Execution of Sentence of Death Only Upon Final
Judgment of Legality of Proceedings.--(1) If the sentence of
a military commission under this chapter extends to death,
the sentence may not be executed until there is a final
judgement as to the legality of the proceedings (and with
respect to death, approval under subsection (a)).
``(2) A judgement as to legality of proceedings is final
for purposes of paragraph (1) when--
``(A) the time for the accused to file a petition for
review by the United States Court of Appeals for the District
of Columbia Circuit has expired and the accused has not filed
a timely petition for such review and the case is not
otherwise under review by the Court; or
``(B) review is completed in accordance with the judgment
of the United States Court of Appeals for the District of
Columbia Circuit and (A) a petition for a writ of certiorari
is not timely filed, (B) such a petition is denied by the
Supreme Court, or (C) review is otherwise completed in
accordance with the judgment of the Supreme Court.
``(c) Suspension of Sentence.--The Secretary of the
Defense, or the convening authority acting on the case (if
other than the Secretary), may suspend the execution of
[[Page S10024]]
any sentence or part thereof in the case, except a sentence
of death.
``Sec. 950j. Finality of proceedings, findings, and sentences
``(a) Finality.--The appellate review of records of trial
provided by this chapter, and the proceedings, findings, and
sentences of military commissions as approved, reviewed, or
affirmed as required by this chapter, are final and
conclusive. Orders publishing the proceedings of military
commissions under this chapter are binding upon all
departments, courts, agencies, and officers of the United
States, except as otherwise provided by the President.
``(b) Provisions of Chapter Sole Basis for Review of
Military Commission Procedures and Actions.--Except as
otherwise provided in this chapter and notwithstanding any
other provision of law (including section 2241 of title 28 or
any other habeas corpus provision), no court, justice, or
judge shall have jurisdiction to hear or consider any claim
or cause of action whatsoever, including any action pending
on or filed after the date of enactment of this chapter,
relating to the prosecution, trial, or judgment of a military
commission under this chapter, including challenges to the
lawfulness of procedures of military commissions under this
chapter.
``SUBCHAPTER VII--PUNITIVE MATTERS
``Sec.
``950aa. Definitions; construction of certain offenses; common
circumstances.
``950bb. Statement of substantive offenses.
``950cc. Principals.
``950dd. Accessory after the fact.
``950ee. Conviction of lesser offenses.
``950ff. Attempts.
``950gg. Solicitation.
``950hh. Murder of protected persons.
``950ii. Attacking civilians.
``950jj. Attacking civilian objects.
``950kk. Attacking protected property.
``950ll. Pillaging.
``950mm. Denying quarter.
``950nn. Taking hostages.
``950oo. Employing poison or similar weapons.
``950pp. Using protected persons as a shield.
``950qq. Using protected property as a shield.
``950rr. Torture.
``950ss. Cruel or inhuman treatment.
``950tt. Intentionally causing serious bodily injury.
``950uu. Mutilating or maiming.
``950vv. Murder in violation of the law of war.
``950ww. Destruction of property in violation of the law of war.
``950xx. Using treachery or perfidy.
``950yy. Improperly using a flag of truce.
``950zz. Improperly using a distinctive emblem.
``950aaa. Intentionally mistreating a dead body.
``950bbb. Rape.
``950ccc. Hijacking or hazarding a vessel or aircraft.
``950ddd. Terrorism.
``950eee. Providing material support for terrorism.
``950fff. Wrongfully aiding the enemy.
``950ggg. Spying.
``950hhh. Conspiracy.
``950iii. Contempt.
``950jjj. Perjury and obstruction of justice.
``Sec. 950aa. Definitions; construction of certain offenses;
common circumstances
``(a) Definitions.--In this subchapter:
``(1) The term `military objective' means combatants and
those objects during an armed conflict which, by their
nature, location, purpose, or use, effectively contribute to
the war-fighting or war-sustaining capability of an opposing
force and whose total or partial destruction, capture, or
neutralization would constitute a definite military advantage
to the attacker under the circumstances at the time of an
attack.
``(2) The term `protected person' means any person entitled
to protection under one or more of the Geneva Conventions,
including civilians not taking an active part in hostilities,
military personnel placed out of combat by sickness, wounds,
or detention, and military medical or religious personnel.
``(3) The term `protected property' means any property
specifically protected by the law of war, including buildings
dedicated to religion, education, art, science, or charitable
purposes, historic monuments, hospitals, and places where the
sick and wounded are collected, but only if and to the extent
such property is not being used for military purposes or is
not otherwise a military objective. The term includes objects
properly identified by one of the distinctive emblems of the
Geneva Conventions, but does not include civilian property
that is a military objective.
``(b) Construction of Certain Offenses.--The intent
required for offenses under sections 950hh, 950ii, 950jj,
950kk, and 950ss of this title precludes their applicability
with regard to collateral damage or to death, damage, or
injury incident to a lawful attack.
``(c) Common Circumstances.--An offense specified in this
subchapter is triable by military commission under this
chapter only if the offense is committed in the context of
and associated with armed conflict.
``Sec. 950bb. Statement of substantive offenses
``(a) Purpose.--The provisions of this subchapter codify
offenses that have traditionally been triable by military
commissions. This chapter does not establish new crimes that
did not exist before its enactment, but rather codifies those
crimes for trial by military commission.
``(b) Effect.--Because the provisions of this subchapter
(including provisions that incorporate definitions in other
provisions of law) are declarative of existing law, they do
not preclude trial for crimes that occurred before the date
of the enactment of this chapter.
``Sec. 950cc. Principals
``Any person is punishable as a principle under this
chapter who--
``(1) commits an offense punishable by this chapter, or
aids, abets, counsels, commands, or procures its commission;
``(2) causes an act to be done which if directly performed
by him would be punishable by this chapter; or
``(3) is a superior commander who, with regard to acts
punishable under this chapter, knew, had reason to know, or
should have known, that a subordinate was about to commit
such acts or had done so and the superior failed to take the
necessary and reasonable measures to prevent such acts or to
punish the perpetrators thereof.
``Sec. 950dd. Accessory after the fact
``Any person subject to this chapter who, knowing that an
offense punishable by this chapter has been committed,
receives, comforts, or assists the offender in order to
hinder or prevent his apprehension, trial, or punishment
shall be punished as a military commission under this chapter
may direct.
``Sec. 950ee. Conviction of lesser offenses
``An accused may be found guilty of an offense necessarily
included in the offense charged or of an attempt to commit
either the offense charged or an attempt to commit either the
offense charged or an offense necessarily included therein.
``Sec. 950ff. Attempts
``(a) In General.--Any person subject to this chapter who
attempts to commit any offense punishable by this chapter
shall be punished as a military commission under this chapter
may direct.
``(b) Scope of Offense.--An act, done with specific intent
to commit an offense under this chapter, amounting to more
than mere preparation and tending, even though failing, to
effect its commission, is an attempt to commit that offense.
``(c) Effect of Consummation.--Any person subject to this
chapter may be convicted of an attempt to commit an offense
although it appears on the trial that the offense was
consummated.
``Sec. 950gg. Solicitation
``Any person subject to this chapter who solicits or
advises another or others to commit one or more substantive
offenses triable by military commission under this chapter
shall, if the offense solicited or advised is attempted or
committed, be punished with the punishment provided for the
commission of the offense, but, if the offense solicited or
advised is not committed or attempted, he shall be punished
as a military commission under this chapter may direct.
``Sec. 950hh. Murder of protected persons
``Any person subject to this chapter who intentionally
kills one or more protected persons shall be punished by
death or such other punishment as a military commission under
this chapter may direct.
``Sec. 950ii. Attacking civilians
``Any person subject to this chapter who intentionally
engages in an attack upon a civilian population as such, or
individual civilians not taking active part in hostilities,
shall be punished, if death results to one or more of the
victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does
not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``Sec. 950jj. Attacking civilian objects
``Any person subject to this chapter who intentionally
engages in an attack upon a civilian object that is not a
military objective shall be punished as a military commission
under this chapter may direct.
``Sec. 950kk. Attacking protected property
``Any person subject to this chapter who intentionally
engages in an attack upon protected property shall be
punished as a military commission under this chapter may
direct.
``Sec. 950ll. Pillaging
``Any person subject to this chapter who intentionally and
in the absence of military necessity appropriates or seizes
property for private or personal use, without the consent of
a person with authority to permit such appropriation or
seizure, shall be punished as a military commission under
this chapter may direct.
``Sec. 950mm. Denying quarter
``Any person subject to this chapter who, with effective
command or control over subordinate groups, declares, orders,
or otherwise indicates to those groups that there shall be no
survivors or surrender accepted, with the intent to threaten
an adversary or to conduct hostilities such that there would
be no survivors or surrender accepted, shall be punished as a
military commission under this chapter may direct.
``Sec. 950nn. Taking hostages
``Any person subject to this chapter who, having knowingly
seized or detained one or more persons, threatens to kill,
injure, or
[[Page S10025]]
continue to detain such person or persons with the intent of
compelling any nation, person other than the hostage, or
group of persons to act or refrain from acting as an explicit
or implicit condition for the safety or release of such
person or persons, shall be punished, if death results to one
or more of the victims, by death or such other punishment as
a military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``Sec. 950oo. Employing poison or similar weapons
``Any person subject to this chapter who intentionally, as
a method of warfare, employs a substance or weapon that
releases a substance that causes death or serious and lasting
damage to health in the ordinary course of events, through
its asphyxiating, bacteriological, or toxic properties, shall
be punished, if death results to one or more of the victims,
by death or such other punishment as a military commission
under this chapter may direct, and, if death does not result
to any of the victims, by such punishment, other than death,
as a military commission under this chapter may direct.
``Sec. 950pp. Using protected persons as a shield
``Any person subject to this chapter who positions, or
otherwise takes advantage of, a protected person with the
intent to shield a military objective from attack. or to
shield, favor, or impede military operations, shall be
punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any
of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``Sec. 950qq. Using protected property as a shield
``Any person subject to this chapter who positions, or
otherwise takes advantage of the location of, protected
property with the intent to shield a military objective from
attack, or to shield, favor, or impede military operations,
shall be punished as a military commission under this chapter
may direct.
``Sec. 950rr. Torture
``(a) Offense.--Any person subject to this chapter who
commits an act specifically intended to inflict severe
physical or mental pain or suffering (other than pain or
suffering incidental to lawful sanctions) upon another person
within his custody or physical control for the purpose of
obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination
of any kind, shall be punished, if death results to one or
more of the victims, by death or such other punishment as a
military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``(b) Severe Mental Pain or Suffering Defined.--In this
section, the term `severe mental pain or suffering' has the
meaning given that term in section 2340(2) of title 18.
``Sec. 950ss. Cruel or inhuman treatment
``(a) Offense.--Any person subject to this chapter who
commits, or conspires or attempts to commit, an act intended
to inflict severe or serious physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions), including serious physical abuse, upon another
within his custody or control shall be punished, if death
results to the victim, by death or such other punishment as a
military commission under this chapter may direct, and, if
death does not result to the victim, by such punishment,
other than death, as a military commission under this chapter
may direct.
``(b) Definitions.--In this section:
``(1) The term `severe mental pain or suffering' has the
meaning given that term in section 2340(2) of title 18.
``(2) The term `serious physical pain or suffering' means
bodily injury that involves--
``(A) a substantial risk of death;
``(B) extreme physical pain;
``(C) a burn or physical disfigurement of a serious nature
(other than cuts, abrasions, or bruises); or
``(D) significant loss or impairment of the function of a
bodily member, organ, or mental faculty.
``(3) The term `serious mental pain or suffering' has the
meaning given the term `severe mental pain or suffering' in
section 2340(2) of title 18, except that--
``(A) the term `serious' shall replace the term `severe'
where it appears; and
``(B) as to conduct occurring after the date of the
enactment of the Military Commission Act of 2006, the term
`serious and non-transitory mental harm (which need not be
prolonged)' shall replace the term `prolonged mental harm'
where it appears.
``Sec. 950tt. Intentionally causing serious bodily injury
``(a) Offense.--Any person subject to this chapter who
intentionally causes serious bodily injury to one or more
persons, including lawful combatants, in violation of the law
of war shall be punished, if death results to one or more of
the victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does
not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``(b) Serious Bodily Injury Defined.--In this section, the
term `serious bodily injury' means bodily injury which
involves--
``(1) a substantial risk of death;
``(2) extreme physical pain;
``(3) protracted and obvious disfigurement; or
``(4) protracted loss or impairment of the function of a
bodily member, organ, or mental faculty.
``Sec. 950uu. Mutilating or maiming
``Any person subject to this chapter who intentionally
injures one or more protected persons by disfiguring the
person or persons by any mutilation of the person or persons,
or by permanently disabling any member, limb, or organ of the
body of the person or persons, without any legitimate medical
or dental purpose, shall be punished, if death results to one
or more of the victims, by death or such other punishment as
a military commission under this chapter may direct, and, if
death does not result to any of the victims, by such
punishment, other than death, as a military commission under
this chapter may direct.
``Sec. 950vv. Murder in violation of the law of war
``Any person subject to this chapter who intentionally
kills one or more persons, including lawful combatants, in
violation of the law of war shall be punished by death or
such other punishment as a military commission under this
chapter may direct.
``Sec. 950ww. Destruction of property in violation of the law
of war
``Any person subject to this chapter who intentionally
destroys property belonging to another person in violation of
the law of war shall punished as a military commission under
this chapter may direct.
``Sec. 950xx. Using treachery or perfidy
``Any person subject to this chapter who, after inviting
the confidence or belief of one or more persons that they
were entitled to, or obliged to accord, protection under the
law of war, intentionally makes use of that confidence or
belief in killing, injuring, or capturing such person or
persons shall be punished, if death results to one or more of
the victims, by death or such other punishment as a military
commission under this chapter may direct, and, if death does
not result to any of the victims, by such punishment, other
than death, as a military commission under this chapter may
direct.
``Sec. 950yy. Improperly using a flag of truce
``Any person subject to this chapter who uses a flag of
truce to feign an intention to negotiate, surrender, or
otherwise suspend hostilities when there is no such intention
shall be punished as a military commission under this chapter
may direct.
``Sec. 950zz. Improperly using a distinctive emblem
``Any person subject to this chapter who intentionally uses
a distinctive emblem recognized by the law of war for
combatant purposes in a manner prohibited by the law of war
shall be punished as a military commission under this chapter
may direct.
``Sec. 950aaa. Intentionally mistreating a dead body
``Any person subject to this chapter who intentionally
mistreats the body of a dead person, without justification by
legitimate military necessary, shall be punished as a
military commission under this chapter may direct.
``Sec. 950bbb. Rape
``Any person subject to this chapter who forcibly or with
coercion or threat of force wrongfully invades the body of a
person by penetrating, however slightly, the anal or genital
opening of the victim with any part of the body of the
accused, or with any foreign object, shall be punished as a
military commission under this chapter may direct.
``Sec. 950ccc. Hijacking or hazarding a vessel or aircraft
``Any person subject to this chapter who intentionally
seizes, exercises unauthorized control over, or endangers the
safe navigation of a vessel or aircraft that is not a
legitimate military objective shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims,
by such punishment, other than death, as a military
commission under this chapter may direct.
``Sec. 950ddd. Terrorism
``Any person subject to this chapter who intentionally
kills or inflicts great bodily harm on one or more protected
persons, or intentionally engages in an act that evinces a
wanton disregard for human life, in a manner calculated to
influence or affect the conduct of government or civilian
population by intimidation or coercion, or to retaliate
against government conduct, shall be punished, if death
results to one or more of the victims, by death or such other
punishment as a military commission under this chapter may
direct, and, if death does not result to any of the victims,
by such punishment, other than death, as a military
commission under this chapter may direct.
``Sec. 950eee. Providing material support for terrorism
``(a) Offense.--Any person subject to this chapter who
provides material support or resources, knowing or intending
that they are to be used in preparation for, or in carrying
out, an act of terrorism (as set forth in section 950ddd of
this title), or who intentionally provides material support
or resources to an international terrorist organization
engaged in hostilities against the
[[Page S10026]]
United States, knowing that such organization has engaged or
engages in terrorism (as so set forth), shall be punished as
a military commission under this chapter may direct.
``(b) Material Support or Resources Defined.--In this
section, the term `material support or resources' has the
meaning given that term in section 2339A(b) of title 18.
``Sec. 950fff. Wrongfully aiding the enemy
``Any person subject to this chapter who, in breach of an
allegiance or duty to the United States, knowingly and
intentionally aids an enemy of the United States, or one of
the co-belligerents of the enemy, shall be punished as a
military commission under this chapter may direct.
``Sec. 950ggg. Spying
``Any person subject to this chapter who, in violation of
the law of war and with intent or reason to believe that it
is to be used to the injury of the United States or to the
advantage of a foreign power, collects or attempts to collect
information by clandestine means or while acting under false
pretenses, for the purpose of conveying such information to
an enemy of the United States, or one of the co-belligerents
of the enemy, shall be punished by death or such other
punishment as a military commission under this chapter may
direct.
``Sec. 950hhh. Conspiracy
``Any person subject to this chapter who conspires to
commit one or more substantive offenses triable by military
commission under this subchapter, and who knowingly does any
overt act to effect the object of the conspiracy, shall be
punished, if death results to one or more of the victims, by
death or such other punishment as a military commission under
this chapter may direct, and, if death does not result to any
of the victims, by such punishment, other than death, as a
military commission under this chapter may direct.
``Sec. 950iii. Contempt
``A military commission under this chapter may punish for
contempt any person who uses any menacing word, sign, or
gesture in its presence, or who disturbs its proceedings by
any riot or disorder.
``Sec. 950jjj. Perjury and obstruction of justice
``A military commission under this chapter may try offenses
and impose such punishment as the military commission may
direct for perjury, false testimony, or obstruction of
justice related to the military commission.''.
(2) Tables of chapters amendments.--The tables of chapters
at the beginning of subtitle A and part II of subtitle A of
title 10, United States Code, are each amended by inserting
after the item relating to chapter 47 the following new item:
``Chapter 47A. Military Commissions.............................948a''.
(b) Submittal of Procedures to Congress.--
(1) Submittal of procedures.--Not later than 90 days after
the date of the enactment of this Act, the Secretary of
Defense shall submit to the Committees on Armed Services of
the Senate and the House of Representatives a report setting
forth the procedures for military commissions prescribed
under chapter 47A of title 10, United States Code (as added
by subsection (a)).
(2) Submittal of modifications.--Not later than 60 days
before the date on which any proposed modification of the
procedures described in paragraph (1) shall go into effect,
the Secretary shall submit to the committees of Congress
referred to in that paragraph a report describing such
modification.
SEC. 105. AMENDMENTS TO OTHER LAWS.
(a) Detainee Treatment Act of 2005.--Section 1004(b) of the
Detainee Treatment Act of 2005 (title X of Public Law 109-
148; 119 Stat. 2740; 42 U.S.C. 200dd-1(b)) is amended--
(1) by striking ``may provide'' and inserting ``shall
provide'';
(2) by inserting ``or investigation'' after ``criminal
prosecution''; and
(3) by inserting ``whether before United States courts or
agencies, foreign courts or agencies, or international courts
or agencies,'' after ``described in that subsection,''.
(b) Uniform Code of Military Justice.--Chapter 47 of title,
10, United States Code (the Uniform Code of Military
Justice), is amended as follows:
(1) Section 802 (article 2 of the Uniform Code of Military
Justice) is amended by adding at the end the following new
paragraph:
``(13) Lawful enemy combatants (as that term is defined in
section 948a(3) of this title) who violate the law of war.''.
(2) Section 821 (article 21 of the Uniform Code of Military
Justice) is amended by striking ``by statute or law of war''.
(3) Section 836(a) (article 36(a) of the Uniform Code of
Military Justice) is amended by inserting ``(other than
military commissions under chapter 47A of this title)'' after
``other military tribunals''.
(c) Punitive Article of Conspiracy.--Section 881 of title
10, United States Code (article 81 of the Uniform Code of
Military Justice)), is amended--
(1) by inserting ``(a)'' before ``Any person''; and
(2) by adding at the end the following new subsection:
``(b) Any person subject to this chapter or chapter 47A of
this title who conspires with any other person to commit an
offense under the law of war, and who knowingly does an overt
act to effect the object of the conspiracy, shall be
punished, if death results to one or more of the victims, by
death or such other punishment as a court-martial or military
commission may direct, and, if death does not result to any
of the victims, by such punishment, other than death, as a
court-martial or military commission may direct.''.
(d) Review of Judgments of Military Commissions.--
(1) Review by supreme court.--Section 1259 of title 28,
United States Code, is amended by adding at the end the
following new paragraph:
``(5) Cases tried by military commission and reviewed by
the United States Court of Appeals for the District of
Columbia Circuit under section 950g of title 10.''.
(2) Detainee treatment act of 2005.--Section 1005(e)(3) of
the Detainee Treatment Act of 2005 (title X of Public Law
109-148; 119 Stat. 2740; 10 U.S.C. 801 note) is amended--
(A) in subparagraph (A), by striking ``pursuant to Military
Commission Order No. 1. dated August 31, 2005 (or any
successor military order)'' and inserting ``by a military
commission under chapter 47A of title 10, United States
Code'';
(B) by striking subparagraph (B) and inserting the
following new subparagraph (B):
``(B) Grant of review.--Review under this paragraph shall
be as of right.'';
(C) in subparagraph (C)--
(i) in clause (i)--
(I) by striking ``pursuant to the military order'' and
inserting ``by a military commission''; and
(II) by striking ``at Guantanamo Bay, Cuba''; and
(ii) in clause (ii), by striking ``pursuant to such
military order'' and inserting ``by the military
commission''; and
(D) in subparagraph (D)(i), by striking ``specified in the
military order'' and inserting ``specified for a military
commission''.
SEC. 106. HABEAS CORPUS MATTERS.
(a) In General.--Section 2241 of title 28, United States
Code, is amended--
(1) by striking subsection (e) (as added by section
1005(e)(1) of Public Law 109-148 (119 Stat. 2742)) and by
striking subsection (e) (as added by added by section
1405(e)(1) of Public Law 109-163 (119 Stat. 3477)); and
(2) by adding at the end the following new subsection:
``(e)(1) No court, justice, or judge shall have
jurisdiction to hear or consider an application for a writ of
habeas corpus filed by or on behalf of an alien detained by
the United States who--
``(A) is currently in United States custody; and
``(B) has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such
determination.
``(2) Except as provided in paragraphs (2) and (3) of
section 1005(e) of the Detainee Treatment Act of 2005 (10
U.S.C. 801 note), no court, justice, or judge shall have
jurisdiction to hear or consider any other action against the
United States or its agents relating to any aspect of the
detention, transfer, treatment, trial, or conditions of
confinement of an alien detained by the United States who--
``(A) is currently in United States custody; and
``(B) has been determined by the United States to have been
properly detained as an enemy combatant or is awaiting such
determination.''.
(b) Effective Date.--The amendments made by subsection (a)
shall take effect on the date of the enactment of this Act,
and shall apply to all cases, without exception, pending on
or after the date of the enactment of this Act which relate
to any aspect of the detention, transfer, treatment, trial,
or conditions of detention of an alien detained by the United
States since September 11, 2001.
SEC. 107. TREATY OBLIGATIONS NOT ESTABLISHING GROUNDS FOR
CERTAIN CLAIMS.
(a) In General.--No person may invoke the Geneva
Conventions, or any protocols thereto, in any habeas or civil
action or proceeding to which the United States, or a current
or former officer, employee, member of the Armed Forces, or
other agent of the United States, is a party, as a source of
rights in any court of the United States or its States or
territories.
(b) Geneva Conventions Defined.--In this section, the term
``Geneva Conventions'' means--
(1) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3217);
(2) the Convention for the Amelioration of the Condition of
the Wounded, Sick, and Shipwrecked Members of the Armed
Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(3) the Convention Relative to the Treatment of Prisoners
of War, done at Geneva August 12, 1949 (6 UST 3316); and
(4) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6 UST
3516).
SEC. 108. IMPLEMENTATION OF TREATY OBLIGATIONS.
(a) Implementation of Treaty Obligations.--
(1) In general.--The acts enumerated in subsection (d) of
section 2441 of title 18, United States Code, as added by
subsection (b) of this section, and in subsection (c) of this
section, constitute violations of common Article 3 of the
Geneva Conventions prohibited by United States law.
[[Page S10027]]
(2) Prohibition on grave breaches.--The provisions of
section 2441 of title 18, United States Code, as amended by
this section, fully satisfy the obligation under Article 129
of the Third Geneva Convention for the United States to
provide effective penal sanctions for grave breaches which
are encompassed in common Article 3 in the context of an
armed conflict not of an international character. No foreign
or international source of law shall supply a basis for a
rule of decision in the courts of the United States in
interpreting the prohibitions enumerated in subsection (d) of
such section 2441.
(3) Interpretation by the president.--(A) As provided by
the Constitution and by this section, the President has the
authority for the United States to interpret the meaning and
application of the Geneva Conventions and to promulgate
higher standards and administrative regulations for
violations of treaty obligations which are not grave breaches
of the Geneva Conventions.
(B) The President shall issue interpretations described by
subparagraph (A) by Executive Order published in the Federal
Register.
(C) Any Executive Order published under this paragraph
shall be authoritative (as to non-grave breach provisions of
common Article 3) as a matter of United States law, in the
same manner as other administrative regulations.
(D) Nothing in this section shall be construed to affect
the constitutional functions and responsibilities of Congress
and the judicial branch of the United States.
(4) Definitions.--In this subsection:
(A) The term ``Geneva Conventions'' means--
(i) the Convention for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field, done at
Geneva August 12, 1949 (6 UST 3217);
(ii) the Convention for the Amelioration of the Condition
of the Wounded, Sick, and Shipwrecked Members of the Armed
Forces at Sea, done at Geneva August 12, 1949 (6 UST 3217);
(iii) the Convention Relative to the Treatment of Prisoners
of War, done at Geneva August 12, 1949 (6 UST 3316); and
(iv) the Convention Relative to the Protection of Civilian
Persons in Time of War, done at Geneva August 12, 1949 (6 UST
3516).
(B) The term ``Third Geneva Convention'' means the
international convention referred to in subparagraph
(A)(iii).
(b) Revision to War Crimes Offense Under Federal Criminal
Code.--
(1) In general.--Section 2441 of title 18, United States
Code, is amended--
(A) in subsection (c), by striking paragraph (3) and
inserting the following new paragraph (3):
``(3) which constitutes a grave breach of common Article 3
as defined in subsection (d) when committed in the context of
and in association with an armed conflict not of an
international character; or''; and
(B) by adding at the end the following new subsection:
``(d) Common Article 3 Violations.--
``(1) Prohibited conduct.--In subsection (c)(3), the term
`grave breach of common Article 3' means any conduct (such
conduct constituting a grave breach of common Article 3 of
the international conventions done at Geneva August 12,
1949), as follows:
``(A) Torture.--The act of a person who commits, or
conspires or attempts to commit, an act specifically intended
to inflict severe physical or mental pain or suffering (other
than pain or suffering incidental to lawful sanctions) upon
another person within his custody or physical control for the
purpose of obtaining information or a confession, punishment,
intimidation, coercion, or any reason based on discrimination
of any kind.
``(B) Cruel or inhuman treatment.--The act of a person who
commits, or conspires or attempts to commit, an act intended
to inflict severe or serious physical or mental pain or
suffering (other than pain or suffering incidental to lawful
sanctions), including serious physical abuse, upon another
within his custody or control.
``(C) Performing biological experiments.--The act of a
person who subjects, or conspires or attempts to subject, one
or more persons within his custody or physical control to
biological experiments without a legitimate medical or dental
purpose and in so doing endangers the body or health of such
person or persons.
``(D) Murder.--The act of a person who intentionally kills,
or conspires or attempts to kill, or kills whether
intentionally or unintentionally in the course of committing
any other offense under this subsection, one or more persons
taking no active part in the hostilities, including those
placed out of combat by sickness, wounds, detention, or any
other cause.
``(E) Mutilation or maiming.--The act of a person who
intentionally injures, or conspires or attempts to injure, or
injures whether intentionally or unintentionally in the
course of committing any other offense under this subsection,
one or more persons taking no active part in the hostilities,
including those placed out of combat by sickness, wounds,
detention, or any other cause, by disfiguring the person or
persons by any mutilation thereof or by permanently disabling
any member, limb, or organ of his body, without any
legitimate medical or dental purpose.
``(F) Intentionally causing serious bodily injury.--The act
of a person who intentionally causes, or conspires or
attempts to cause, serious bodily injury to one or more
persons, including lawful combatants, in violation of the law
of war.
``(G) Rape.--The act of a person who forcibly or with
coercion or threat of force wrongfully invades, or conspires
or attempts to invade, the body of a person by penetrating,
however slightly, the anal or genital opening of the victim
with any part of the body of the accused, or with any foreign
object.
``(H) Sexual assault or abuse.--The act of a person who
forcibly or with coercion or threat of force engages, or
conspires or attempts to engage, in sexual contact with one
or more persons, or causes, or conspires or attempts to
cause, one or more persons to engage in sexual contact.
``(I) Taking hostages.--The act of a person who, having
knowingly seized or detained one or more persons, threatens
to kill, injure, or continue to detain such person or persons
with the intent of compelling any nation, person other than
the hostage, or group of persons to act or refrain from
acting as an explicit or implicit condition for the safety or
release of such person or persons.
``(2) Definitions.--In the case of an offense under
subsection (a) by reason of subsection (c)(3)--
``(A) the term `severe mental pain or suffering' shall be
applied for purposes of paragraphs (1)(A) and (1)(B) in
accordance with the meaning given that term in section
2340(2) of this title;
``(B) the term `serious bodily injury' shall be applied for
purposes of paragraph (1)(F) in accordance with the meaning
given that term in section 113(b)(2) of this title;
``(C) the term `sexual contact' shall be applied for
purposes of paragraph (1)(G) in accordance with the meaning
given that term in section 2246(3) of this title;
``(D) the term `serious physical pain or suffering' shall
be applied for purposes of paragraph (1)(B) as meaning bodily
injury that involves--
``(i) a substantial risk of death;
``(ii) extreme physical pain;
``(iii) a burn or physical disfigurement of a serious
nature (other than cuts, abrasions, or bruises); or
``(iv) significant loss or impairment of the function of a
bodily member, organ, or mental faculty; and
``(E) the term `serious mental pain or suffering' shall be
applied for purposes of paragraph (1)(B) in accordance with
the meaning given the term `severe mental pain or suffering'
(as defined in section 2340(2) of this title), except that--
``(i) the term `serious' shall replace the term `severe'
where it appears; and
``(ii) as to conduct occurring after the date of the
enactment of the Military Commission Act of 2006, the term
`serious and non-transitory mental harm (which need not be
prolonged)' shall replace the term `prolonged mental harm'
where it appears.
``(3) Inapplicability of certain provisions with respect to
collateral damage or incident of lawful attack.--The intent
specified for the conduct stated in subparagraphs (D), (E),
and (F) or paragraph (1) precludes the applicability of those
subparagraphs to an offense under subsection (a) by reasons
of subsection (c)(3) with respect to--
``(A) collateral damage; or
``(B) death, damage, or injury incident to a lawful attack.
``(4) Inapplicability of taking hostages to prisoner
exchange.--Paragraph (1)(I) does not apply to an offense
under subsection (a) by reason of subsection (c)(3) in the
case of a prisoner exchange during wartime.''.
(2) Retroactive applicability.--The amendments made by this
subsection, except as specified in subsection (d)(2)(E) of
section 2441 of title 18, United States Code, shall take
effect as of November 26, 1997, as if enacted immediately
after the amendments made by section 583 of Public Law 105-
118 (as amended by section 4002(e)(7) of Public Law 107-273).
(c) Additional Prohibition on Cruel, Inhuman, or Degrading
Treatment or Punishment.--
(1) In general.--No individual in the custody or under the
physical control of the United States Government, regardless
of nationality or physical location, shall be subject to
cruel, inhuman, or degrading treatment or punishment.
(2) Cruel, inhuman, or degrading treatment or punishment
defined.--In this subsection, the term ``cruel, inhuman, or
degrading treatment or punishment'' means cruel, unusual, and
inhumane treatment or punishment prohibited by the Fifth,
Eighth, and Fourteenth Amendments to the Constitution of the
United States, as defined in the United States Reservations,
Declarations and Understandings to the United Nations
Convention Against Torture and Other Forms of Cruel, Inhuman
or Degrading Treatment or Punishment done at New York,
December 10, 1984.
(3) Compliance.--The President shall take appropriate
action to ensure compliance with this subsection, including
through the establishment of administrative rules and
procedures.
SEC. 109. DETENTION COVERED BY REVIEW OF DECISIONS OF
COMBATANT STATUS REVIEW TRIBUNALS OF PROPRIETY
OF DETENTION.
Section 1005(e)(2)(B)(i) of the Detainee Treatment Act of
2005 (title X of Public Law 109-148; 119 Stat. 2742; 10
U.S.C. 801 note) is
[[Page S10028]]
amended by striking ``the Department of Defense at Guantanamo
Bay, Cuba'' and inserting ``the United States''.
SEC. 110. SEVERABILITY.
If any provision of this Act or amendment made by a
provision of this Act, or the application of such provision
or amendment to any person or circumstance, is held to be
unconstitutional, the remainder of this Act and the
amendments made by this Act, and the application of such
provisions and amendments to any other person or
circumstance, shall not be affected thereby.
TITLE II--TERRORIST SURVEILLANCE ACT
SECTION 201. SHORT TITLE.
This title may be cited as the ``Terrorist Surveillance Act
of 2006''.
SEC. 202. FINDINGS.
Congress finds the following:
(1) After the terrorist attacks of September 11, 2001,
President Bush authorized the National Security Agency to
intercept communications between people inside the United
States, including American citizens, and terrorism suspects
overseas.
(2) One of the lessons learned from September 11, 2001, is
that the enemies who seek to greatly harm and terrorize our
Nation utilize technologies and techniques that defy
conventional law enforcement practices.
(3) The President, as the constitutional officer most
directly responsible for protecting the United States from
attack, requires the ability and means to detect and track an
enemy that can master and exploit modern technology.
(4) It is equally essential, however, that in protecting
the United States against our enemies, the President does not
compromise the very civil liberties that he seeks to
safeguard. As Justice Hugo Black observed, ``The President's
power, if any, to issue [an] order must stem either from an
Act of Congress or from the Constitution itself.'' Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (opinion
by Black, J.). Similarly, in 2004, Justice Sandra Day
O'Connor explained in her plurality opinion for the Supreme
Court in Hamdi v. Rumsfeld: ``We have long since made clear
that a state of war is not a blank check for the President
when it comes to the rights of the Nation's citizens.'' Hamdi
v. Rumsfeld, 542 U.S. 507, 536 (2004) (citations omitted).
(5) When deciding issues of national security, it is in our
Nation's best interest that, to the extent feasible, all 3
branches of the Federal Government should be involved. This
helps guarantee that electronic surveillance programs do not
infringe on the constitutional rights of Americans, while at
the same time ensuring that the President has all the powers
and means necessary to detect and track our enemies and
protect our Nation from attack.
(6) As Justice Sandra Day O'Connor explained in her
plurality opinion for the Supreme Court in Hamdi v. Rumsfeld,
``Whatever power the United States Constitution envisions for
the Executive in its exchanges with other nations or with
enemy organizations in times of conflict, it most assuredly
envisions a role for all 3 branches when individual liberties
are at stake.'' Hamdi v. Rumsfeld, 542 U.S. 507, 536 (2004)
(citations omitted).
(7) Similarly, Justice Jackson famously explained in his
Youngstown concurrence: ``When the President acts pursuant to
an express or implied authorization of Congress, his
authority is at its maximum, for it includes all that he
possesses in his own right plus all that Congress can
delegate . . . When the President acts in absence of either a
congressional grant or denial of authority, he can only rely
upon his own independent powers, but there is a zone of
twilight in which he and Congress may have concurrent
authority, or in which its distribution is uncertain.
Therefore, congressional inertia, indifference or quiescence
may sometimes, at least as a practical matter, enable, if not
invite, measures on independent presidential responsibility .
. . When the President takes measures incompatible with the
expressed or implied will of Congress, his power is at its
lowest ebb, for then he can rely only upon his own
constitutional powers minus any constitutional powers of
Congress over the matter. Courts can sustain exclusive
Presidential control in such a case only by disabling the
Congress from acting upon the subject.'' Youngstown Sheet &
Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J.,
concurring).
(8) Congress clearly has the authority to enact legislation
with respect to electronic surveillance programs. The
Constitution provides Congress with broad powers of oversight
over national security and foreign policy, under article I,
section 8 of the Constitution of the United States, which
confers on Congress numerous powers, including the powers--
(A) ``To declare War, grant Letters of Marque and Reprisal,
and make Rules concerning Captures on Land and Water'';
(B) ``To
